NOTICE OF FILING
THE ILLINOIS ASSOCIATION OF WASTEWATER AGENCIES
II. If the proposal costs dischargers anything, the costs will be very modest.
IlL Adoption of the proposal will save money for the State of Illinois.
CONCLUSION
CERTIFICATE OF SERVICE
SERVICE LIST

RE CE

\~ED

CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL

BOARDJUL

012005

STATE OF ILLINOIS

Pollution Control Board

INTERIM PHOSPHORUS EFFLUENT

)

STANDARD, PROPOSED

ILL. ADM.

)

R2004-026

CODE 304.123(G-K)

)

Rulemaking

—

Water

)

NOTICE OF FILING

PLEASE TAKE NOTICE that the Environmental Law & Policy Center, Prairie Rivers

Network and

Sierra Club have filed the attached RESPONSE

OF THE ENVIRONMENTAL

LAW & POLICY

CENTER, PRAIRIE RIVERS NETWORKAND SIERRA CLUB TO THE

FIRST NOTICE COMMENTS OF THE ILLINOIS ASSOCIATION OF WASTEWATER

AGENCIES.

Albert F. Ettinger (Reg. No.

3125045)

Counsel for Environmental Law & Policy

Center, Prairie Rivers Network, and

Sierra

Club

DATED:

July

1, 2005

Environmental Law & Policy Center

East Wacker Drive, Suite 1300

Chicago, IL

60601

312-795-3707

BEFORE THE ILLINOIS POLLUTION CONTROL BOARDCLERKS

OFFICE

JUL

e12005

IN THE MATTER

OF:

)

STATE OF ILLINOIS

Pollution Control Board

INTERIM PHOSPHORUS EFFLUENT

)

R2004-026

STANDARD, PROPOSED

Iii. Adm.

)

Rulemaking

—

Water

Code 304.123(g-k)

)

RESPONSE OF THE ENVIRONMENTAL

LAW & POLICY CENTER, PRAIRIE

RIVERS NETWORK AND SIERRA CLUB TO THE FIRST NOTICE COMMENTS OF

THE ILLINOIS ASSOCIATION OF WASTEWATER AGENCIES

ELPC, Prairie Rivers Network and Sierra Club

(“ELPC/PRN/Sierra”) did not have any

criticisms to

make ofthe Board’s proposed First Notice Rule in this matter and,

accordingly, did

not file comments.

However, the Illinois Association of Wastewater Agencies (“IAWA”) does

have criticisms ofthe proposed First Notice rule and the April

7, 2005 Opinion and Order issued

by the Board. These criticisms were stated in

comments filed June 20,

2005.

Response is made

here to those IAWA comments and

to questions posed by the Joint Committee on Administrative

Rules regarding the economic and budgetary effects ofthe proposal.

IAWA’s first three criticisms are that there is “insufficient justification” for the rule, that

there is no need to “shortcut” what IAWA labels

a “science-based approach” and that the

proposed reduction in the increases ofphosphorus to be allowed is insignificant. These meritless

criticisms have

all been answered by the Board’s opinion and in prior comments filed by

ELPC/PRN/Sierra Club. With regard to

IAWA’s true but irrelevant refrain that agriculture is a

major source ofphosphorus, it may be further mentioned that the Board itself has found that

phosphorus from point sources is probably more damaging to the environment because it is more

biologically available to algae.

See, In the Matter of:

Site-Specific Phosphorus Limitation for the

CityofShelbyville,

1983-12 R

1983-12, 1984 Ill. ENV LEXIS

129,

*9 (December 20, 1984).

IAWA did raise

two new matters in its June 20 comments: a concern regarding daily

maximum limits that it claims would be created by the rule

as drafted and a claim that the costs

ofthe proposal have been seriously underestimated.

ELPC/PRN/Sierra do not object to amending the rules to make more clear

that daily maximum limits are not intended.

ELPC/PRN/Sierra do

not

object to placing language in the rule that clarifies that no daily

maximum limit is intended to be created by the new rule. The language we would propose would

state:

The averaging rules under subsections (a)(2) and (a)(3) ofSection 304.104 do not

apply to

permit limits established pursuant to

Section 304.123(g) or (h).

As IAWA states, the Wisconsin phosphorus

effluent rules, which establish

1 mg/L

limits

for a broader range ofdischargers than the proposed Board rule,

do not have a daily maximum.

Also, without a daily maximum, it should be possible for most Illinois dischargers

to use

biological phosphorus removal methods which generate less sludge than chemical phosphorus

removal methods.

II.

If the proposal

costs dischargers anything, the costs will be very modest.

IAWA’s comments regarding the potential economic

costs to Illinois dischargers ofthe

proposed rules basically confirm that costs are modest. At the hearing, Ms. Beth Wentzel

presented, among other information, a document prepared by engineers hired by the City of

Elgin

stating that capital costs ofproviding phosphorus removal for a 4.3 million gallon per day

(MGD) treatment plant would be $150,000. This information was cited by the Board as one of

the facts supporting its decision. (Opinion and Order p.

18). Based on a study of certain

Wisconsin plants and unsubstantiated statements made about costs at a Kentucky plant and

several Illinois plants1, IAWA claims that this figure seriously underestimates the economic

impact of the proposed rule. (Comment ofIAWA p.

3). In fact, the economic costs ofthe

proposal were probably overstated and certainly were not significantly understated.

First, as explained in the Pre-filed testimony ofAlbert Ettinger (pp. 11-12), a limit of 1

mg/L is

already required fornew or increased discharges by a provision of Illinois’

antidegradation regulations,

35 Ill.

Adm. Code 302.105(c). Under this provision, new or

increased pollution may only be allowed to the extent it is “necessary” and

it certainly is not

necessary to

allow more than I mg/L phosphorus to be discharged given that

mg/L

phosphorus limit was found economically reasonable by the Board even given the technology in

existence two decades ago.

See Village ofWauconda v.

Illinois EPA, PCB 1981-017,

1981

Ill.

ENV LEXIS 266, at *4 (May

1981); In the Matter of: Amendments to the Water PollutiOn

Regulations, R1976-00l,

p. 4,

1979 Ill. ENV LEXIS 312

(Feb.

15,

1979);

In the Matter of: Site-

Specific Phosphorus Limitation for the City ofShelbyville, R

1983-12, 1984 Ill. ENV LEXIS

129,

*13

(December20,

1984).

Further, it must be kept in mind that the figures given by IAWA are for the present value

ofthe total costs of 20 years ofconstruction and operation of the phosphorus removal equipment.

No partyto this proceeding has denied that phosphorus removal is likely to be required well

within the 20 year period. Thus,

even if phosphorus removal

was not already, required by the

antidegradation rules,

the effect ofthe proposal at issue here would be to advance the installation

While the Board evidentiary rules are

flexible, there really does not seem tobe much excuse for relying on cost

figures stated by

counsel without any exhibit to support the estimate or witness willing to explain how these

numbers were found.

ofphosphorus removal equipment at a few plants by a few years and to encourage some

municipalities

to explore land treatment or othernon-discharge treatment.

Finally, even looking at IAWA’s worst case scenario, the cost is modest when viewed

properly. IAWA states that “for plants with a capacity of one or two MGD using chemical

phosphorus removal,

it appears the 20 year present worth including sludge processing and

disposal

will be $600,000

to $1,000,000” (Comment ofIAWA p.4). Ignoring antidegradation,

the virtual certainty that phosphorus treatment will be required in much less than 20 years and

assuming $1,000,000 for a

MGD, that amounts to

$5.00

per person a year.2 Moreover,

it is

clear from the Wisconsin study cited by IAWA that costs per person vary greatly and fall rapidly

with increased scale.

The total economic cost to the state of enacting the Board’s proposal is actually less than

zero because it provides

a rule of thumb that will be convenient to

the Agency and give notice to

planners while not requiring wastewater treatment that is not already required by the

antidegradation rules.

Even, howeyer, ignoring the antidegradation requirements, total

costs

would not be large. It is

unclear how many new or increased discharges .there will be before

numeric phosphorus standards are adopted and what, if any, increased costs will be incurred by

new or expanding dischargers as a result of having a

mg/L phosphorus limit. Further,

against

any such increased costs must be set savings from not having to retrofit plants after numeric

standards are adopted and the savings for drinking water plants and other waterusers from

reduced phosphorus pollution. The evidence provided by Professor Lemke and others regarding

$1,000,000I2Oyears

$50,000/year;

MGD

10,000 persons (see

Ill. Adm. Code

301.345); $50,000yrIlO,000

persons

$Syr/person

the effects on Illinois’ rivers, lakes and streams from phosphorus pollution shows that the net

economic effects ofreducingphosphorus loadings are strongly positive.

IlL

Adoption of the proposal will save money for the State of Illinois.

The budget implications of adoption ofthe proposal’ are not huge but are clearly positive.

The principle effect ofthe rule will be to establish a bright line rule for new or increased

discharges during the period during which phosphorus standards are developed. The net effect of

the adoption of the rule then will be to

reduce the number ofpermit disputes and potential

hearings and appeals resulting from such disputes.

CONCLUSION

The Board should send to Second Notice an interim phosphorus effluent rule generally

requiring a limit of 1

mg/L total phosphorus for all new or increased discharges for dischargers

greater than

MGD. The proposed First Notice rule may be

amended to make more clear that

daily maximum limit is not required to be set under the rule.

Albert F. Ettinger (Reg. No. 3125045)

Counsel for Environmental Law & Policy

Center, Prairie Rivers Network, and Sierra

Club

DATED:

July

1, 2005

Environmental Law & Policy Center

35 East Wacker Drive, Suite

1300

Chicago, IL

60601

312-795-3707

CERTIFICATE OF SERVICE

I, Albert F. Ettinger, certify that on July

1, 2005, I filed the attached RESPONSE

OF THE

ENVIRONMENTAL LAW

& POLICY CENTER, PRAIRIE RIVERS NETWORK AND

SIERRA CLUB TO THE FIRST NOTICE COMMENTS OF THE ILLINOIS ASSOCIATION

OF WASTEWATER AGENCIES.

An original and 9 copies was filed, on recycled paper, with

the Illinois Pollution Control Board,

James R.

Thompson Center,

100

West Randolph, Suite 11-

500,

Chicago, IL

60601, and copies were

served via United States Mail to those individuals

the included service list.

Albert F. Ettinger (Reg. No. 3125045)

Counsel for Environmental Law & Policy

Center, Prairie Rivers Network, andSierra

Club

DATED:

July 1,

2005

Environmental Law & Policy Center

35 East Wacker Drive,

Suite

1300

Chicago, IL

60601

312-795-3707

SERVICE LIST

Sanjay K. Sofat, Assistant Counsel

Darin Boyer

Illinois Environmental Protection Agency

City ofPiano

1021

N. Grand Avenue East

17 E. Main

Street

P0 Box

19276

Piano,

IL 60545

Springfield, IL 62794

Roy M. Harsch

Gardner Carton & Douglas

191

N. Wacker Drive,

Suite 3700

Chicago, IL 60606

Matthew J. Dunn, Chief

Office ofthe Attorney General

100 W.

Randolph,

11th

Floor

Chicago, IL 60601

‘Robert A. Messina, General Counsel

Illinois Environmental Regulatory Group

3150 Roland Avenue’

Springfield,

62703’

John McMahon

Wilkie & McMahon

East Main

Street

Champaign, IL 61820

Jonathan Fun

Department ofNatural Resources

One Natural Resources Way

Springfield,

IL 62702

Richard Lanyon

MWRDGC

100

E. Erie

Chicago, IL 60611

David Horn, Asst. Prof., Biology

Aurora University

347 Gladstone Avenue

Aurora, IL 60506