BEFORE THE
IN THE MATTER OF:
REVISIONS TO ANTIDEGRADATION
RULES
35
ILL. ADM. CODE 302.105, 303.206
AIND
106.990-106.995.
RECEIVED
CLERK’S
OFFICE
MAR
2
0
2001
STATE OP ILLINOIS
Pollution
Control Board
)d9/e/4
NOTICE OF FILING
TO:
Ms. Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL
60601
Marie Tipsord, Esq.
Attorney
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL
60601
(PERSONS ON ATTACHED SERVICE LIST)
PLEASE TAKE NOTICE that I will file on March 20, 2001
with the Clerk ofthe Illinois
Pollution Control Board an original and nine copies ofthe COMMENTS OF THE AMERICAN
BOTTOMS REGIONAL WASTEWATER TREATMENT FACILITY, copies ofwhich are
herewith served upon you.
Respectfully submitted,
AMERICAN BOTTOMS REGIONAL
WASTEWATER TREATMENT FACILITY,
VILLAGE OF SAUGET, ILLiNOIS
By:
4~Z(
One of Its Attorneys
Dated March 19, 2000
Susan M. Franzetti
SONNENSCHEIN NATH & ROSENTHAL
8000 Sears Tower
Chicago, IL
60606
(312) 876-8000
)
)
RO1-13
)
14149406
RECEIVED
CLERK’S OFF?’~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
MAR20
2001
REVISIONS TO ANTIDEGRADATION
)
STATE OF IWNOIS
RULES 35 ILL. ADM. CODE 302.105,
303.206
RO1-13
Pollution Control Board
AND 106.990-106.995.
)
)
COMMENTS OF THE AMERICAN BOTTOMS REGIONAL
WASTEWATER TREATMENT FACILITY
I.
INTRODUCTION
The American Bottoms Regional Wastewater Treatment Facility (“ABRTF”), located in
Sauget,Illinois, has actively participated in this rule-making proceeding and in the prior
activities ofthe Antidegradation Task Force organized by the Illinois Environmental Protection
Agency (“Agency”). Our active participation stems from our beliefthat the proposed
antidegradation regulations have thepotential to affect in significant ways the future operations
ofPOTWs, like the ABRTF. Without further improvements to theproposed provisions ofthe
regulations, we are concerned that the revised Illinois antidegradation policy threatens to create
unpredictabilityand to impose unnecessary obstacles and burdens to our POTW’sefforts to
accept and treat increased wastewater discharges from current and futureusers.
As proposed, the language ofthe regulations could subject every increase in loading to a
high quality water by a POTW, no matter how innocuous and necessary, to the burden ofmaking
an antidegradation demonstration.
We submit that such an extensive regulatory reach was never
the intended scope ofthe antidegradation policy. To prevent such an unintended regulatory
impact, we are submitting these comments to urge the Illinois Pollution Control Board (the
“Board”) to revise the languageofthe Agency’sproposed rules to incorporate the following
concepts and principles:
I. The antidegradation rules apply to an
increase in loading that has not been
previously authorized by an existing NPDES permit;
2.
The antidegradation rules apply to increases in loading that will significantly
lower water quality.
An NPDES
permittee may seek an initial determination by the Agency that
its proposed loading increase does not significantly lower water quality; and
3.
A de miimis
loading increase, as defined in the rules, does not significantly
lower waterquality and is not subject to the requirement to submit an antidegradation showing.
Webelieve the incorporation ofthe above threeprinciples into the antidegradation rules
will provide the proper scope and application forthe State’santidegradation policy while also
lending needed flexibility to the implementation ofthat policy.
Alternatively, the ABRTF is not
opposed to what the Agency has described and coined the “sliding scale approach” to the
implementation ofthe antidegradation requirements.
However, that approach is not incorporated
into the language of either the proposed rules or the proposed Agency implementation
procedures.
Unless it is, there is no certainty for a POTW like ours that future legal
interpretations and rulings will uphold the Agency’sview that this uncodified approach to
antidegradation demonstrations and reviews is what is intended by the proposed regulatory
language.
II.
BACKGROUND
The ABRTF is designed for an average daily flow of 16.1
MGD in thepreliminary and
primary treatment units and 27 MGD in the secondary treatment units.
Secondary treatment
facilities are designed for a peak flow of52 MGD. The original design of the ABRTF was
reviewed and accepted by both the Agency and the U.S.
EPA as part of an extensive review
process that led to the approval ofthe ABRTF service area and subsequently the construction
grant funding to finance seventy-five percent of the construction costs ofthe-ABRTF in the
14149406
2
1980’s. The NPDES permit for the ABRTF was originally issued in
1.986, after close review of
the ABRTF proposed loadings to the Mississippi River by the Agency and the U.S. EPA.
The
ABRTF NPDES permit has been renewed since its original issuance, most recently in
1997.
The ABRTF is concerned that any revised antidegradation policy adopted by the Board
should not discourage planned improvements ofexisting facility or unnecessarily thwart the
location ofnew facilities from locating in the ABRTF service area.
The ABRTF’s current
annual average flow of 14 MGD is well below its design levels.
The ABRTF discharge has
remained below its permitted loading limits.
Thus, there is previously approved and permitted
capacity for the ABRTF to accept additional wastewaterflows for treatment and discharge to the
Mississippi River.
The ABRTF operates under a pretreatment program approvedby the United States
Environmental Protection Agency (“U.S. EPA”). It services seventeen significant industrial
users, 148 industrial users and 18,000 residential customers.
Since itbegan operations in
1986,
the ABRTF has brought improved wastewater treatment to its service area, including replacing
the operations of two former POTWs in the region that couldnot provide a comparable quality of
wastewatertreatment.
None ofthese developments were hampered or burdened by unnecessary
delays or costs created by the application ofthe Illinois antidegradationpolicy.
The ABRTF
hopes through its participation here to ensure that undera revised Illinois antidegradation policy,
it can continue to make this statement in the future as and when there may be loading increases
from its facility.
III.
SECTION 302.105:
THE APPLICABILITY OFTHE ANTIDEGRADATION
RULE MUST BE CLEARLY AND EASILY UNDERSTOOD
It is critical that the antidegradation rules establish clear criteria for a discharger to apply
in determining whether a change in its
discharge constitutes an “increased loading”sufficient to
require an antidegradation demonstration.
While the Agency will presumably review
14149406
3
antidegradation applicability issues at the time ofpermit renewals, in the intervening five years,
the discharger is the entity who must make this “applicability”determination in the first instance.
Unless therules are easily understood, particularly as to theirscope ofapplicability,
there is an
increased risk that a discharger will unknowingly fail to seek a required antidegradation review
by the~gency.
Further, lackofclarity maylead to unreasonable delays in determinations of the
applicability ofthe antidegradation rules.
For this reason, it is important to clarify the applicability language in proposed Section
302.105(c)(2).
As proposed, the language provides that the antidegradation rules applyto “any
increase in pollutant loading subject to an NPDES permit or CWA Section 401
certification.”
Throughoutthe hearings, there has been repeated testimony concerning the lack ofclarity in this
language.
As written, it is unnecessarily and overly broad in scope.
It creates an unmanageable
requirement forPOTWs as they work to assurepermit compliance because it lacks any clear
threshold for telling them when the antidegradation requirements apply.
As Ms. Robin Garibay,
Principal ofThe ADVENT Group, testified on behalfofthe ABRTF, the standard that “any”
increase in pollutant loading triggers antidegradation requirements could be a moving target for
POTWs.
(Hearing Testimony ofRobin Garibay, December 6,2000, Tr. 99). Ms. Garibay also
provided testimony from her personal experience about the problems caused by the lack ofclear
standards for applying the antidegradation rules, including an unjustified year-long delay in the
completion ofa beneficial improvement to a power and steam generating plant due to
antidegradation language covering “anyincrease”in loading. (Exhibit
18
-
Pre-Filed Testimony
of Robin Garibay at p. 3).
It is not “anyproposed increase in pollutant loading” that will triggerantidegradation
review.
The Agency’s testimonyand proposed implementation procedures clarify that
antidegradation review is required only when the increased loadingis “overand above those
14149406
4
levels that are already authorized in [a] permit.” (Testimony ofToby Frevert, November
17,
2000,
Tr. 46
and 138).
This standard properly acknowledges that changes to facilities and
treatment plant capacity that were previously considered by the Agency to establish NPDES
permit terms should not be required to be reviewed again when these actual loading increases
occur at some point in the future.
These loading increases already have been determined to be
consistent with waterquality standards.
(See Testimony ofToby Frevert, November 17,2000,
Tr.
56).
They are allowed fluctuations ofeffluent mass within permitted discharge limits.
We submit that only an increase not already authorized by an NPDES permit should be a
trigger forpotential
antidegradation review.
The prior permit is protective ofthe receiving
water for antidegradation purposes. Especially in the case ofa POTW, its proposed discharge
has gone through several water quality standards reviews by the time it is issued an NPDES
permit. Thesereviews may include the approval ofthe POTW’s design plans, anadditional
review as part ofthe construction grants program and the construction permitting program, and
finally anotherround ofwater quality standards review at the time ofNPDES permit issuance.
(See Testimony ofRobin Garibay, December 6,2000,
Tr. 97-98; Testimony ofToby Frevert,
November 17, 2000, Tr. 69).
Otherwise, a POTWpotentially could be exposed to a claim that
any new discharge to the POTWconstitutes an “increased loading” to the receiving water,such
as increased loadings due to batch or campaign operations by industrial users, weather-related
events, or demands on commercial facilities services.
(See Exhibit 18
-
Pre-Filed Testimony of
Robin Garibay at p. 2, November 28,2000, and December 6,2000 Hearing Testimony, Tr. 99).
If so, one or a series ofantidegradation reviews could be required even though the POTW’s
existing NPDES permit already contemplated and allowed the presence ofthese discharges when
the existing permit limitations were established.
14149406
5
I.
This threshold for applicability needs to be clearly and expressly stated in the
antidegradation rule itself.
We support the revision ofproposed Section 302.
105(c)(2),
in
relevant part, to read:
“Anyproposed increase in pollutant loading not authorized by an existing
NPDES permit or CWA Section 401
certification must be assessed
....“
IV.
DE MINIMIS
The antidegradation rule should not be applicable to minimally increased loadings. The
Agency should incorporate into the rules an applicability “trigger” thatis measured by a
percentage increase over the remaining assimilative capacity ofthe receiving water.
Such an
approachprovides ease ofapplication and is
appropriate to defining loadings that clearly will not
result in a lowering ofwater quality.
For that reason, we support the exclusion ofde miimis
loadings from the applicability ofthe antidegradation rules.
This approach will greatly increase
thechances that the proposed antidegradation rules are workable, do not threaten planned
improvements of existing facilities, and are not unreasonably burdensome either to the Agency
or to the public.
It will help conserve the Agency’slimited resources for those permit
applications which truly do raise antidegradation concerns.
TheAgencyhas stated that it supports theconcept ofa de miimis
exception but not a
burdensome approach to
implementing that concept.
The ABRTF, through the testimony ofMs.
Ganbay, showed that the de minimis exclusion need not be burdensome ornovel for the Agency
to employ.
(Exhibit
18
-
Pre-filed Testimony ofRobin Garibay at p.4, November 28,2000).
Instead, the implementation of a de minimis approach can closelymirror the evaluation the
Agency already performs as part ofeachNPDES permit issuance process to determine whether a
discharge has the “reasonablepotential to exceed” (“RPE”)a waterquality standard.
Ms.
Garibay explained how the data and information needed to make these RPE assessments are
similar to what is needed to determine whethera proposed increase in loading will impact water
14149406
6
quality for purposes ofthe antidegradation requirements.
(Id. ~atp. 4)
The Agencyrecently
confirmed that it utilizes the RPE approach described by Ms. Garibay, which is set forth in the
Technical Support Document for Water Oualitv-based Toxics Control, EPA/505/2-90-00l,
March
19991.
(See Answers ofIEPA to Pre-filed Questions, dated March 9, 2001, at
¶
13.)
It
would not add a separate or unique datareview to the Agency’s permit issuanceprocess.
Moreover, using the de minimis approach incorporated into the
State ofIndiana’s
antidegradationrules,
Ms. Garibay showed how a straightforward set ofvalues can be used to
calculate and identify a de minimis increase.
(Id. at p.
5-6).
The use ofa de minimis concept in
the antidegradation program does not require the Agency to undertake significant, additional
demands on its permit review resources.
Ifit did, it is unlikely that other RegionV states, such
as Indiana and Wisconsin, would continue to employ this concept in their respective
antidegradation rules.
In addition to the added ability to conserve scarce resources and minimize permitting
delays, the inclusion of a “brightline” deminimis exception can also serve as an incentive to
dischargers to achieve levels ofwastewater treatment orpollution prevention measures that
exceed those realized by the application ofBest Available Technology and water quality-based
effluent limitations (“WQBELs”). Ms.Garibay provided an
exampleofhow the desire to avoid
the uncertainties and resource demands ofan antidegradation review motivated a discharger
seeking to expand its existing production to reduce its lead discharge level to halfofthe WQBEL
required discharge level in order to qualify forthe de miimis exemption. By staying below the
de minimis threshold of 10% ofthe unused loading capacity ofthe receiving stream, the
discharger knew that it would be allowed to pursue its planned facility expansion.
(See Exhibit
18- Pre-filed Testimony ofRobin Garibay at p.
6 and December 6,2000 Hearing Testimony, Tr.
100-102).
Hence, not only can a de minimis exception provide an appropriate means to
14149406
7
efficiently and effectively implement the antidegradation program, it can also promote pollution
prevention and minimization in return for greater certainty on the regulatory front.
The ABRTF appreciates the concerns voiced by othercommenters that adopting a de
miimis exception threatens to exhaust the available assimilative capacity ofthe receiving
stream.
Theoretically, this is possible over time assuming there are multiple uses ofthe de
minimis exception in the same receiving water segment.
To that end, the ABRTF is not opposed
to the inclusion ofa “cap” onthe availability ofthe de miimis
exception that reserves a portion
ofthe unused assimilative capacityin the receiving water.
V.
THE ANTIDEGRADATION RULES SHOULD ALLOW FOR A SEPARATE AND
EARLY DETERMINATION OF
WHETHER A PROPOSED LOADING
INCREASE MAY LOWER WATER OUALITY.
Antidegradation review should focus on addressing true impacts to water quality,
recognizing that certain projects, including those with limited impacts or great environmental
import, do not warrant extensive review. The burden and expense ofevaluating economic and
social impacts, conducting comparative technology reviews and other efforts necessitated by an
antidegradation review should be limited to those increases in loading that have a significant
effect on water quality in the receiving stream. POTWs, like the ABRTF, should be able to
reduce the drain on their limited resources caused by conducting all aspects ofan antidegradation
review where the proposed increase in loading will have an insignificant impact on the receiving
water’s quality. A de minimis exception is one means ofachieving a workable and protective
program.
However, there willbe proposedincreases that do not fit the specific terms of a de
minimis exception but nevertheless do not have any significant impact on water quality.
These
instances are another facet ofthe “sliding scale” approach described by the Agency that needs to
be incorporated into the language ofthe antidegradation rules.
As Mr. Frevert testified, the level
ofsignificance will determine the extent ofreview. (Testimony ofToby Frevert, November
17,
14149406
8
.2000,. Tr. 73-74). We agree with that approach, but it is not expressed in the proposed language
of the antidegradation rules.
American Bottoms submits that it is important to separate the two concepts of “loading
increase”and “lowerwater quality” as used in theproposed antidegradation rules.
A loading
increase above authorizedpermit levels should be the “triggering” event fordetermining whether
and to what extent an antidegradation review is required.
However, for high quality waters,
unless there will be a lowering ofwaterquality from the loading increase, the federal
antidegradation policy does not require any showing concerning social and economic factors or
comparable alternatives.
Section 131.1 2(a)(2) of the federal
antidegradation policy requires
consideration ofthese additional factors only where the State decides it will be “allowinglower
water quality.”
During the hearing testimony, at least one example of an increase in loading that could be
above permit limits but would be beneficial to the water quality ofthe stream was presented.
The example involved a dischargerwho was increasing its
loading ofammonia nitrogen but the
increased concentration of ammonia was still below the ambient ammonia concentration ofthe
receiving stream.
As Mr. Frevert testified, in such a situation, the increased loading is a
beneficial thing” because itwill actually lower in the in-stream concentration.
(Testimony of
Toby Frevert, November 17,2000, Tr.
127-128). However, under the language of the proposed
regulations, an antidegradation review is still required because the sole determining factor is
whetherthere is an increased loading, including those above permitted levels, and not the
additional step ofwhether the increased loading results in any lowering ofwater quality.
Instead, the discharger should be able to present solely the information showing that while an
increase loading may be above permitted levels, it results in improved waterquality. None ofthe
remaining antidegradation demonstration requirements should apply.
Mr. Frevert agreed with
14149406
9
this approach in his testimony (See Hearing Testimony, November 17, 2000,
Tr.
132-133),
however, this process is not provided for in the language ofthe regulations proposed by the
Agency.
Under the proposed language, once a loading increase to a high quality water triggers
antidegradation review, the remainingrequirements concerning reasonable alternatives analysis
and social and economic factors must be demonstrated.
The determination ofthe applicability ofthe antidegradation requirements for discharges
to high quality waters should be a two-step process. The first step is whether there is a proposed
new or increased loading above levels authorized by any existing NPDES permit.
The second
step should be for the Agency to determine whetherthe proposed loading increase is reasonably
likely to cause any significant lowering ofwater quality.
To automatically equate every
proposed increased loading with a lowering ofwater quality unreasonably overstates the
intended scope and purpose ofthe antidegradationpolicy.
To require an antidegradation
demonstration ofeveryPOTW who proposes an increase in loading due to the addition of
residential wastewater sources in its service area, no matter how innocuous the impact ofthe
loading increase is on water quality, is an unreasonable and unnecessaryregulatory approach.
Theantidegradation rules should provide a POTW the right to seek
an early and final
determination by the Agency that its proposed loading increase will not lower water quality such
that a showing on comparable alternatives and economic and social factors is required.
By seeking to include the right to a water quality impacts review early on in the
antidegradation review process, there is no
intent to “hide” the potential impactsofa proposed
loading as has been implied by one commenter. The ABRTF supports an approach that makes
the Agency’sreview and finding that there is no significant lowering ofwater quality that
warrants a further antidegradation showing a part ofthe public record.
There is no intent to
“hide”the evaluation ofwater quality impacts.
There is, however, an intent to avoid the
10
14149406
unnecessary expenditure ofPOTW funds.
Fora POTW, a reasonable alternatives
analysiscould
include looking at a broad range ofoptions, from various pretreatment options at industrial user
facilities and end-of-pipe control measures for the POTW. This analysis would consume an
extensive number ofhours and significant cost. (See Hearing Testimony ofRobin Garibay,
December 6, 2000, Tr.
104-105). As Ms. Garibay’s testimonymade clear, the work involved to
demonstrate that all technically and economically reasonable measures to control the increase
have been taken (i.e. the “reasonable alternatives analysis”) can and has cost in excess ofover
$100,000 in engineering fees and extended over a two year period injust one ofthe examples she
gave from her real-life experiences with antidegradation demonstrations.
(Exhibit
18
-
Pre-filed
Testimony ofRobin Garibay at p. 7, November 28, 2000 and December 6, 2000 Hearing
Testimony, Tr.
105-07).
This is compelling and concrete evidence concerning theactual burdens
and costs ofmaking the reasonable alternatives demonstration.
It stands unrebutted and in stark
contrast to the general testimony presented to the Board questioning the appropriateness of
including this earlywater quality impacts review in the antidegradation process on the
speculative grounds that it could be more burdensome.
The Agency’sand other interestedparties’support for a “sliding scale”approach to
antidegradation reviews can be incorporated into the language ofthe antidegradation rules by
codifying this two-step process for determining the applicability ofthe requirements ofthe
antidegradationrules. We support the efforts ofthe Illinois Environmental Regulatory Group
(IERG) to incorporate this concept into the antidegradationrules through its proposed Section
302.105(c)(2)
revisions submitted to the Board.
The regulations should allow a determination of
whether the lowering ofwater quality is significant before a discharger to
high quality waters is
required to submit a demonstration ofthe reasonable alternatives analysis and social and
economic factors.
14149406
11
VI.
CONCLUSION
We commend the Agency and the other participants in this rule-making who have
provided valuable comment and testimony towards making the proposed antidegradation rules
protective ofour State’swaters while retaining a workable and efficient program for both the
Agency and the public. As shown by the limited issues we have addressed, wesupport most of
the proposed rule-making submitted by the Agency.
By these comments, we seek to improve on
the substantial foundationpresented by the Agency so that it is not subsumed by unpredictability
and unnecessary delay and costs that could adversely impact the future needs and finances of the
ABRTF and its users.
Respectfully submitted,
AMERICAN BOTTOMS REGIONAL
WASTEWATER TREATMENT FACILITY,
VILLAGEOF SAUGET, ILLINOIS
By:___________
One ofIts Attorney~/
Dated March 19,2001
Susan M. Franzetti
SONNENSCHE1N NATH & ROSENTHAL
8000 Sears Tower
Chicago, IL
60606
(312) 876-8000
14149406
12
CERTIFICATE OF SERVICE
I Susan M. Franzetti, the undersigned, certify that I will serve a copy ofthe attached
COMMENTS OF THE AMERICANBOTTOMS REGIONAL WASTEWATER TREATMENT
FACILITY,
filed In The Matter Of Revisions To AntidegradationRules, upon:
Ms. Dorothy M. Gunn
Clerk ofthe Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL
60601
By sending said documents by messenger delivery on March
20, 2001; and upon
(SEE ATTACHED SERVICE LIST)
by depositing copies ofsaid documents in theUnited States Mail on March 19,2001.
S san M. Franzetti
14149406
13
ROl-13
SERVICE LIST
KayAnderson
American Bottoms RWTF
OneAmerican Bottoms Road
Sauget,IL
62201
Karen L. Bernotelt
IL Environmental Regulatory Group
215 East Adams Street
Springfield, IL
62701-1199
Chris Bianco
Chemical Industry Council
9801
WestHiggins
Road, Suite
515
Rosemont, IL
60018
Jack Dam
Sierra Club, Illinois
Chapter
200 North Michigan Avenue
Suite 505
Chicago, IL
60601
Albert Ettinger
Environmental Law & Policy Center
35 East Wacker Drive
Suite 1300
Chicago, IL
60601-2110
Irwin Polls
Metropolitan Water Reclamation
Environmental Monitoring
6001 WestPershing Road
Cicero, IL
60804-4112
Marie Tipsord
Attorney, Pollution Control Board
100 West Randolph, Suite 11-500
Chicago, IL
60601
Georgia Valhos
Department ofthe Navy
Naval Training Center
2601
A Paul Jones Street
Great Lakes, IL
60088-2845
James T. Harrington
Ross & Hardies
150 North Michigan
Suite 2500
Chicago, IL
60601
John M. Heyde
Sidley & Austin
Bank One Plaza
10 South Dearborn Street
Chicago, IL
60603
Katherine Hodge
Hodge & Dwyer
808 South Second Street
Springfield, IL 62704
Richard J. Kissel
Gardner, Carton & Douglas
321 North Clark Street
Suite 3400
Chicago, IL
60610
Sharon Neal
CoinEd
-
Unicom
Law Department
125 South Clark Street
Chicago, IL
60603
Cindy Skrudkrud
4209 West Solon Road
Richmond, IL
60071
Connie Tonsor
Assistant Counsel
IEPA
-
Division ofLegal Counsel
P.O. Box 19296
Springfield, IL
62702
Charles Wesslehoft
Ross & Hardies
150 North Michigan Avenue
Suite 2500
Chicago, IL
60601
Frederic P. Andes, Esq.
Barnes
&
Thornburg
2600 Chase Plaza
10 South LaSalle Street
Chicago, IL
60603
Mr. Stanley Yonkauski
Illinois Department ofNatural Resources
524
South Second Street
Springfield, IL
62701
Christine
S. Bucko, Esq.
Assistant Attorney General
Illinois Attorney General’sOffice
Environmental Bureau
188 West Randolph Street
20th Floor
Chicago, IL
60601
Mr. Jerry Paulson
Moflenry County Defenders
804 Reginact
Woodstock, IL
60098
