RF~CF~iV~!D

CLERK’S OFr~E

DEC 212004

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD STATE OF

ILLtNOiS

Pollution Control Board

IN THE MATTER OF:

INTERIM PHOSPHORUS EFFLUENT

STANDARD, PROPOSED 35 ILL. ADM.

304.123 (U-K)

)

)

)

)

)

)

)

R4-26

(Rulemaking

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Water)

TO:

See Attached Certificate of Service

PLEASE

TAKE

NOTICE that on Tuesday, December 21,

2004, we filed the attached

Comments ofthe Illinois Association of Wastewater Agencies with the Clerk of

the

Illinois

Pollution Control Board, a copy ofwhich is herewith served upon you.

Roy M. Harsch

GARDNER CARTON & DOUGLAS LLP

191 N. Wacker Drive

-

Suite 3700

Chicago, Illinois 60606-1698

(312)

569-1440

Respectfully submitted,

TION OF WASTEWATER

THIS FILING IS SUBMITTED ON RECYCLED PAPER

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RE~~~~VED

CLERK’S OFFICE

BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD

DEC 2 12004

STATE OF ILLINOIS

IN THE MATTER OF:

)

Pollution Control Board

)

INTERIM

PHOSPHORUS EFFLUENT

)

R4-26

STANDARD,

PROPOSED

35 ILL. ADM.

)

(Rulemaking

-

Water)

304.123 (U-K)

)

)

)

COMMENTS OF THE

ILLINOIS ASSOCIATION OF WASTEWATER AGENCIES

Introduction

The Illinois Association ofWastewater Agencies (JAWA) appreciates the opportunity

to provide comment to the Board on the proposed rulemaking filed by the Illinois EPA to

establish an interim phosphorus limitation for new or expanded treatment facilities. IAWA is

a member group consisting of 98 members, of which

55

are agency members. IAWA’s

members operate approximately

75

publicly-owned treatment works (POTWs), including

almost all of the state’s major facilities. In addition to these sanitary districts, water

reclamation districts and municipalities, the largest Illinois private wastewater utility that

operates 12 plants is also a member.

Representatives ofthese organizations are public officials-and include both elected and

appointed trustees of districts and appointed officials at municipalities throughout the state.

IAWA constituents are the citizens and taxpayers ofIllinois, who are the same constituents as

any other state or public agency. JAWA members are committed to both ensuring that the

aquatic environment is maintained in a healthy state and to providing wastewater treatment

services at a reasonable cost to their constituents. JAWA members take seriously their duty to

properly treat wastewater before it is discharged as clean effluent to the waterways ofIllinois,

and the elected and appointed trustees and officials work to further the very best interests of

their constituents.

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JAWA opposes the proposed rule and believes the proposal to be insufficiently

supported and not based on sound science, and consequently deficient in meeting the

requirements required by statute and Board rules to allow the Board to adopt standards. As

proponent ofthe proposal, the illinois EPA is required to provide an environmental, technical,

and economicjustification for the proposed rule. See 35 Il. Adni. Code 102.202. The illinois

EPA has not provided an adequate environmental, technical or economic justification for a

new statewide effluent limitation.

JAWA is proud of its long commitment to the application of sound science to the

development of water quality and effluent standards. When standards are developed from

sound science, IAWA members have a high level of confidence that those standards will be in

place for many years. In contrast, when standards are developed without the use of sound

science, JAWA members are forced to use interim solutions to treatment needs to avoid

building facilities that might not be needed once more appropriate limits are developed.

Lack of Scientific Support for Proposed Rule

IAWA believes these standards are based not on sound science but are improperly

based on an election year pledge by Governor Rod Blagojevich and Illinois EPA’s desire to

reduce the regulatory burden associated with the NPDES permit program. Illinois EPA

acknowledged in a press release that the purpose of the rule was to fulfill the Governor’s

“pledge to address the impact of phosphorus in sewage plant discharges.” See Exhibit 1,

Illinois EPA Environmental Progress newsletter, Summer 2004.

Illinois EPA has also

acknowledged that this proposal is additionally intendedto address the permit backlog and the

burden of running a permitting program where various environmental advocacy groups

regularly object to permits and take action to delay construction of new or expanded

wastewater treatment facilities. Both of these rationales for the proposed standards are

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improper. An election year promise does not constitute scientific evidence. And the solution

to address abuse of the permitting system by advocacy groups to slow growth or obtain

concessions is not to proceed with an unwise and unjustified standard. JAWA believes that

any expected benefit to Illinois EPA from this rule is frankly illusory. Even if this proposal is

adopted, an interim rule is not likely to reduce Illinois EPA’s regulatory burdens in any case.

The purported benefit to Illinois EPA is that it would not have to look at phosphorus

discharges ofsmall dischargers, but testimony at the hearing show that this is not the case and

the environmental groups have already stated they do not concur with this position. Illinois

EPA will still have to address water quality and anti-degradation, even with an interim

standard.

The Illinois EPA has not disputed and has in fact repeatedly conceded that the

proposal to have a generally applicable interim effluent limitation for phosphorus for new or

expanding treatment facilities is not based on sound science. (Statement of Reasons at 7, 8,

12; Tr. at 108, lines 2 through 12). While acknowledging the desirability of sound science as

a basis for effluent standards, Mr. Toby Frevert nevertheless stated that “Based on the

testimony nobody has that sound science and knows exactly what to do with nutrients.” (Tr. at

p. 107, lines 22-23). This admission should preclude the Board from proceeding with this

standard. Illinois EPA has also stated very generally that phosphorus is known to be a

problem in some streams and not in others. IAWA has already made the point that for

streams where phosphorus can be shown to be impairing a recognized stream use, regulations

are in place to allow the Illinois EPA to give dischargers effluent limitations. For receiving

streams where it cannot be determined that there will be a benefit from reductions in

phosphorus levels, however, the proposed interim limit would result in the installation and

operation oftreatment technology with no known benefit and an unknown cost. Tr. 100.

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The environmental advocacy groups participating in this rulemaking have also

attempted to provide support for the rulemaking by filing general information on the standards

of other states as well as permits issued in Illinois where a phosphorus limitation was

included. This information is not science, however. None of the information submitted by

the environmental groups show that Illinois has a problem with phosphorus or that Illinois

waterways have conditions similar to those of other states. The Illinois EPA has itself

admitted that at this point in time it does not understand the role ofelevated levels ofnutrients

in the wide range of stream conditions found in Illinois. Further, the permits that contain a

phosphorus limitation reflect either dischargers, primarily downstate, where the discharge is

upstream of a lake and therefore a phosphorus limitation is required by Board regulations, or

cases where a permittee has accepted a permit limitation at the urging of these same

environmental advocacy groups in order to avoid delays in permit issuance. Tr. 35-38, Oct.

25, 2004. These permits support only the effectiveness ofthe advocacy group tactics and not

the scientific nature of their objections.

Lack of Technological and Economic Justification

With respect to the economic justification ofthe proposed rule, the absence ofa sound

scientific basis for the rule is ultimately a comment on the likely absence ofany impact at all

from installation of costly technology on nutrient levels in Illinois waterways. JAWA has

already submitted testimony that the Illinois EPA’ s expectation on the technology that will be

used, chemical phosphorus removal processes, will increase the cost ofwastewater treatment.

Tr. 100-01. IAWA believes there is a real deficiency in the information that has been

submitted on the cost of this proposed regulation to wastewater treatment agencies and,

consequently, Illinois taxpayers. Tr. 101-02. There has been no real attempt to address

operating costs. Tr. 109. IAWA has also submitted testimony that Illinois EPA has failed to

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provide a sound and accurate estimate of the cost and has omitted important components of

the cost, including handling and disposal ofadditional sludge.

Illinois Nutrient Work Group

The state is moving forward on developing nutrient standards that would be based on

sound science by forming the Illinois Nutrient Work Group, a process that has received

federal approval by U.S. EPA. IAWA supports this process and is a participant in the Illinois

Nutrient Work Group, as are the environmental advocacy groups that have commented in this

rulemaking. This process is intended to result in proposed regulations that are consistent with

Board rules and that are supported by proper science, and resulting standards will

consequently forward the interest ofpublic confidence in Illinois water quality standards and

credibility with those entities that have to spend the money to meet the standards. The

development ofthese limits is consistent with IAWA’s long standing support of science-based

water quality standards.

The Illinois EPA has testified that it expects to have standards to propose in 2007,

with adoption expected in 2008. Assuming the Board adopts this proposed interim rule,

construction permits to which this rule is intended to be applicable would be issued for plants

to come on line in late 2006, at the earliest. By the time this rule is adopted, there would be

no benefit given the short time period during which it would be in effect.

IAWA also concurs with the Metropolitan Water Reclamation District of Greater

Chicago that the Board should move toward creating an incentive to allow treatment facilities

to explore wetland trading to address nutrients and evaluate other alternatives. Given the

uncertainties concerning phosphorus, it would seem the proper response would not be to set

an unsupported interim limit during the limited time period until the prospective proposal on

nutrients is adopted, but instead to work to create a regulatory environment that allows testing

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ofinnovative solutions so that once standards are supported and adopted, Illinois’ wastewater

treatment facilities and the Illinois EPA will have enough information to be in a position to

determine whether wetlandtrading is viable and effective.

Conclusion

As agencies with the authority to regulate other entities and spend taxpayer money to

meet regulatory requirements, IAWA’s members believe it is important that they understand

and have confidence in the scientific basis for standards. IAWA strongly believes there is no

current need for the proposed interim phosphorus limitation and it would be contrary to

statutory requirements and Board regulations to proceed with standards without the proper

environmental, economic and technical justification for the standards. 415 ILCS 5/27; 35 Il.

Adm. Code 102.202. Nutrient limits are in progress in a forum that will allow them to be

based on sound science, and during the interim Illinois EPA currently has the legal means to

deal with streams that have known nutrient problems. Under the circumstances, adoption of

an interim technology-based phosphorus limit is not wisepublic policy.

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EP

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Summer 2004

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Illinois EPA Proposes Phosphorous Discharge Limits

Page lofi

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Discharge Limits

Fulfilling Governor Rod Blagojevich’s pledge to address the impact of phosphorus in sewage plant discharges, the

Illinois Environmental Protection Agency has asked the Illinois Pollution Control Board to adopt new standards for new

and expanding larger municipal and industrial wastewater/sewage treatment plants.

“We owe it to our future generations to do everything we can now to ensure that they’ll be able to enjoy Illinois’

natural habitat and wildlife for years down the road,” said Governor Blagojevich. “This proposal takes a big step

forward in protecting threatened plant and fish life around the state’s many wastewater and sewer treatment

facilities,”

“These standards are intended to address concerns that too much phosphorus results in excessive plant growth and

algae, may be detrimental to fish and aquatic life and may cause odor and taste problems in drinking water,” said

Illinois EPA Director Renee Cipriano. “The Agency has been working on the proposal at the request of Governor

Blagojevich, who pledged during his 2002 campaign to address the phosphorus concerns raised by state and local

environmental groups.”

“The Governor’s proposal will help protect drinking water and wildlife across Illinois,” said Jack Darin, Director of the

Sierra Club, Illinois Chapter. “This initiative will help growing communities ensure that local streams and rivers will

remain clean, even as population and wastewater discharges increase.”

Under the proposed standards, new or expanding domestic sewer and wastewater treatment facilities, that discharge

more than 1 million gallons a day, will be required to reduce their phosphorus content to 1 milligram per liter. Certain

industrial facilities will also have the same limit applied to them.

The facilities will be able to meet the limit by incorporating available phosphorus reduction technology. Phosphorus

removal can be achieved with either biological or chemical technologies. Phosphorus removed from treated

wastewater is contained in the sludge or bio-solids generated during the sewage treatment process and may increase

the nutrient and soil enhancement properties when it is disposed of through land application.

Phosphorus is a naturaly occuring nutrient and a basic building block necessary to support life, but too much

phosphorus from organic materials in wastewater discharged into a stream or lake may upset the balance in a body

of water.

However, because there is still scientific debate over how much phosphorus is too much, Illinois EPA has proposed an

“interim” standard that would be in effect for the next several years to allow the science to further evolve.

The Pollution Control Board will hold hearings to obtain testimony from interested constituencies on the proposed

standards and then will issue a decision.

Copyright © 2004 Illinois EPA

Agency Site Map I Privacy

Information

I Kids Privacy I Web Accessibility I Agency Webmaster

I

Environmental Progress

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Summer 2004

http://www.epa.state.il.us/environmental-progress/v30/n2/phosphorous-limits.html

12/6/2004

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CERTIFICATE OF SERVICE

The undersigned certifies that a copy ofthe foregoing

Comments of the Illinois

Association of Wastewater Agencies

were filed by hand delivery with the Clerk ofthe illinois

Pollution ControlBoard and served upon the parties to whom said Notice is directed by first class mail,

postage prepaid, by depositing in the U.S. Mail at 191 NorthWacker Drive, Chicago, illinois on

Tuesday, December 21, 2004.

SanjayK. Sofat

Assistant Counsel

1021 North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

Matthew

J.

Dunn, Chief

Office ofthe Attorney General

Environmental Bureau

100 West Randolph Street

11th Floor

Chicago, IL 60601

Robert A. Messina

General Counsel

Environmental Law &

Policy Center

3150 RolandAvenue

Springfield, IL 62703

Albert F. Ettinger

Environmental Law &

Policy Center

35 East Wacker Drive

Suite 1330

Chicago, IL 60601

John McMahon

Wilkie & McMahon

8 East Main Street

Champaign, IL 61820

Jonathan Fun

Department of Natural

Resources

One Natural Resources Way

Springfield, IL 62702-1271

Richard Lanyon

Director ofResearch

& Development

Michael G. Rosenberg

Metropolitan Water Reclamation

ofGreater Chicago

100 E. Erie

Chicago, IL 60611

David Horn

Asst. Prof., Biology

Aurora University

347 Gladstone Avenue

Aurora, IL 60506

Darin Boyer

CityofPlano

17 B. Main Street

Plano, IL 60545-1521

CHOI/ 12401660.1

THIS FILING IS SUBMITTED ON RECYCLED PAPER