RECEIVED
Section 309.107
Section 309.108(e)
Section 309.110(1)
Section 309.113
Section 309.120
Sections 309.121 and 309.122
Section 309.143
Section 309.146
CERTIFICATE OF SERVICE
Comments Of The Attainable Housing Alliance and The Home Builders Association of
ServiceList

BEFORE

THE ILLINOIS POLLUTION CONTROL BOARDRECE~VEE~

CLERK’S

OFFICE

JUN

1620

IN THE MATTER OF:

)

,.~

STATE OF ILLINOIS

PROPOSED AMENDMENTS

)

PollutiOfl

Con tro! Board

PART 309

SUBPART

A-

)

Iii. Adm. Code 309.105, 309.7, 309.8,

)

R03-19

309.9, 309.10, 309.12, 309.13, 309.14

)

(NPDES Rulemaking)

309.117,

109.119, 309.143, 309.147; and

)

PROPOSED 35111. Adm. Code 120 through

)

122-NPDES PERMITS AND

PERMITTING

PROCEDURES

)

NOTICE OF FILING

TO:

SEE ATTACHED SERVICE LIST

PLEASE

TAKE NOTICE that

on Monday, June

16,

2003, we filed the attached Joint

Comments

Of The

Attainable

Housing

Alliance

and

The

Home

Builders

Association

Illinois with the Clerk of the Illinois Pollution

Control Board,

a copy ofwhich is herewith served

upon you.

Respectfully submitted,

ATTAINABLE HOUSING ALLIANCE AND

HOME BUThDERS ASSOCIATION OF ILLINOIS

BY:~

Sheila H. Deely

GARDNER, CARTON

DOUGLAS

191 N. Wacker Drive

Suite 3700

Chicago, Illinois

60606-1698

(312)

569-1440

RECEIVED

BEFORE THEILLINOISPOLLUTIONCONTROL BOARD

 CLERK’S

(~FFIr~

JUN

162003

THE MATTER OF:

)

STATE OF iLLINOIS

Pollution

Control Board

PROPOSEDAMENDMENTS TO:

)

R03-19

PART 309 SUBPARTA

)

 Ill. Adm. Code 309. 105, 309.7, 309.8,

)

309.117, 309.119, 309.143, 309.147; and

)

PROPOSED

 Ill. Adm. Code 120 through

)

122

 NPDES PERMITSAND PERMITTING)

PROCEDURES

)

JOINTCOMMENTS

THE ATTAINABLE HOUSING ALLIANCE

AND

THE

HOME

 BUILDERSASSOCIATION

OF ILLINOIS

The Attainable Housing Alliance (“AHA”) and the Home Builders Association of

Illinois

(“HBAI”) submit the following comments on the rulemaking proposal filed in this

docket by the Environmental Law

and Policy Center of the Midwest and its co-petitioners

(“Petitioners”) proposing revisions

public participation rules

governing the issuance of

NPDES permits

by the Illinois Environmental Protection Agency (“IEPA”).

HBAI is comprised of thousands of member firms

from local

associations in every

geographic region of the State and is affiliated

with the National Association of Home

Builders.

Member firms ofHBAI include homebuilders, developers,

remodelers,

suppliers,

subcontractors, and

other affiliated businesses.

HBAI advocates the concept of attainable

quality

housing for all

residents of the State of Illinois.

AHA presently represents over

800 members of the Northern

Illinois Home Builders

Association,

the Home Builders Association of the Greater Fox Valley and

the Home Builders

Association of Greater Chicago.

AHA was formed

to provide a unified voice for the building

industry in the eight-county metro area, including Chicago.

The goal of AHA is to represent

the housing industry on public policy

issues that affect

the attainability and ownership of

housing.

AHA believes that the subject of this rulemaking is one

such issue.

HBAI and AHA understand that various

parties have been involved with Petitioners

discussions concerning these rules.

Neither HBAI nor AHA had the opportunity to

become

involved in these discussions.

AHA’s and HBAI’s members are directly affected by this

rulemaking in two ways:

first, homebuilders are required to obtain NPDES permits

for

discharges of stormwater from construction activities.

This

permit is typically

a general

permit,

which is

subject to rules concerning public notice at the time the general permit is

issued by IEPA;

second, homebuilders are required to obtain services from the publicly

owned wastewater treatment facilities that themselves obtain

NPDES permits.

HBAI and AHA strongly support public participation in a transparent decision-making

process by the Illinois

EPA,

so long as the requirements

to be applied during

that decision-

making process are transparent and

authorized by law,

and so long as participation is not used

as a means to

delay or thwart the decision-making process, to

impede growth, or to impose

burdensome new requirements that are not required by law.

HBAI and AHA are,

however,

familiar with the use of environmental rules to

stymie

growth or for NIMBY purposes,

including

in the current Facility Planning Area process, and HBAI and AHA are extremely

concerned

that the rules proposed by Petitioners are directed not at allowing effective public

participation but at facilitating the same types of frivolous challenges aimed at limiting or

thwarting permittees and their users.

Part of the purpose of promulgating rules governing public

participation is to balance

the interests of the regulated party in continuing to perform legal activities

with the interest of

the public in receiving information

on the rules

and regulations applicable to proposed

activities.

The rules proposed by Petitioners would shift this balance, resulting

in an unfair

burden

and delay on regulated parties and their activities,

with no justification or identification

of any deficiency in the existing rules.

Petitioners

point to the public’s interest

in reviewing

effluent limits

and monitoring provisions as the reason for these rules.

It is important to

remember that the substantive provisions

in NPDES permits

are derived from regulations that

are themselves subject to public notice

and

comment,

and

where the public believes that a

permit

has been issued in violation of a legal

requirement, it has ample opportunity to

challenge that permit.

The existing procedural rules

are

routinely

abused by Petitioners.

HBAI and AHA

concur with other commenters that the proponents of this proceeding have utilized procedural

rules and the threat of objections to proposed NPDES permits

and requests for public

hearings,

as well as the actual public hearing process itself,

to negotiate monitoring requirements,

effluent limitations,

load restrictions,

flow diversions

and other requirements not presently

required by the Clean Water Act, the Illinois

Environmental Protection Act or existing Board

regulations.

This tactic has been most successful when a POTW is faced with an urgent need

to begin construction because of new significant development in its

service area.

By in essence

holding the permit hostage, environmental groups have attempted to extract concessions not

required by

existing regulations.

The Petitioners now seek to strengthen their arsenal with

unending public cOmment periods and requests for public hearings in order

further stymie

expansion of POTWs.

These proposed rules are not

required by

rules allowing public

participation nor are they necessary to

fulfill the requirements of public notice.

These

requirements would involve a substantial cost to the State of Illinois

at a time of severe budget

crisis and a cost

to permittees in a poor ec6nomy, as well as a negative impact on

the regulated

community by delaying the construction of needed new treatment facilities to accommodate

growth.

HBAI and AHA concur with other commenters

that vague and unclear

standards

and

guidance documents of U.S.

EPA are not an appropriate basis

for a regulatory standard.

These guidance documents have not themselves been adopted by

U.S.

EPA

and

are not

intended to bind states issuing

NPDES permits.

Further, U.S.

EPA’s approval of the existing

NPDES procedural rules shows that there

is no

deficiency in the current rules,

as claimed by

the

Petitioners.

Indeed,

the hearings in

this matter are replete with statements by

Petitioners

that IEPA

is already providing the information that Petitioners

believe to be

necessary.

Petitioners

routinely comment on NPDES permits

and

have a current mechanism available to

allow for public hearings, which are routinely

granted by the IEPA.

HBAI

and

AHA believe

that

Petitioners have received ample opportunity

to obtain

information on proposed permits and

participate in the permit issuance process.

That Petitioners now have an opportunity to pursue

third-party challenges,

which enlarges their powers with respect to permits, does not justify

making the public hearing process more burdensome,

costly, and subject to abuse.

Although HBAI and

AHA object to this rulemaking as a whole as wholly unwarranted

and not justified by Petitioners,

HBAI and AHA specifically

object to the following provisions:

Sections

309.105(1)

and (g)

HBAI and AHA concurs with the IEPA that these sections are repetitive and

unnecessary and provide little in the way of substantive legal guidance

and HBAI and AHA

object to

providing regulations that do

not themselves

identify substantive requirements.

The

most these provisions do

is provide Petitioners

with the opportunity

to add procedural

roadblocks and thereby delay or challenge issuance of a permit with argument about whether

they have had

a fair opportunity to comment on

a permit or the consistency of the permit with

applicable

federal law.

Petitioners admitted as much in their characterization ofthese sections

at the hearing as intended for the purpose of providing a

“handle” for the Board to

overturn

rulings, which Petitioners believe to be the reason for the adverse decision in the

Black Beauty

case.

Further,

HBAI and AHA believe that the examples provided at the hearing of legitimate

things that can “go

wrong” in a permit proceeding

can be easily addressed using

current

regulations

and existing principles of administrative review.

Section

309.107

HBAI and AHA believe that this

provision is unnecessary and does not know what

interest Petitioners

have in the Illinois

Department of Natural Resources’

(IDNR)

notification

or what role IDNR has to play in the NPDES permit process.

Petitioners testified that IEPA

should

call upon all of the “biological

expertise” that

available to it.

Like IEPA, IDNR is

creation of statute and cannot exercise any power not granted by the legislature.

To the extent

IDNR has an interest authorized by

statute in the subject of an NPDES permit,

it should have

its

own authority

impose requirements on that activity

directly.

In the alternative, the

interest of IDNR

in commenting on a proposed permit should be clearly stated, just as the

interest of the Army Corps of Engineers is

clearly stated in subdivision

(a) of this

same

section.

the extent IDNR does not have a legal interest in the subject of an activity,

it is

not legally entitled

specific notification

pursuant to Board

rules.

Further,

as to the wording proposed by the IEPA, the language

is unclear in the

reference to

a memorandum of agreement between IDNR and IEPA.

Clarification is necessary

as to whether a separate memorandum of agreement is

a condition to the notification

requirement,

is intended to

limit the notification requirement,

or is intended to further define

coordination between the agencies.

HBAI

and AHA further note that to the extent further

coordination imposes any

requirements on the applicant or purports to allow IDNR to comment

on any

aspect of an NPDES

permit, this requirement must be authorized by statute and subject

to notice and comment.

Section 309.108(e)

HBAI and AHA believe that this provision is

substantially burdensome and not required

law.

This

language has been recognized by many commenters as an attempt to shift the

burden of proof in a permit challenge from the Petitioners and

other permit

challengers to

IEPA and, as a practical matter, the permittee.

This

is a result to

which

HBAI and AHA

strongly object.

The Agency

is already obligated to

compile an administrative record.

Further, while HBAI

and AHA have

no objection to the counter-provision in IEPA’s

comments,

HBAI

and AHA believe this

provision is not necessary

and does not support the

need for a rulemaking.

The administrative record is typically made up of everything before the

IEPA (or any

other administrative agency), including those

documents relied on by

the IEPA.

Section 309.110(1)

HBAI

and AHA concur with the comments of other parties that the information that

purported

to be solicited by this provision

is generally included in the Agency’s public notices.

Notwithstanding,

the provision drafted by

Petitioners goes beyond the federal

requirements that

Petitioners purport require the proposed language.

Further,

HBAI and AHA believe that clear

requirements of statute

and regulations

applied in a transparent manner should govern

issuance

of permits,

and

not public comments

or procedures.

Further, HBAI and AHA with other

commenters that these comments

are vague as written and

appear likely to be a basis

for

further procedural challenges and delays on issuance of permits.

Section 309.113

The Petitioners

have added six new requirements

to this

subsection.

HBAI and AHA

believe they are not required by

law or are not necessary for procedural rules.

HBAI

and

AHA concur with the IEPA that proposed section

(a)(5)

is repetitive and unnecessary.

Subdivisions

(a)(6) through (a)(9) appear intended to impose burdensome procedural

requirements on IEPA and, consequently,

on permittees.

Section

309.117

HBAI and

AHA believe this

section is not

necessary, as the administrative record is

defined by

law, not the IEPA or the public, and

already includes every document

identified in

this

section.

Section 309.120

Petitioners propose to require the public

commenter as well as permit applicants to

“raise all reasonably ascertainable

issues

and submit all

reasonably available arguments

supporting their position by the close of the public comment period.”

Like many of the other

proposed changes, this section is not necessary, as the burden on applicants and commenters

for purposes of the administrative record is defined by law, not the IEPA or the public.

Further,

HBAI and AHA concur with other commenters that there is

a fundamental difference

between the permittee and commenters both during the permitting process and administrative

review,

and HBAI and

AHA note that these rules are intended to govern public

participation,

not the permittee,

who cannot reasonably be termed a member of the public

for its

own

application.

Finally, HBAI

and AHA strongly object to

the provision allowing extension ofthe

public comment period and the particularly lenient standard that is

sought to govern requested

extensions,

which would be easily manipulated

and likely to lead to unacceptable delays.

Sections 309.121

and 309.122

These sections proposed by Petitioners are intended to

reopen the public

comment

period

allowing a new series of public

comments and responses.

HBAI and AHA strongly

object to

these sections, which are overly broad

and confusing,

and will result in turning the

process of issuance ofan NPDES permit into a public

negotiation rather than a process

governed by substantive regulations that have themselves been issued with public notice

and

comment.

Public participation requirements are intended primarily to provide the public with

information and to ensure that the public has a reasonable opportunity to

comment, but the

requirements should

not allow this participation to the detriment of the rights of applicants to

proceed with

their activities

a reasonable time.

These proposed sections would infringe on

the rights of permittees by causing undue delay in permit issuance and expense to both the

JEPA

and

permittees.

Section 309.143

HBAI

and AHA believe that this provision is unnecessary in light of the current

provision found at 309. 141(d)(1).

HBAI and AHA concur

with other commenters that

Petitioners appear to be proposing this language for the purpose of bolstering likely future

challenges to

NPDES permits rather than facilitating effective public participation.

Section 309.146

HBAI

and AHA concur with other cornmenters that these provisions have not been

justified by the Petitioners and are not warranted by

existing law.

Petitioners have not

provided

any context or real deficiencies to support their claims that the current procedural

rules are insufficient for purposes of compliance.

These provisions

appear again to

proposed for the purpose of bolstering

likely

future challenges to NPDES permits.

Respectfully submitted,

ATTAINABLE HOUSING ALLIANCE AND

HOME BUILDERS ASSOCIATION OF ILLINOIS

By:____________

Sheila H. Deely,

Counsel for Attainable Housing Alliance

and Home Builders Association ofIllinois

Sheila

H. Deely

GARDNER CARTON & DOUGLAS LLC

191

N. Wacker Drive

Suite 3700

Chicago, Illinois

60606-1698

(312) 569-1440

CHO1 /12293787.1

CERTIFICATE OF SERVICE

The undersigned certifies that

a copy of the

foregoing

Notice of Filing

—

Joint

Comments Of The Attainable Housing Alliance and The Home Builders Association of

Illinois

were filed by hand delivery with the Clerk of the Illinois Pollution Control Board 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

North Wacker Drive,

Chicago, Illinois on Monday, June

16, 2003.

Sheila H. Deely

CH01112295040.

ServiceList

Fredric P. Andes

Barnes & Thornburg

2600 Chase Plaza

10 South LaSalle Street

Chicago, IL

60603

Larry

Cox

Downers Grove Sanitary District

2710

Curtiss Street

Downers Grove, IL

60515

John Donahue

City

ofGeneva

1800 South Street

Geneva, IL

60134

Mathew

Dunn

Illinois Attorney General’s Office

James R.

ThompsonCenter

100WestRandolph Street

Chicago, IL

60601

Susan Franzetti

Sonnenschein

Nath& Rosenthal

8000 SearsTower

Chicago, IL

60606

Dorothy

Gunn

Pollution Control Board

100 WestRandolph, Suite 11-500

Chicago, IL

60601

Roy M.

Harsch

Gardner, Carton & Douglas

191

Wacker

Drive,

Suite3700

Chicago,

60606

Katherine Hodge

Hodge,

Dwyer, Zeman

3150

Roland Avenue

P.O.

Box 5776

Springfield,

62705-5776

CHOI/12294315.I

W.C.

Blanton

Blackwell, Sanders, Peper,

Martin,

LLP

2300

Main,

 Suite 1000

Kansas

City,

64108

James Daughtery

Thom Creek

Sanitary District

700WestEndAvenue

Chicago Heights,IL 60411

Dennis L.

Duffield

Director ofPublic Works and Utilities

921

Washington

Street

Joliet,

60431

Albert

Ettinger

Environmental

Law

and

 Policy Center

WackerDrive, Suite 1300

Chicago, IL 60601-2110

LisaFrede

Chemical Industry Council

250

E. Devon Ave., Suite 239

Des

Plaines, IL

60018

James

Harrington

Roos&

Hardies

150N.

Michigan, Suite

2500

Chicago,

60601

Ron Hill

MetropolitanWater Reclamation District

100 East Erie

Chicago,IL 60611

Fred L. Hubbard

Counsel for Vermillion CoalCompany

415 North Gilbert Street

P.O. Box 12

Danville, IL 61834-0012

Page

1 o12

ServiceList

Gerald T.

Karr

Assistant Attorney General

Environmental Bureau

188WestRandolph,

20th

Floor

Chicago,

IL 60601

Robert T. Lawley

IllinoisDepartmentof

Natural

Resources

One Natural

 ResourcesWay

Springfield, IL

62702-1271

Vickey McKinley

EvanstonEnvironmentalBoard

 223 GreyAvenue

Evanston, IL

60202

Robert Messina

IllinoisEnvironmental RegulatoryGroup

215 EastAdams

Springfield, IL 62701

Erika

Powers

Barnes & Thomburg

10 South LaSalle, Suite 2600

Chicago, IL

60201

Thomas G. Safley

Hodge, Dwyer, Zeman

3150 Roland Avenue, P~O.

Box 5776

Springfield, IL

62705-5776

Sonjay Sofat

IllinoisEnvironmental ProtectionAgency

1021N. GrandAve. East, Mail Code #21

Springfield,IL 62794-9276

Mary

 Sullivan

Illinois-American Water

 Company

P.O. Box24040

Belleville, IL 62223-9040

ConnieTonsor

Illinois Environmental ProtectionAgency

1021 N. GrandAve. East,

Mail

Code #21

Springfield, IL 62794-9276

CHOI/122943 15.1

Frederick Keady

Vermillion Coal Company

P.O. Box 688

Glenview, IL

60025-0688

Clarie A. Manning

Attorney

111

N. Sixth Street

Springfield, IL

62701

Alec Messina

General Counsel

3150 Roland Avenue

Springfield, IL

62703

Irwin Polls

Metropolitan WaterReclamation District

6001 West Pershing Road

Cicero, IL

60804

Michael Rosenberg

Metropolitan WaterReclamation District

100 East Erie

Chicago, IL

60611

Sue A.

Schulz

General & Associate Corporate Counsel

300 N. Waterworks Drive

Belleville, IL

62223-9040

Joel Sternstein

Assistant Attorney General

188 West Randolph,

20th

Floor

Chicago, IL

60601

Marie Tipsord

Attorney, Pollution Control Board

100 WestRandolph, Suite 11-500

Chicago, IL

60601

Charles Wesseihoft

Ross & Hardies

150 N. Michigan Avenue

Chicago, IL

60601

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