NOTICE OF FILING
C. Overviewof theIEPA Proposal to theBoard 12
IV. Proposed Changes to the IEPA Proposals
CONCLUSION
H 1-‘NOIS REGISTER
POLLUTION CONTROL BOARD
NOTICE OF PROPOSED AMENDMENTS
ILLINOIS REGISTER
POLLUTION CONTROL BOARD
NOTICE OF PROPOSED AMENDMENTS
ILLINOIS REGISTER
POLLUTION CONTROL BOARD
NOTICE OF PROPOSED AMENDMENTS
POLLUTION CONTROL BOARD
NOTICE OF PROPOSED AMENDMENTS
ILLINOIS REGISTER
POLLUTION CONTROL BOARD
NOTICE OF PROPOSED AMENDMENTS
ILLINOIS REGISTER
POLLUTION CONTROL BOARD
NOTICE OF PROPOSED AMENDMENTS
POLLUTION CONTROL BOARD
NOTICE OF PROPOSED AMENDMENTS
POLLUTION CONTROL BOARD
NOTICE OF PROPOSED AMENDMENTS
Section 106.995 Board Action
ILLINOIS REGISTER
POLLUTION CONTROL BOARD
NOTICE OF PROPOSED AMENDMENTS

Illinois Water Quality Report
Illinois Environmental Protection Agency
Bureau of Water
Antidegradation Implementation for
1. WQS and Effluent Limit Calculations and Recommendatior
MEMORANDUM

BEFORE

THE

ILLINOIS

POLLUTION CONTROL

BOARD.

IN THE

MATTER OF:

REVISIONS TO ANTIDEGRADATION

RULES:

ILL.

ADM. CODE 302.105,

303.205, 303.206, AND

106.990 —106.995

)

R01-13

)

(Rulemaking-Water)

)

NOTICE OF FILING

PLEASE TAKE NOTICE that on this

date, January 18, 2001,

I filed with Dorothy Gunn,

Clerk of the Illinois

Pollution Control

Board,

James

R. Thompson

Center,

100

West Randolph,

Suite

11-500,

Chicago,

60601,

the

enclosed

Memorandum

Law

and

Supplemental

Testimony. of the Environmental

Law

& Policy Center, Friends of the Fox River, Prairie Rivers

Network and Sierra Club in the above-captioned proceeding.

Albert F. Ettinger (ARDC

125045)

Counselfor Environmental Law & Policy

Center, Friends oftheFox River, Prairie

Rivers Network and Sierra

Club

35 East Wacker Drive, Suite

1300

Chicago, IL

60601-2110

(312) 795 3707

January

18,

2001

TABLE OF CONTENTS

THE

CLEAN WATER ACT ANTIDEGRADATION POLICY

Enactment ofFederal and Illinois Regulations

Clean Water Act Antidegradation Requirements

and the Established Illinois Regulations

Maintenance of Existing Uses (Tier I)

Allowing Only Degradation Necessary to Accommodate Important

Economic or Social Development (Ifier II)

Protection ofOutstanding Resource Waters (Tier III)

II.

THE

AGENCY PROPOSAL

New Illinois

Regulations are Needed

Current IEPA Application of Antidegradation Principles in Permitting

Decisions is Flawed

C.

 Overviewof theIEPA Proposal to theBoard

12

III.

 THE BOARD SHOULDADOPTRULES THAT

ASSURE THAT NPDES

PERMITS AND

401

CERTIFICATIONS MAINTAIN WATER QUALITY

The Board Should Not Fashion A “Significance” Threshold or Create a

“DeMinimis”ExemptionfromReview

Every increase should be given at Least some review

There is no reason under the proposed regulatory scheme to exempt

any permits for

increases in pollution from receiving some level of

review

There is no

good way to define “significance” or carve out a de

inininiis exemption

Practical considerations do not support requiring a determination of

significance

•

19

The board

must exercise great care before adopting antidegradation

provisions from other states and regions

The Occasions on which an Antidegradation Demonstration Is

Required

The Application and Supporting Data to be Required of

Permit Applicants

The Board Should Eliminate or Limit the Exception for General

Permits

Citizens

Seeking Outstanding National Resource Water Designations Should

notbe Burdened Unduly

No Special Interest Exemption Should Be Allowed for the

Mining

Industry

The Board and the draft Agency Implementation Procedures

(Part 354)

IV.

Proposed Changes to the IEPA Proposals

Proposalsforlmprovementsto302.105

Proposals for Improvements

to Section 303.205

ProposalsforSectionlO6

Proposal to Amend Existing 35 III.

Adm

Code 406 Subpart

Proposals for Improvements to the Agency Implementation Rules

\T~

CONCLUSION

APPENDIX AND EXHIBITS

Appendix A -Proposed changes to the Agency Proposal to the Board

(without Environmental Groups’ proposed changes to 35 Ill.Adm.Code 406

and proposed 35 Ill.Adm.Code 354)

Exhibit

Excerpt from

“Illinois Water Quality

Report 2000”

Exhibit

Antidegradation Implementation for Water Quality Protection

in South Carolina

Exhibit

Examples of recent IEPA Nondegradation

Evaluation

Exhibit 4- Examples of IEPA Analyses using remote using monitoring stations

for background data in determining reasonable potential to exceed.

Exhibit

Letter by Region III U.S. EPA to the Chairman ofthe West Virginia

Environmental Quality Board, October 25, 2000

BEFORE THE

POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

IN THE

MATTER

OF:

)

Revisions

to Antidegradation Rules:

)

R01-13

Ill.

Adm. Code

302.105,

303.205,

)

303.206 and

106.990-106.995

)

MEMORANDUM OF LAW AND SUPPLEMENTAL TESTIMONY OF THE

ENVIRONMENTAL LAW AND POLICY CENTER, FRIENDS OF

THE

FOX RIVER, PRAIRIE RIVERS NETWORK AND SIERRA CLUB

The Environmental Law and Policy Center ofthe Midwest, Friends ofthe Fox River,

Prairie Rivers Network and

the Illinois Chapter of the Sierra Club (collectively “Environmental

Groups”) submit this

memorandum of law and supplemental testimony in support ofadoption by

the Board of antidegradation standards that will effectively maintain the chemical, physical and

biological

integrity ofIllinois rivers,

streams, lakes and wetlands.

This memorandum provides legal and

factual background regarding antidegradation

policies and standards, the Environmental Groups’

views ofthe issues that have been raised in

this proceeding, and specific proposals for improvements to the antidegradation standard

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

In addition, questions

relating to adoption ofAgency implementation procedures (Part 354, a preliminary draft of

which is attached as Exhibit B to the IEPA Motion for Acceptance, filed August 29, 2000) will

be addressed to the extent that the implementation procedures are relevant to this Board

proceeding.

THE CLEAN WATER ACT ANTIDEGRADATION POLICY

The purpose and proper interpretation ofthe federal antidegradation policy

should

viewed in

the context ofthe goals of the

1972 Clean Water Act (“CWA”).

The objective of

the CWA “is to

restore and maintain the chemical, physical and biological integrity of the

Nation’s waters.”

33 USC~125 1(a).

In the CWA, Congress set as an

interim national goal that

“wherever attainable

...

water

quality which provides for the protection and propagation offish,

shellfish and

wildlife and provides for recreation in and on the water be achieved by July

1983.” 33

USC §1251(a)(2).

Water quality was to

improve not degrade.

Congress plainly did

not anticipate that large numbers of new discharges and other sources of pollution would be

licensed after the passage of the Act

as it established

elimination ofall discharges

1985 as a

national goal. 33

USC

1251(a)(1).

Enactment of Federal and Illinois Regulations

The antidegradation policy actually proceeded passage ofthe CWA.

As was explained

by the United States Environmental Protection Agency (“U.S. EPA”) in the Water Quality

Standards Handbook, Second Edition, EPA 823-B-94-0005a (“USEPA Handbook”)’:

The

first antidegradation policy statement was released on

February 8,

1968,

by the Secretary ofthe U.S.

Department of

Interior.

It was included in EPA’s first Water Quality

Standards

Regulation

...

and was slightly refined and re-promulgated as part

ofthe current program regulation published on November 8,

1983

(48 F.R. 51400, 40 CFR 131.12).

Antidegradation requirements

and methods for implementing those requirements are minimum

conditions to

be included in a State’s water quality standards.

Antidegradation was originally based on the spirit, intent and

goals

.This document is Exhibit A to

the Motion

for Acceptance, filed in this proceeding by

Illinois EPA, August 29, 2000.

ofthe Act, especially the clause

“...

restore and maintain the

chemical, physical, and biological

integrity of the Nation’s water”

(101(a)) and the provision of 303(a) that

made water quality

standards under prior

law the “starting point” for CWA water

quality requirements.

The original

1968 policy adopted by

Interior Secretary Stewart Udall provided:

Waters whose existing quality

is better than the established

standards as of the date on which

such standards become effective

will be

maintained at their existing high quality.

These and other

waters of a State will not be

lowered in quality unless

and until it

has been affirmatively demonstrated to

the State waterpollution

control agency and the Department ofInterior that such change is

justifiable as a result ofnecessary economic or social development

and

will not interfere with or become injurious to

any assigned

uses made of, or presently possible in, such waters.

U.S.

Dept. Interior Federal Water Pollution Control

Administration, Compendium ofDept. ofthe Interior Statements

on Non-degradation ofInterstate Water 1-2 (Aug

1968)

reprinted

in,

Harleston, John, What is Antidegradation Policy:Does Anyone

Know?,

S.C. Envtl.

L.J.

33, 40 (1996)

Illinois’

current nondegradation policy, adopted by the Board in 1972 in

PCB 71-14 and

now contained at 35

Ill. Adm. Code

302.105, plainly is related to the

1968

federal policy.

states

Waters

whose existing

quality is better than the established

standards at their date oftheir adoption will be maintained in their

present high quality.

Such waters will not be lowered in quality

unless and until it is affirmatively demonstrated that such change

will not interfere with or become injurious to any appropriate

beneficial uses made ofor presently possible in, such waters and

that such change is justifiable as a result ofnecessary economic or

social development.

2The U.S.

EPA Antidegradation policy was recognized and codified by Congress in

1987

and

1990 through passage ofamendments to

the CWA that were codified

as 33

USC

§13l3(d)(4)(B) and 33

USC §l268(c)(2)(A).

In adopting this standard,

the Board explained:

This

preserves the present prohibition on

unnecessary degradation

of waters presently of better quality than that required by the

water

quality

standards, recognizingthat the standards represent

not optimum water quality but the worst we are prepared to tolerate

if economic conditions so require.

In the Matter ofWater Quality

Standards Revisions, (PCB March 7,

1972) 71-14, p.

II.

Clean Water Act Antidegradation Requirements

and

the Established Illinois Regulations

The regulation that states the federal antidegradation policy,

40 CFR 131.12, requires that

states provide essentially three types ofprotection for their waters.

Following this regulation, the

standards adopted by the Board in this proceeding must, “at a minimum, be consistent with” the

following:

(1)

Maintenance of Existing Uses (Tier I)

The first requirementfor an adequatestate antidegradationpolicy

is maintenance ofexisting

uses:

Existing instream water uses and the level ofwater quality necessary

to protect the existing usesshall be maintained and protected. 40 CFR

§131.12(a)(1)

Section 4.42 ofthe U.S.

EPA Water Quality Standards Handbook explains:

activity

allowable under

the

antidegradation policy

which

would partially or completely eliminate any existing use whether or

not that use is designated in a State’s water quality standards.... Non-

aberrational resident species must be protected, even ifnot prevalent

in number orimportance.

Water quality should be suchthat itresults

in no mortality and no significantgrowth orreproductive impairment

3This point

is repeated in 40 CFR

131.1 2(a)(2) where it is emphasized that, even where

accommodation ofimportant economic or social development necessitates allowing new

pollution, “the State shall assure water quality adequate to

protect existing uses fully.”

of resident

species.

Any lowering of water quality

below this

full

level of protection is not allowed. (p. 4-5)

The

Environmental

Groups

believe

strongly

that,

with

the

assistance

of the

Illinois

Department ofNatural Resources (“IDNR”), IEPA

must make greater efforts to

assure that new or

increased discharges ofpollutants will not harm aquatic life in receiving waters.

Although there are

other provisions which protect

existing uses from

some threats, antidegradation has a critical role

to play in protecting existing usesofIllinois waters, including protection ofindigenous aquatic life.4

4Another way that existing uses are protected is to

only allow discharges ofpollutants if

the discharges will not cause a violation of state water quality standards. Water quality standards

are supposed to

protective ofaquatic life and other existing uses.

40 CFR

131.10.

In Illinois,

water quality standards

include the numeric and narrative standards of35

Ill Adm.

Code 302.

No National Pollutant Discharge Elimination System (“NPDES”) permit may be granted

which allows discharges that may cause or contribute to violations ofwater quality standards.

CFR

§ 122.44(d), which implements CWA Section 301 (b)(I )(C), explicitly requires that NPDES

permits include restrictions “necessary to achieve water quality standards

...

including State

narrative criteria.” American Paper Institute v.

U.S. Environmental Protection Agency, 996 F.2d

346,

350 (D.C. Cir.

1993). Permit “~limitations must control all pollutants or pollutant

parameters (either conventional, nonconventional or toxic pollutants) which the Director

determines are or may be discharged at a level which will cause, have a reasonable potential to

cause, or contribute to an excursion above any State water quality standard, including state

narrative criteria for water quality.” 40 CFR §122.44(d)(1)(i); see also,

40 CFR 122.4(d) and (i).

Illinois regulations (35 Ill. Adm. Code 304.105) require that any effluent or combination of

effluents be regulated to

insure that there is compliance with all applicable water quality

standards in

all waters that may be affected by the discharge. In the Matter of: Petition of

Commonwealth Edison Company forAdjusted

Standard from 35 Ill. Adm. Code 302.211(d) and

AS 96-10 (PCB, October 3, 1996)

Realistically,

enforcement of water quality standards is not sufficient.

Many Illinois

numeric standards are far from being protective.

This situation must be addressed, but Illinois

cannot hope to develop protective standards for the thousands ofchemicals that may harm

Illinois waters.

Moreover, water quality standards generally are not designed to be protective of

all species.

They are based on protecting 95

ofthe individuals of the small number of,

hopefully representative, species tested.

(Frevert Testimony, Dec. 6, 2000,

Tr.

24-5)

Generally, proper

protection of resident species requires knowledge ofthe biology of the

receiving waters sufficient to determine if particularly sensitive species are present.

Individualized

consideration ofwhether the proposed new pollution will affect the species present is also normally

necessary.

Protection ofrecreational

and other

uses also often requires

individualized treatment.

The antidegradation standard for protectingexisting uses is particularly importantwith regard

activities

that harm water quality that generally are not

subject to NPDES

permitting, such as

stream channelization, filling wetlands and dam construction.

These activities are subject to state

oversight through the Section 401,

USC

1341, certification process which prohibits the Corps

ofEngineers from issuing

a permit to

fill waters ofthe United States unless the state has certified

that the activity will not violate state waterquality standards, including its antidegradation standard.

See, PUD No.1 ofJefferson County v. Washington Dept. ofEcology, 511

U.S.

700 (1994).

The

latest

Illinois

Water

Quality

Report

states

that

hydromodification

and

habitat

modification are responsible for the impairment of over 3000 miles ofIllinois’ rivers and streams.

(Ex. 1)

Nonetheless, new permit requests forpermissionto destroy wetlands and channelize streams

continue to be submitted and approved by the Corps and IEPA.

Illinois must workmorerigorously

to assure that projects that threaten to degrade the biological or physical integrity ofIllinois waters

are denied 401

certification:

(2)

Allowing Only Degradation Necessary to

Accommodate

Important Economic or Social Development(Tier II)

40 CFR l3l.l2(a)(2) provides:

Where the quality of the waters exceed levels necessary to support

propagation of fish, shellfish, and

wildlife and recreation in and

the water, that quality shall be maintained and protected unless the

State

finds,

after

full

satisfaction

the

intergovernmental

coordination

and

public

participation

provisions

the

State’s

continuing

planning

process, that

allowing

lower water

quality

necessary to accommodate important economicorsocial-development

the

area

which

the

waters

are

located.

allowing

such

degradation

lower

water

quality,

the

State

shall

assure

water

quality adequate to protect existing uses fully. Further, the State shall

assurethat there shall be achieved thehighest statutory and regulatory

requirements

for

all

new

and

existing

point

sources

and

all

cost-

effective and

reasonable

best

management

practices

for

nonpoint

source control.

The central purpose of this provision is to preserve water quality to

the extent possible. As

was statedby the Board in

1972 in adopting thepresent “nondegradation” standard, the numeric and

narrative standards “do not represent optimum waterquality but the worst weareprepared to tolerate

if economic conditions so require.”

(Supra

p. 4)

To put the matter another way, the assimilation capacity of a water is a public

resource that

should not

be frittered away.

During the.November hearing, Toby Frevert explained:

The

underpinnings ofthis whole program is that additional

that

residual capacity ofthe stream

to accept waste is,

indeed, a public

resource.

And if that

public

resource

allocated

individual

entity,

then

there

ought

some

public

role

playing

the

allocationofthat resource to that individual entity and there ought to

be some indication ofwhy that is generally consistent with the good

ofthe public

at large. (Frevert Testimony, Nov.

17, 2000, Tr.

35-6)

IEPA’s Frevert elaborated on this concept later during the November hearing:

The antidegradation policy

at the federal

level basically says

that

any

increment of water quality

better than what

you

define as the

floor necessary

to protect that existing use is a public resource, and

that public resource shall be allocated to other people consistentwith

the general intent of the public at large and their overall social and

economic goals.

(Tr.104-05)

The amount of assimilative capacity ofa water used by one activity

is assimilative capacity

that cannot be used by

another activity.

Pollution unnecessarily

allowed to one new or increased

discharger may stop important social or economic development that cannot take place because the

required capacity has been squandered.

A few additional points should be made with regard to this provision.

First, the regulation

is not limited in

its scope to waters that areof unique or exceptional “high quality.”

The regulation

speaks rather ofwaters with quality that “exceeds levelsnecessary” to protect uses.

Waters need not

exceed this level very much.

D—

(as well as A+) members ofthe classofwaters are coveredbecause

they pass standards, even if only just barely.

Thus, although there are numerous instances ofthis provision-being-re-ferred to in letters and

guidance as one protecting “high quality” waters,

speaking of this regulation as governing “high

quality”

waters

really

misnomer.

Every

water

that

meeting

any

of the

water

quality

parameters adequate to protect existing or designated uses is covered. (Frevert Testimony, Nov.

17,

2000,

Tr.

118,

122-3)

Second, the waters must be lookedaton a parameter-by-parameterbasis. (Frevert Testimony,

Nov.

17,

2000,

Tr.122-24;

See

also,

U.S.

EPA

Handbook

p.4-8

“EPA

believes

that

its

antidegradation

policy

should

interpreted

pollutant-by-pollutant

and

waterbody-by-

waterbodybasis”)

To repeat Mr. Frevert’s example, the fact a wateris failing to meet the ammonia

standard does not

mean that the water is not protected from unnecessary new loadings ofcopper.5

‘Under these circumstances, the water requires a TMDL for ammonia under Section

303(d) ofthe Act, 33 USC §1313(d), and no new discharge ofammonia can be permitted unless

it is at such a low concentration that the ambient level ofammonia actually falls.

(see Frevert

Testimony,

Nov.

17,

2000, Tr.

126.)

The Nation certainly will not meet its goal of restoring and maintaIning the chemical integrity of

its

waters if it allows unnecessary new loadings of a pollutant just because the water is

violating

standards for another pollutant.

Finally,

minimum,

for

lowering of water quality

“necessary

accommodate

important

economic

or social

development,”

must

the case

that

the development

cannot

practicably go

forward without allowing lower water quality.6

In most cases, proper consideration

ofalternatives will require estimating thecosts ofthe various-manufacturing processes and treatment

technologies that would allow the expansion or otherdevelopment to proceed without, or with less,

lowering of water quality.

(3)

Protection of Outstanding Resource Waters (Tier III)

The third major provision of40 CFR

131.12 (a)(3) provides:

(3) Where

high

quality

waters

constitute

outstanding

National

resource, such as

waters of National

and

State parks

and

wildlife

refuges

and

waters

exceptional

recreational

ecological

significance, that water quality shall be maintained and protected.

This

provision

for Outstanding National

Resource

Waters essentially

requires states to

establish provisions for the state and its citizens to declare that the assimilative capacity ofcertain

waters is off limits for new loadings.

The public must be allowed to reserve water quality for the

health ofthe environment and itself.

6The need for an alternatives analysis is well stated in the antidegradation implementation

rules that

have been adopted by the State ofSouth Carolina.

(Ex. 2 at p. 4)

II.

THEAGENCY

PROPOSAL

New

Illinois Regulations are Needed.

Illinois currently

has

a “nondegradation”

policy patterned

the

1968

federal

policy but

Illinois’

regulations

do not comply with current federal law.

The federal regulations require that a

proper

state

antidegradation

standard

contain

safeguards

than

are

contained

Illinois’

nondegradation

policy.

Most obviously,

CFR

l3l.12(a)(3) requires

that

states

provide for

designation of“outstanding National resource” waters that will be protected from any degradation.

Other ofthe principles contained in the

federal regulations are not spelled out clearly in the current

Illinois nondegradation policy.

Most

seriously,

CFR

131.12(a)

requires

each

state

“identify

the

methods

for

implementing”

the state’s

antidegradation policy.

Further,

the adopted

antidegradation policy,

together with implementation rules, must be presented to U.S. EPA for approval. 33 USC §131 3(c).

Illinois has not properly adopted antidegradation implementation procedures under either

state or

federal law.7

As a consequence, Illinois “is essentially on notice that the Illinois program is deficient

in that wedon’t have a fullypromulgated federally approved NPDES implementation procedure to

deal with the antidegradation standard.” (Frevert Testimony,

Dec. 6, 2000, Tr.

130)

7To the extent that it has been following rules in making antidegradation decisions, IEPA

has been operating under a 1992 document referred to as a “draft Agency guidance document”

that

is mentioned in various documents in which IEPA has purported to perform an

antidegradation analysis. See e.g.

Ex. 3.

This document has never been published pursuant to

the Illinois Administrative Procedure Act and has not been approved by U.S. EPA.

The

unpublished draft guidance is, thus,

invalid under Illinois

law, see Senn Park Nursing Center v.

Miller,

104 Ill.2d 169, 470 N.E.2d 1029

(1984), and federal law. see Alaska Clean Water

Alliance v.

Clark, 27 ELR 21330,

ERC (BNA)

1664 (W.D. Wash.1997).

Current IEPA Application ofAntidegradation

Principles

in Permitting Decisions Is Flawed

IEPA’s Toby Frevert testified that little was done to enforce the nondegradation policy for

years.

(November

17, 2000,

Tr.

26-7)

Frevert

further testified

that,

more recently,

IEPA has

applied

antidegradation

principles

considering

permits

but

explained

that

the

Agency

not

currently documenting its

antidegradation decisions adequately.(November

17,

2000, Tr.

34,

36)8

This

not

the place

debate

specific past or current Agency

permits

or permit writing

proceedings.

Still, the Environmental Groups do not want itmisunderstood by the Board or others

that we believe that IEPA has applied federal antidegradation policy or 35 Ill. Adm.

Code 302.105

properly or legally even

recent

permitting

decisions.

IEPA has sometimes

failed,

even very

recently, to assure that existing uses are protected and has often

failed to make any real effort to

determine

new

increased

pollution

of waters

now

meeting

standards

necessary

accommodate important economic or social development.9

The importance, then, oftheseproceedings should not be underestimated. While thecurrent

Illinois

regulations

incorporate

many

the

principles

under

consideration

here,

IEPA

implementation ofthe current Illinois nondegradation standard has been very inconsistent.

Also,

8Other parties have suggested to

the Board that current Agency practice is legally proper

and acceptable. We strongly disagree.

9For example, the perfunctory antidegradation analyses contained in Ex. 3

fail to

investigate and inventory the existing uses ofthe receiving waters or consider seriously the

potential

impact ofthe proposed new discharges.

The presence ofendangered species was

overlooked in several ofthese analyses.

The analyses rely on pronouncements ofdubious

validity without reference to scientific information- or Agency studies determining facts regarding

existing uses.

The cumulative effect ofthe new pollution

under consideration with that ofother

discharges is not analyzed.

These analyses also fail to

consider any manufacturing or treatment

alternatives to allowing the new discharge.

In several cases, increased loading ofpollutants for

which there are well-known control measures (e.g. phosphorus), have been allowed without

consideration ofthe costs and benefits of implementing controls.

IEPA,

permit applicants and the public have been in the position ofhaving to play a game without

proper

written

rules.

The

standards

that

come

out

of this

proceeding

and

the

implementing

procedures

adopted

IEPA

will

have

major

effect

Illinois

NPDES

permits

and

401

certifications.

Overview ofthe IEPA Proposal to the Board

1998,

the

Agency

began

series

public

information

meetings

and

workgroup

conferences designed to develop new antidegradationstandards for Illinois.

The Agency began this

process because ofits recognition that new regulations are federally mandated. (Frevert Testimony,

Nov.

17,

2000,

Tr.

29)

~°

After

two

years

of discussions

involving

several

drafts

and

eight

conferences,

the

Agency

filed

its

proposed

standards

with

the Board

August

2000.

(Frevert

Testimony, Nov.

17,

2000,

Tr. 9,

14)

Leaving aside wholly technical changes, the Agency proposal breaks down into three major

parts,

the second ofwhich addresses a number ofdifferent topics:

Proposed

Sections

106.990

through

106.995

deal

with

petitions

and

proceedings

for

designation of“Outstanding Resource Waters”

Proposed Section 302.105 has five subsections

Subsection (a) addresses protection ofexisting uses

Subsection (b) sets forth the standards for protection ofwaters designated as ORWs

‘°Ithas been suggested during these proceedings that a 1997 threat by certain

environmental organizations, including

two ofthe organizations joining in this memorandum, to

sue US EPA to force it to

write antidegradation regulations for Illinois may have moved IEPA to

improve Illinois antidegradation standards and implementatinnprocedures.

This may be true but

irrelevant to this proceeding.

That IEPA required some persuasion to

initiate this process does

not bear on the merits ofwhat it has proposed.

Subsection (c) addresses the demonstration that must be made before permission is

given to

increase pollutant loadings to waters now having water qualiTy better than

the minimum necessary to meet established water quality standards.

Subsection

(d)

sets

forth

certain

activities

not

subject

antidegradation

demonstration,

and

Subsection

(e)

makes

a clarification regarding antidegradation standards

for Lake

Michigan.

Proposed Sections 303.205 and 303.206 define“Outstanding Resource Waters” and provide

for a place in the Code for listing waters designated as such.

Attached to the Agency’sproposed standards (asExhibit B) aredraft Agency implementation

rules

(Part

354).

The Agency

not

submitting

the draft implementation

procedures for formal

consideration by the Board but wants the Board to be aware ofthese draft procedures- in-considering

the proposed standards.

(Frevert Testimony, Nov.

17, 2000, Tr.

20, 24)

III

THE

BOARD

SHOULD ADOPT

RULES

 THAT

ASSURE

THAT

NPDES

PERMITS

AND 401

CERTIFICATIONS MAINTAIN WATER QUALITY.

The parties that are participating in this proceeding agree on much. Still, there are a number

ofissues that must be addressed by the Board.

The Board Should Not Fashion a “Significance” Threshold

or Create a “De Minimis” Exemption from Review

Much of the testimony in

the hearings held in

these proceedings has related to the general

issue ofhow to address relatively minor increases in pollution loadings to waters that have better

waterquality than the bare minimum, the TierII protections.“It has beensuggested that very small

“Significance” should not be an issue at all as to

protection ofexisting uses. New

pollution that harms existing uses obviously can never be allowed as insignificant or de minimis.

increased

loadings

not

really

qualify as

“degradation.”2

has also

been

suggested

that

analysis ofalternatives to allowing new pollution or ofthe importance of the proposed activity for

economic or social

development

is not called

for as to

“insignificant” pollution

increases.

Very

similarly,

has

been

proposed

that

exemption

from

having

antidegradation

demonstration should be

allowed for “de minimis” new pollution.

The Environmental Groups believe

that basically all NPDES

permits or 401

certifications

allowing

for new or increased loadings should be subject to at leastsome antidegradation review.’3

All new loadings constitute degradation and are significant.

Further, the Board should not attempt

carve out any exception from antidegradation analysis for “minor” or “de minimis” degradation.

Alternatives always

should be

at least briefly considered and the economic and social value ofthe

activity for which the new pollution is neededshould be confirmed, although in manycases this will

be obvious.

‘~

However, thedifferences betweenthe parties to theseproceedings shouldnc tbe exaggerated.

No one claims that small non-toxic increases in loadings should be treated in the same manner as

largeorhighly toxic increases. The issue is whether sometypes ofdegradation areso small that they

‘2As a matter oflaw, any detectable increase in pollutants constitutes degradation.

Columbus &

Franklin County Metropolitan Park District

v. Shank, 65 Ohio St.

86, 600 N.E.2d

1042,

1055

(Ohio 1992).

‘~

The Environmental Groups do not object to the Agency’s proposed subsections

302.105 (d) (2) through (5) and have only a clarifying word change proposal for 302.105(d)(l).

The activities specified as not being subject to antidegradation review by (d)(3) and (d)(4) are

given stringent review under otherprovisions oflaw.

The activities specified as not subject to

review by proposed 302.105(d)(1), (2) and (5) inherently have only very temporary effects.

‘4The Environmental Groups do not object to

the listing ofbenefits that might be used to

justify necessary degradation listed in proposed 354.103(c)(2)-(4).

Proposed 354.103(c)(1)

lists

as a “benefit” a change that may or may not be beneficial depending on the particular

circumstances ofthe unsewered community and the proposed centralized system.

should be allowed without considering alternatives at all, without considering whetherthe social or

economic development they promote is important, or given a complete pass

from antidegradation

review.

For the

following reasons,

the Board

should

not

attempt

fashion

any

“significance”

limitation or “de minimis” exception from the requirement ofat least some antidegradation review

before new loadings are permitted:

1. Every increase should be given at least some review.

Little pollution sources add up.

unnecessary pollution

should

allowed

the state’s waters.

“One

molecule of dioxin in

the

Mississippi River is significant if it

is avoidable at no cost.” (Frevert Testimony, Dec. 6, 2000, Tr.

124).

Put

another way, the requirement that new pollution be allowed only if it is

necessary to

accommodate

important economic or social development means that pollution prevention must be

considered before new pollution

allowed.

Numerous state laws and Board

decisions strongly

support broad pollution prevention programs. E.g.

415 ILCS

85/1 et seq.; 415

ILCS

115/1

et seq.;

In Matter of Proposed Amendments to

Ill.

Adm.

Code

Subtitle

92-8

(April

1996) p.6

(“Pollution prevention is undisputably one ofthe essential elements in maintaining environmental

quality”).

Illinois waters certainly are deserving of suchpollution prevention efforts.

There

reason

under

the proposed regulatory

scheme to

exempt

any

permits

for

increases in pollution

from receiving some level ofreview.

It has been argued that a good reason

not to require an antidegradation demonstration for a permitting decision involving a small new

that such an

analysis will cost the Agency and the discharger much time and money.

Under some

state antidegradation

schemes it might well be the case that

every antidegradation

analysis involves great cost and

expense, but that

not the sort ofsystem that

is being proposed

here.

The Agency’s proposal does not contain

exemptions

for small

or insignificant increases in

pollution,

but

also

contains very

little

the way of minimum procedures for conducting

the

antidegradation analyses.

The cost for many antidegradation analyses will

be insignificant.

The Agency has decided to

opt for flexibility that shapes every antidegradation analysis to

the particular facts instead oftrying to set down in advance rules that would describe the extent of

analysis needed.

While refusing to say that certain activities would be exempt from antidegradation

analysis under the proposed standards and rules, Mr. Frevert repeatedly testified that the activities

might get only a very abbreviated analysis. (Frevert Testimony Nov.17, 2000,

Tr. 6 1-2, 73, 79-80,

99,

110-11, 127-28)

The level of antidegradation demonstration required under the proposal will

“vary

from

case

case.” (Tr.

72)

“We have got a sliding scale here

that

intends

target our

resources and your resources where the significanceof thedecision was more apparent and back off

those cases where we know the relative significance still

warrants some review, but it warrants

a lesser review.” (Tr. 73-4)

In some cases, the antidegradation demonstration will consist ofa few

minutes consideration of the proposed new loading by the Agency followed

by the creation of a

document by the Agency describing its reasoning forthe public. (Frevert Testimony, Nov. 17 2000,

Tr.99,

118,

128,

197,Dec.6,2000Tr.

145)

Frankly,

the

Environmental

Groups

have

considerable

misgivings

about

the

lack of

minimum procedural safeguards prescribed by the draft rules.

Should not the standards or rules

require a bioassay ofthe receiving water always before new pollution is allowed?

Should it not be

explicitly required that antidegradation analyses cost out all possible alternatives to make sure that

there areno feasible alternatives to allowing the level ofnew pollution requested?

Should not rules

require a signed certification from a environmental professional attesting to all ofthe facts relevant

to the antidegradation demonstration? Antidegradation demonstrations formajornew facilities, for

toxic, endocrine disruptingor bio- accumulative pollution, and fornew pollution going into streams

containing rare species definitely should include such procedures and safeguards, as well as others.

There is

a serious danger under these proposed regulations that the Agency will give quick

and

dirty

treatment

cases

that

require

full

demonstration by

the

applicant.

Indeed,

the

Environmental

Groups

submit

that it

much more

likely that the Agency will give abbreviated

treatment to some significant new loadings orhydrological modifications than that the Agency will

subject permit applicants to serious delay or cost who are seeking permission for tiny increases in

loadings ofpollutants.

Nonetheless,we are willing to try fornow the “case by case” approach being

proposed by the Agency, recognizing that the other side of having some antidegradation analysis

given to

all degradation is that there is

only a very low minimum

level of analysis that

always

required.

3. Thereis no good wayto define “significance” orcarve out a de minimis exemption.

The

Agency’s flexibleapproach oftreating eachcase ofdegradation on a case by casebasis would make

less

sense if there were

an easy way to

determine in advance what cases are most important and

most worthy ofa more detailed antidegradation analysis.

There is not.

Most ofthe de minimis tests that have been suggested allow degradation freely if it

is no

more than a certain percentage ofthe remaining assimilation capacity.

For example, if the water

quality standard for a particular pollutant X is

units/liter and the current level

in the water is

units per liter,

8 units per liter ofassimilation capacity remain.

Parties who argue for a de minimis

test of10

ofremainingcapacity askthat an Applicant A seeking a permit that would load thewater

up to

additional units of X per liter should not

have to

do an antidegradation demonstration.

a permit giving .8

is granted, another new loading that would cause the stream to be degraded up to

.72

units per liter could be

permitted without an antidegradation demonstration.

There

are

large number of reasons why any such proposal

should

rejected.

First,

unnecessary degradation should not be allowed simply-because--it is coming in relatively small steps.

Further,

the mere fact that

Applicant A asked

first to

use this

assimilative capacity is no reason to

think that A needs

it or that A’s

activity has any economic or social value.

By giving A this

for

nothing, less capacity remains for an Applicant

B who might actually need it and whose activities

might be very important for the community.

Further, Applicant A cankeep increasing its discharge

by 10

oftheremaining assimilation capacity asoften as it can applyfora new permit modification.

By allowing Applicant A to take numerous bites, water quality can be degraded to the point that it

is just barely meeting standards and existing

uses are threatened, without Applicant

A ever being

required

to do an antidegradation demonstration.

A slightly more sophisticated exemption could be written that limits use ofthe percentage

allowanceto increases under a certain fraction ofthetotal-assimilation-capacity.

Forexample, a state

might allow degradation, without a demonstration ofneed, up to

of the assimilation capacity

as long as 30

ofthe

total capacity remains.

To use the previous

example, applicants would be

allowed to grab portions ofthe remaining assimilation capacity in

increments up to the point

that

the water has

7 units of X per

liter.

This

more sophisticated proposal

is less

horrible than

allowing everything to be eaten in small bites. At least something is saved forpollution that is really

necessary.

But why should the public give any ofits scarce resource, clean water, to someone who

has not shown that the public will benefit?

Moreover,

focusing on assimilation

capacity introduces other problems for environmental

policy and fairness and encourages unnecessary and dangerous discharges into large waterbodies.

Allowing

unnecessary

discharge of 10

(or even

of the assimilation

capacity of the

Mississippi River would allow a huge unnecessary new discharge ofmany pollutants.

Also, what

should be done regardingpersistent pollutants, bioaccumulative pollutants, andpollutants for which

there are no numeric standards but there exists credible evidence that they disrupt hormones or are

otherwise harmful to human or aquatic life?

Practical

considerations

not

support

requiring

determination

of significance

establishing a de minimis exemption

It has been argued that minor increased loadings should not

subjected

antidegradation analysis due to practical considerations.

But allowing

totally

unjustified newpollution up to some arbitrarily drawn level is a not good for the environment, state

government, or even for many dischargers.

A limitation orexceptionfrom the antidegradation demonstration requirement:doesnot help

the Agency or applicants at all if it is as hard to

determine whether something is “insignificant” or

fits into an exemption, as it is to do an antidegradation demonstration. (FrevertTestimony, Nov.

17,

2000, Tr.

82-3, 133) A proper analysis ofwhether something is significant or de minimis involves

gauging at least seven factors:

the assimilation capacity ofthe stream that will be removedby the proposed new pollution

the assimilation capacity of the stream that will remain if the new pollution is allowed

the total amount ofthe discharge

the sensitivity and rarity of the aquatic species that might be affected

the toxicity and scientific uncertainly associated with the pollutants involved

the likelihood that others will need to use the requested assimilation capacity and

the ease with which potential alternatives might be

identified.’5

It is as easy to perform and document a simple antidegradation analysis as it is to weigh these factors

and document a decision that the new loading

is insignificant.

American Bottoms, through

its expert, Robin L.

Garibay, REM, testified in the December

hearing

that

not

difficult

fashion

significance test

or de

minimis

exemption

that

convenient and easy to apply.

American Bottoms correctly points out that the Agency already must

calculate the “reasonable potential to exceed” water quality standards as part ofpermitting.’6

From

this calculation,

American Bottoms claims that the Agency can easily determine the percentage of

the remaining assimilation capacity that the applicant seeks to use.

In American Bottom’s view, if

the Board adopts a significance test or de minimis exception that simply focuses on percentage of

assimilation

capacity requested, the

Agency

and

permit

applicants

will

have

simple

way

avoiding having to

do many antidegradation demonstrations.

The Environmental Groups agree that the type oftestproposed by American Bottoms is not

impossible to apply.’7

Infact, it is far too simple.

It is so simple it allows gaming the system, treats

‘5Most ofthese factors were discussed by Mr. Frevert. (Nov.

17, 2000, Tr. 73,

76-77)

‘6The Agency has no published procedures for conducting these types ofanalyses

although they are needed.

See, 40

CFR

1 22.44(d)(I)(ii), (iii), (v) and (vi).

‘7It is not in practice nearly as simple

as was suggested.

Inpractice, determining the

“reasonable potential to exceed” requires extrapolation from inadequate data and application ofa

lot ofassumptions.

Because ofthe scarcity ofambient water quality monitoring sites, Illinois

permit writers often find it necessary to guess at critical background conditions based on

monitoring sites that are many miles upstream ofthe proposed discharge and may even be on a

different stream. (Ex.

Assumptions are made about stream and effluent flows.

Moreover,

many

Illinois water quality standards simply are not protective.

Estimates of assimilation

capacity are worthless if they are based on water quality standards that are far less protective than

that

recommended by the federal criteria.

all

waters

alike

matter what

rare or sensitive

species are

them,

ignores

the persistence or

scientifically uncertain natureofpollutants,treats conventional and bioaccumulative pollutants alike~,

overly relies on the protectiveness of the water quality standards, ignores other potential demands

on the remainingcapacity, and allows huge newdischarges without any showing-ofnecessityas long

as the discharger can find a big enough water in

which to dump its waste waster.

The example given ofhow a de

minimis exemption can work actually shows why no such

exemption should be accepted.

In her testimony, Ms. Garibay discussed a project she worked on in

Indiana:

Knowing

that

the

antidegradation

demonstration

process

can

cumbersome,

time-consuming,

and

importantly

for

Ms.

Garibay’s client

unpredictable in outcome, part ofthe overall project

was

manage

the

wastewater to

assure

that

the effluent

quality

would be at levels below the well-defined de minimis concept in this

state.

An assessment ofthe proposed loading increased to show that

the impact on

the receiving stream would be below ten percent of

the

unused

capacity

was

presented

the

State

Environmental

Agency,

and

it was

presented as

part of the

permit

modification

application.

So theproject was engineeredto assure that the disch-argelevelwould

be less than six parts per billion for lead.

This was not the most cost

effective way

for the

facility

manage

their wastewater,

but

managing their wastewaterthis way theyknew that theywere going

to have a de minimis

they would fit the definition ofde minimis

and

the project could move

forward in a

timely

fashion.

(Dec.

2000,Tr.

101-02)

The Environmental Groups have no knowledge ofthis- particular project and have no reason

doubt

that

Ms.

Garibay

did

what

was

best

under

the circumstances.

However,

the

sort of

regulatory system and engineeringdesigned to fit into-an-arbitrary legal- exemptioftdescribed by Ms.

Garibay

exactly what

the Board

should

eschew.

Illinois

should

not

create a

process that

unnecessarily “cumbersome”, “time-consuming,”or“unpredictable”and then attempt to offset those

flaws through creation ofarbitrary exceptions that can be exploited by those with clever engineers.

Fortunately, there is nothing in theAgency’s proposal that would necessarily make Illinois’

system operate in

a cumbersome or unpredictable manner.

More critically, the Board should not

write definitions or exceptions into the

rules which encourage applicants to engineer their projects

to avoid an antidegradation analysis.

Again, we do not know what actuallyhappened orshould have

happened in

the project to

which Ms.

Garibay refers.

Still, her description

could well describe an

instance where an applicant sacrificed using the most cost-effective way ofhandling its

waste and

otherwise skewed its engineering in order to

fit

into an arbitrary exemption.

The applicant may

thereby have been allowed to create pollution that would have been avoided had alternatives been

considered.

It is also entirely possible that additional air pollution or solid waste will be created by

engineering to fit into an arbitrarily drawn de minimis exception.

This is the very opposite of what

sound pollution prevention promotes.

Theboard must exercise great carebefore adopting antidegradationprovisions from other

states

and regions.

Various examples ofregulations from other states (Hearing Exhibits 20-22)

have been submitted to the Board that contain various significance tests or de minimis exemptions.

It has been suggested that Illinois should adopt exceptions from other states and that, if those states

were approved by U.S. EPA, U.S. EPA might approve broad exceptions in Illinois rules.’8

‘8The U.S.

EPA Region VIII Guidance, Antidegradation Implementation, has also been

presented. (Hearing Exhibit

This guidance indicates that

some sort of“significance”provision

in a state antidegradation rule would be acceptable to U.S. EPA, at least in Region

But the

threshold in the Region VIII Guidance for significance is low (less than

ofassimilation

capacity) and the Guidance provides that some antidegradation analysis ofalternatives should be

done

even for degradations found to be insignificant. (Hearing Exhibit.

18)

This line ofargument should be approached with great caution by the Board.

First, we trust

that the Board is trying to do what is best for Illinois and its environment, rather thantrying to create

the weakest program that U.S.

EPA can tolerate.

Second,

portions of rules

from

other states

should

not be

adopted without looking at the

overall programs established by the rules.

A state that requires that elaborate showings be made for

every

antidegradation demonstration that

required needs

exceptions

much more than Illinois

should need under its

flexible “case by case,” “sliding scale” approach.

Finally,

clear

that

providing

broad

exceptions

from

antidegradation

demonstration

requirements is one ofthe ways that a state policy can run afoul of U.

EPA.

One ofthe sets of

rules that was presented to

the Board was those of WestVirginia. (Hearing Exhibit 22)

We do not

know the details ofwhat U.S. EPA found objectionable in the West Virginia rules but it is known

that a.letter was sent by Region III ofU.S. EPA to the West Virginia Environmental Quality Board

rejecting West Virginia’s proposed procedures because oftheir “unduly narrow scope of Tier II

review, multiple exemptions to such review,

and the failure to achieve the ‘highest statutory and

regulatory’ reqUirements for all sources.” (Ex.

The Occasions on which an Antidegradation Demonstration Is Required

There has been concern expressed regardingthe possibility that an antidegradation analysis

might be required every time a discharger’s loading increases even though the increase is covered

by an existing permit.

For example, it is feared that a dischargerthat has a permit to discharge 1000

lbs. per day ofa pollutant but that has not dischargedmore than 500 lbs per day during the first year

ofits permit, might be required to demonstrate a need to discharge 900 lbs per day before it may use

its

permit to do so.

But no

one has argued

that an antidegradation analysis is needed on every occasion that a

discharger wishes to

discharge more than it did

during

some previous

period.

NPDES

permits

generally last

five years and normally the discharger may discharge the full amount that its permit

allows during the life of the permit,

subject to

the permit conditions and

the general rules

against

causing a violation of water quality standards.’9

An interesting

issue

that has not been discussed is

what shOuld be done regarding permit

renewals that do

not

propose new loadings.

Most current NPDES

permits

were

issued

without

anything

like a proper antidegradation demonstration although all permits for new loadings issued

since November 28,

1975

should have

had

one.

(See USEPA

Handbook 4-1, 4-3)

Moreover,

permit

pollute,

even issued

after a proper antidegradation demonstration has been performed,

does

not

give the permittee

property right

use of the receiving water any more than being

allowed to

camp in

a state park gives

the camper a right to

permanently settle at the campsite.

See

CFR

122.5(b).

The fact that a permit was necessary to accommodate

social or economic development for

one

permit

period

does not

necessarily

mean

that

necessary

for the next

permit

period.

Technology

may

have

changed

make

the

permitted

discharge

less

necessary.

Also,

the

opportunity cost of allowing

the discharger to use the assimilation capacity may have increased

because, for example, another party that would create far more social or economic benefit needs to

‘9However, two significant points regarding permitting emerge from the fact that a permit

holder can discharge the full amount

allowed by its permit without further public consideration.

First, the Agency must be careful to attach loading limits to all pollutants that will be discharged.

Second, the Agency, the Board and the public must assume that the discharger will discharge as

much as the permit allows.

It is no excuse for an inadequately restricted permit that the

discharger will probably not discharge as much as is permitted.

useit.

Finally, itshould be kept in mindthat the nation is trying to eliminate discharges ofpollutants

into the nation’s waters (33 USC

§1251(a)(l)),

not permanently license them.

For

the time

being

given

available

resources,

the answer

as to

renewals

probably

presume that any prior antidegradation analysis that has been done is still applicable in the absence

ofinformation that it has become outdated.

However, the Agency, other dischargers who want to

use the assimilative capacity, and members ofthe public should be allowed to raise the need for a

new antidegradation analysis as part of the renewal process.

The Application and Supporting Data to be Required ofPermit Applicants

There has also been much concern expressed by representatives ofthe regulated community

that they will be

forced to obtain much new information to even apply for a permit for a new or

increased

discharge.

These

concerns

are largely

directed

at the

draft

Agency

implementation

procedures (Part 354), which the Board may decide not

to address.

First, the Environmental Groups believe strongly that the draft implementation procedures

are correct in generally requiring some research into the biological resources ofthe water to receive

the new or increased discharge. To protect resident species, it is necessary in the case of each new

or expanded discharge to

consider whether the specific discharge proposed will affect an existing

use. While shortcuts will be possible in cases where there havebeen recent studies ofthe receiving

water by a state agency orotherqualified body, consideration ofpossible effects on resident species

will oftenrequire a new survey ofwhat is living in the receivingwaters.2°Protectionofexisting uses

20.

It is not enough to rely on a grading ofthe receiving water made using the biological

stream classification system described in Hearing Exhibit 15.

The fact that the stream as a whole

only rates a “C” grade does not prove that the area to receive the new discharge does not contain

valuable fish ormussels or other existing uses that must be protected.

will often also require a chemical-by-chemical and whole effluent toxicity analysis ofthe effects of

the proposed discharge.

However, none of the

forgoing

means that

all

applicants for increased discharges will be

required to conduct expensivestudies or prepare needless lengthy reports.

Applicants are allowed

talk

the

Agency

learn

what,

if any,

new

information

necessary.

Indeed

they

are

encouraged to do so. See proposed 354.104(a).

TheAgency is not going to requirepermit applicants

to collect data or information that the Agency already has (Frevert Testimony, Nov.

17,

2000,

Tr.

62,

72,

99,

155,

195) although the Agency will present the essential facts on which it relied in its

written antidegradation analysis. See proposed 354.l04(b)(2).

Further,

it should be mentioned that

the Illinois

Department of Natural Resources has an

important role to

play in the implementation of proper antidegradation rules.

IDNR is statutorily

requiredto review permits fortheirpotential effect on state endangered speciesand possesses much

ofthe biological expertise in the state.

The appropriate officials at IDNR should also review draft

NPDES permits and 401 certifications to assurethat resident species arenot being overlookedin the

analysis

and

that

the

potential

the

proposed

discharge

harm

resident

species

fully

considered.22

The final implementation procedures must clearly write IDNR into the process.

Copies of

applications for permits for new pollution should be sent to IDNR.

Any studies ofthe draft permit

created by IDNR should be made available to

the public during the public review period.

21Such as those that some would impose on citizen groups seeking ORW designations.

22IDNR is already performing such reviews although its responsibilities in this regard

have not been explicitly recognized in the rules.

IDNR’s role should be set forth in the rules

although it is, of course, IEPA’s responsibility to

decide whether to issue the permit (subject to

IPCB

review).

The Board Should Eliminate or Limit the Exception for General Permits

General permits pose a special

problem for antidegradation policy. This problem could be

addressed by the Board in this proceeding by

striking the Agency’s proposed exemption for general

permits (proposed 302.l05(d)(6))

or by

limiting the Agency’s proposed exemption to

assure that

particularly biologically significant waters, including waters harboring rare orsensitive species, are

not affected.

The Board might also order the reopening ofthe existing general permits based on the

changes to water quality standards that will be effectedby the Board through this proceeding or open

a subdocket that would address general permits.

The

Environmental

Groups

acknowledge

that

use of general

permits

significant

administrative convenience for the Agency.

They may be a bittoo convenient.

The public receives

no notice of activities taking place under a general permit. (McSwiggen Testimony, Nov.

17, 2000,

Tr.

184) The level ofoversight exercised

by the Agency

over general permits and

enforcement of

general

permit conditions appears to

be very

limited.23

At the same time, the

types ofpollution

covered by general permits, including industrial storm water(Hearing Exhibit 8),construction run-

off(Hearing Exhibit 9) and sewerage effluent discharge from lagoons (Hearing Ex.

11) clearly can

have a very serious effect on the health on many ofthe Nation’s waters. See, Federal Register Vol.

63,

No.

January

1998,

1536,

1539-41

(effects of industrial

and

construction storm

water

discussed).

23We have been told that

generally no one at the Agency reviews

the industrial or

construction storm water pollution prevention plans required by NPDES permits

ILROO and

ILRIO.

The Agency does not even receive a copy ofthe plans.

Enforcement of the other

conditions in the general permits cannot be sufficient given the Agency’s limited resources

allocated for this purpose.

Three ofthe fourgeneral permits that havebeen issued are not due to expire until 2003.

The

Agency’s assurance that it will probably not

allow use ofa general permit where it might affect

water designated

as an Outstanding Resource Water (Frevert Testimony, Nov.

17, 2000, Tr.

188)

is of little comfort given that no such waters have yet been designated.

Further, while something

vaguelyakin to some antidegradationprinciples may havebeenapplied genericallywhen the current

general permits were written in

1997 and

1998, the Agency and the public certainly did not givethe

problem the amount of thought warranted.

In some

cases, particularly

for activities near streams

containing endangered orsensitive species, much stronger controlsagainst pollution areneededthan

are generally required by the conditions in the current general permits.

a minimum, proposed section 302.l05(d)(6)

should be revised to make

clear that the

Agency should authorizeno general permits fordischargesto waters that are particularly biologically

significant.

IDNR may be able to

quickly identify most waters for which this limitation on the use

ofgeneral permits should apply.

Citizens

Seeking Outstanding National Resource

Water ‘Designations Should not be Burdened Unduly

Another group ofissues

to be resolved by the Board relates to designation of “Outstanding

National Resource Waters”

or, using

the IEPA’s proposed terminology, “Outstanding Resource

Waters” (“ORWs”).24

These issues principallyrelate to the cost ofgiving notice and the burdens to

be placed

on petitioners for an

ORW designation.

24The Agency feels it should not use the word “National” as to a designation made by the

state.

Perhaps the Agency is correct that the term selected by U.S. EPA in 40 CFR 131.12(a)(3)

was ill chosen.

Nonetheless, there seems some benefit to

using the U.S.

EPA terminology to aid

understanding the purpose ofthe Illinois category.

The

Environmental

Groups

believe

that

they

should

not

held

notice

proof

requirements in

seeking to protect water quality that are not applied to persons-seeking to

degrade

it.

While we haveno objection to providing reasonable notice ofORW petitions, citizens should not

be asked to send out huge numbers ofbulky petitions to large numbers ofpeople and entities.

Some

of the persons

whom notice

is to

given under the proposed rules

will be very hard even to

identify.

Similarly, while citizens can

asked

state the likely

economic effects of a proposed

designation based on what they can easily learn of development plans, they cannot reasonably be

asked

read

the minds of potential

developers or produce a

Peat Marwick

study

proving

the

economic advantages of the

designation.25

Petitioners for ORW

designations

should

show

the

designation

is justified.

If reasonable

notice

of a proposed designation

given,

persons with

development plans can be expected to

let the Board know of any adverse effects of the designation

their economic prospects.

No Special Interest Exemption Should Be Allowed for the Mining Industry

Thespecial treatment in complying with waterquality standards affo’rdedthe-miniiig-industry

by Subpart B ofTitle 406

is illegal or chimerical depending on how Subpart B is interpreted.

The

federal regulations, directing that state water quality standards

must be based

on sound scientific

rationale and must contain sufficient parametersto protect uses(40CFR

131.11(a)), do not contain

any proviso

allowing mine discharges to

endanger indigenous species or other existing uses.

251f the regulated community believes people who want to withdraw assimilation capacity

from future use should prove that no other person will want to use it, that should be part ofevery

Tier II antidegradation demonstration.

Every NPDES permit eliminates loading capacity that

someone might conceivably want to

use.

subpart B is construed to

grant any measure ofexemption to the mining industry from

compliance

with protective water quality standards, it is illegal.

Specifically regarding antidegradation, the federal antidegradation policy, 40 CFR

131.12,

does not contain any special provision exempting mining operations from antidegradation review.

Ill. Adm. Code 406.203(c), however, can be misread to allow a mining operation to demonstrate

no adverse impact to receiving waters (i.e. no degradation) by showing that the mine discharge will

have concentrations of sulfate and

chloride

lower than

3500

mg!L and

1000

mg/L respectively

although thesenumbers greatly exceed thegeneral Illinois waterquality standards 35 Ill. Adm. Code

302.208 (g) (500 mgIL for both).

Subpart B oftitle406 is probably morepointlessthan illegal.

Subpart B should be construed

give mining operations

little or no

special

status

as to

antidegradation or other water quality

standards.

Below the language in part406 that seems to givethe mining industry special favors, the

regulationgoverning discharges from mines requiresthat IEPAassurethat there is “no adverse effect

on the environment in and around the receiving stream,” (406.203(e)(1)). The rules also requirethat

an operator utilize

good mining practice designed

“minimize” discharges oflisted pollutants.

(406.204).

Theseprovisions require application ofantidegradation principles to mining operations.

Clarity

requires

that

the Board

rule that

mining

operations must

comply

with

Illinois’

antidegradation policy. Unless the special provisions that can be read to

favor mine operators are

eliminated, Illinois’ antidegradation policy will not be sound or in compliance with federal law.

The Board and the draft Agency Implementation Procedures (Part 354)

Illinois law

divides authority for enacting environmental regulations betweenthe Board and

the Agency.

See,

Granite

City

Steel

Division of National

Steel

Co.

Illinois

Pollution

Control

Board,

155

Ill.2d

149,

613

N.E.

719

(1993);

see

also,

Permitting

Procedures

for

the

Lake

Michigan Basin:35

Ill. Adm.

Code 301,

302

and 309.141

(March 4,

1999) R99-8.

Unfortunately,

the line between a standard or rules to be enacted by the Board and a procedural regulation that may

be adopted by the Agency has not always been clear.

also

unclear

what the Board

should

regarding the

draft Agency

implementation

procedures

(Part

354)

this

proceeding.

The Environmental

Groups

not

disagree with

the

Agency’s implicit

decision

as to

what

should

considered by

the Board

and

what

should

published as an Agencyregulation. Perhaps, however, the Board should generallyaddress any major

issues it finds that relate to

the draft procedures to

give guidance to the Agency in its rule making.

In any event, given that other parties have addressed the draft procedures and the Board has at least

on one occasion adopted proposed procedures as Board rules (see Permitting Procedures for Lake

Michigan R99-8), the Environmental Groups will address some of the issues relating to the draft

Agency procedures. (see

IV(E) below).

IV.

Proposed

Changes to the IEPA Proposals

The Environmental Groups joining in this memorandum are generally supportive of

the

IEPA proposal

the Board.

We do,

however,

have a

few substantive disagreements with

the

proposal and a numberofsuggestions to clarify orstrengthen someofthe languageofthe proposal.27

26It

is clear that Agency implementation procedures

may change the practical effect ofa

Board standard.

For example, if the Board adopts a numeric water quality standard but Agency

permitting procedures make it impossible to write enforceable permit limits based on the

standard, the Board standard loses its practical effect.

27Appendix A to this

Supplemental Testimony and Memorandum ofLaw

shows the

exact

changes proposed by the Environmental Groups to the Agency’s proposal to the Board.

Proposed changes to the draft implementation procedures, which are not formally before the

Board, are contained in IV(E) below but are not contained in Appendix A.

Proposals for Improvements

to 302.105

302.105

Statement ofPurpose

A change is proposed to state the purpose more precisely

by mentioning protection of existing uses and

maintaining waters with

quality that

is better than

water quality standards.

302.l05(a)(2)

The

words

“whose

presence

necessary

sustain

commercial

recreational development” should

be stricken.

This language could be misread to imply that only

species

falling in

this

limited category

are worthy of full protection.

Further, examples ofexisting uses including drinking water and recreational uses would be

helpful to show more fully of what must be protected.

302.105(b)

Title

of the

Subsection

Insert

“National”

between

“Outstanding”

and

“Resource.”

While this

not a major issue,

there would be some benefit

in adopting the federal

terminology of40 CFR 131.1 2(a)(3) which uses the term “Outstanding National Resource Water.”

Corresponding changes

are proposed throughout the proposal.

302.105(c)

Title of Subsection

The title “High

Quality Water” should be replaced with

“Waters with Water Quality that

Better than the Standard.”

Because ofthe misnomer involved

in discussing waters to which this section applies as “high quality”(seeI.B.2 above), it is best to use

a more accurate title for the subsection.

302.105

(c)(I)

Replace “exceed” with “is

better than any of the.”

This

eliminates

the

ambiguity created by use of the word “exceed.”

In this

case, it is proposed

diverge from the

federal language because the federal language is seriously flawed.

“Exceed”in one sense means “betterthan” and that is, ofcourse, what is intended.

However,

there is an ambiguity in using “exceed” because “exceed” in the quantitative sense generallymeans

“greater than.”

For most water quality parameters, to have a number that

is greater than a standard

is to

violate the standard.

Addition ofthe words “any of the” is proposed to

make more clear that a water failing

meet one or more water quality parameters is protected as to other parameters.

302.

l05(c)(2)

This might be corrected to state that “any increase in a pollutant loading that

has occurred since November 1975” must be assessed.

Language is also suggested to make clearer

that

an assessment will only take place in connection with a permitting decision.

Reference should also be made to hydrological modifications.

Flow changes can seriously

affect water quality (see Frevert Testimony, Nov.

17, 2000, Tr.

156;

N.L, Poffand J.D. Alan, The

Natural Flow Regime: A Paradigm for River Conservation and Restoration, Bioscience, 47:769-84

(1997)). Disturbances ofnatural conditions should be minimizecL. Accordingly, the Environmental

Groups believe that the opening clause of 302.105(c)(2) should

state:

Any proposed increase in pollutant loading or disturbance ofnatural

conditions, not been previously authorized by

a NPDES

permit or

CWA section 401

certification, must be assessed pursuant to

Ill,

Adm. Code Part 354 to determine compliance with this section prior

issuance ofa NPDES permit or401

certification.

302.105

(c)(2)(B)(iii)

To incorporate the concept ofavoiding hydrological modifications

that

disturb

natural

flow

and

other natural

conditions,

the

words

“and

disruption

of natural

conditions” should be added after “proposed load increase.”

302.105 (c)(2)(C)

a new subsection C is proposed to allow such loadings to be reassessed

when there is reason

to believe that the original assessment is no

longer

relevant.

The proposed

language states:

An assessment may be required

in connection with the renewal ofa

existing permit for a loading or disturbance ofnatural

hydrological

conditions that hasbeenauthorized sinceNovember28, 1975,

1fthere

good

reason

believe

that

the discharge

or disturbance

longer

necessary

accommodate

important

economic

social

activity.

302.l05(d)(l)

The phrase “not affecting existing uses” should be added to this provision

to make clear that temporary loweringof waterquality that affects existing uses cannot be tolerated.

Although this result

follows under other water quality standards, clarity

is added and no harm done

by repeating this language here.

302.105

(d)(6).

This

subsection language,

which

exempts discharges permitted under a

general

permit

from

making

a facility-specific

antidegradation review, should

be stricken.

minimum, the Board should add

language to the end ofthe section which states:

however the Agency shall assure that individual permits are required

of all new loadings or hydrological modifications subject to NPDES

permitting or 401

certification that may affect waters of particular

biological significance, including waters containing rare or pollution

intolerant species.

A list of such waters might be appended.

Alternatively the Board

should order that the existing general permits

all be reopened for

reconsideration in

light ofthe new antidegradation standard.

Proposals for Improvements to

Section 303.205

303.205

Introductory words

For the reasons raised by the Board in

its questions ofthe

Agency, see,

December 6, 2000,

Tr. 42-3, “uniquely high” should be replaced with “outstanding.”

At least some of the dictionary definitions of“unique” are

far too restrictive.

303.205

(b).

This

section which

states

that

zero

7Q10

streams

will

generally

not

considered for ORW status,

should be

deleted.

It is

not uncommon for streams that occasionally

have no flow

be rich in rare biological life and many such streams support recreational activities

such as birding, hiking and other activities.

Proposals

for Section

106

106.992

This proposed provision provides for filing a petition to create (orrepeal) an ORW,

and requires that extremely broad notice be given.

For petitioners seeking to give ORW protection

-be required to

givethe petition to IEPA and

IDNR in addition to the Board is acceptable.

Giving

notice to

other state and local officials and

current NPDES permit holders who discharge into the

water to be designated is also tolerable as long

as IEPA can identify them for the petitioners and it

not necessary to

send the whole petition.

The requirement proposed by the Agency is to

give notice

to NPDES

permit

applicants,

Section

404

permit

applicants

and

“to

other

persons

required

law”

unreasonable.

Petitioners will not generallyknow who all these people areand IEPAdoes not even appear to know

who some ofthese persons might be.

Further,

it appears that this “other persons” language was

simply copied

from other provisions

without consideration as to

whether there are such “other

persons” in this

case.(see Frevert Testimony, Nov.

17, 2000, Tr.

147)28

On the other hand,

a requirement should be added that parties seeking to

repeal an ORW

designation should attempt to give notice to the persons who petitioned for the designation.

106.994 (e)

requires petitioners to produce unreasonable amountsofeconomicinformation

to which they will have little access.

Much ofthe proposed subsection should simply be stricken.

Proposal to Amend Existing 35

Ill. Adm Code 406 Suboart B

28Ifthere really are other persons that the law requires be notified ofan ORW petition,

they should be listed

in the regulations so that petitioners for designations can know who they are

and give them notice.

Subpart

should

probably

repealed

its

entirety

the Board as soon

as possible.

However, for the present proceeding it is sufficient to add a new third sentence to 35 Ill. Adm.

Code

406.203(b) that

states:

However,

case

shall

permit

applicant

exempted

from

complying

with the antidegradation

standards of35

Ill.

Adm Code

302. 105.

Proposals for Improvements to

the Agency Implementation Rules

Section 354.102

An additional clause in this

procedure should state:

An assessment may be required in connection with the renewal ofa

existing permit

for loadings or disturbances ofnatural hydrological

conditions

that have been authorized since November 28,

1975,

there is good reason to believe that the discharge or modification is

longer necessary to

accommodate important economic or social

activity.

Section

354.103

The

permit

applicant

will

required

provide

the

Agency

with

information on the physical, biological, and chemical- condition ofthe waters in question.

Although

we believe that the rule provides forthis, for clarification purposes, the rule should make clear that

the Agency has the authority to

require the applicant to

collect additional data if adequate data do

not exist.

For example, if a new discharge was proposed on a water body where no data has ever

been

collected

mussel

populations,

but

rare

mussels

are known

exist elsewhere

in the

watershed, the Agency should require additional data to be collected.

Subsection 354.103(c)(1)

should be stricken.

Provision ofcentralized sewerage service is

not

a benefit if such

service will

promote pollution or sprawl and

quality

sceptic

treatment

required.

This

section

should

also

provide that

copy of the application

will

delivered

the

appropriate office ofthe Illinois Department of Natural Resources.

Section

354.104

The rule should clearly state that other agencies will have input into the

demonstration review. In determining theexistence ofexisting uses orimpacts to existing uses other

agencies

may

able

provide information

and

expertise

unavailable

within the Agency.

addition to

IDNR,

local park districts may be able

to provide information on existing recreational

uses of waters.

Section 354.105

Paragraph (b) should be changed to, “Identification ofthe affected water

segment, any downstream water segment also expected to

experience a lowering of water quality,

characterization

the

designated

and

cuiiei1t

existing

uses

the

affected

segments

and

identification of which uses are most sensitive to the proposed load increase...”

This

change

will

make

354.105

consistent

with

Part

302

and

with

the

intent

of the

antidegradation policy to

protect existing

uses.

354.1 04(a)(2)

provides for disappointed permit

applicants to take an immediate review.

is unclear how citizens could get involved in the process if they agree that the permit should be

denied.

Procedures

are not

acceptable which have the

effect of allowing

only

the

polluter

participate in an appeal.

Some sort ofnotice to the public ofappeals should be required if the IPCB

rules do not already provide for such notice.

CONCLUSION

The Board

should adopt the antidegradation standards

proposed by

the Agency

with

the

changes presented and discussed in this memorandum.

The Board should also act to assure that the

Agency

implementation procedures that will be

adopted following this proceeding are consistent

with

the

standards

adopted by

the

Board

and

the

goal of the Clean Water

Act

maintain the

chemical, physical and biological

integrity of the nation’s waters.

Respectfully submitted,

F. Ettinger (ARPC

#3 125045)

Counsel for Environmental Law and Policy

Center,

Friends ofthe Fox River,

Prairie Rivers Network,

and Sierra

Club

Wacker Dr. Suite

1300

Chicago, Illinois 60601-2110

Jack Darn, Director

Illinois Chapter

Sierra Club

200 N. Michigan Ave. Suite 505

Chicago, Illinois, 60601

Robert Moore, Executive Director

Prairie Rivers Network

809 South Fifth Ave.

Champaign, Illinois

61820

Cynthia L.

Skrukrud, President

Friends ofthe Fox River

4209 W. Solon Rd.

Richmond, Illinois

60071

-‘NOIS

REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

Section 302.105

Antidegradation

The purpose of this

Section

to protect

existing

uses,

maintain

waters

with quality, better

than water

quality

standards

and

maintain

high

quality

waters

and-to--prevent unnecessary

deterioration ofwaters ofthe State.

Existing Uses

Uses

actually attained in the water body on or after November

28,

1975,

whether

or not they are included

in the water quality

standards,

must be

maintained

and

protected.

Examples of degradation

of existing uses

of the waters

of the

State

include but are not limited to:

action

that

would

result

the

deterioration

of the

existing

aquatic

community, such as a shift from a community ofpredominantly pollutant-

sensitive species to pollutant-tolerant species or a loss ofspecies diversity;

action that

would result

in a

loss of a resident

or indigenous

species.

whose

presence

necessary

sustain

commercial

recreational

activities.

action

that

would

endanger drinking

water supiilies

or threaten

uses such as recreational or commerical

fishing, swimming, paddling

or boating.

Outstanding Resource Waters

Waters

that

are

classified

Outstanding

National

Resource

Water

fQNRW) pursuant

Ill.

Adm.

Code

303.205

must not

lowered in

quality except as provided below:

activity

that

results

short-term,

temporary

(i.e.,

weeks

months) lowering ofwater quality; or

Existing

site

stormwater discharges

that

comply

with

applicable

federal

and

state storm water management regulations

and

not

result in a violation ofany water quality standards; and

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE

OF PROPOSED AMENDMENTS

The

prononent

any

activity

requiring

National

Pollutant

Discharge

Elimination

System

(NPDES)

Clean

Water

Act

(CWA) Section

401

certification must also

submit a demonstration

the

Agency

meeting the

requirements of subsections b(2)

and

c(2) ofthis Section.

Any activity listed

subsection

(b)(1) or proposed

increase

pollutant

loading must also meet the following requirements:

All existing uses ofthe water will be fully protected:

The

proposed

increase

pollutant

necessary

for

activity that will improve water quality in the ONRW; and

The

improvement

could not

practicably

achieved

without

the

proposed increase

in pollutant loading.

Any proposed increase

pollutant loading requiring an NPDES permit or

CWA 401

certification for

an ONRW must be

assessed pursuant

Ill. Adm.

Code Part 354 to determine compliance with this Section.

Waters

with

water

quality

that

better

than

the

StandardHigh

Oualitv

Waters

Except as

otherwise provided

subsection (d) of this

Section,

waters

the

State

whose

existing

quality

better

than

any

theexeeed~

established standards ofthis

Part must be maintained in their present high

quality,

unless

the

proponent

can

demonstrate

pursuant

subsection

(c)(2)

of this

Section.

that

allowing

the

lowering

of water

quality;

necessary to accommodate important economic or social development.

Any

proposed

increase

pollutant

disturbance

of natural

conditions that has occurred since November 28,

1975,

not previously

authorized

subject

NPDES

permit

CWA

Section

401

certification must

be assessed pursuant

Ill.

Adm.

Code Part 354

determine compliance

with

this

Section prior

issuance of

NPDES

permit or 401

certification.

The

Agency

shall

consider

the

fate and

effect of any

parameters

proposed for an increased pollutant loading.

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE

OF PROPOSED AMENDMENTS

The proponent ofan

increased pollutant loading

shall demonstrate

the following:

The applicable numeric or narrative water quality

standard

must not be exceeded as a result ofthe proposed activity;

ii)

All existing uses must be fully protected;

All

technically

and

economically reasonable

measures

iii)

avoid or minimize the extent ofthe proposed load increase

and

disruption

natural

conditions

have

been

incorporated into the proposed activity: and

The

activity that

results

increased

pollutant loading

must benefit the community at large.

An assessment may be required in connection with the renewal

permit

for

loadings

disturbance

natural

hydrological

conditions

that

hawe

been

authorized

since

Novermber 28,

1975, if there

good reason

believe that the

discharge

disturbance

longer

necessary

accommodate important economic or social activity.

Activities Not Subject to an Antidegradation Demonstration

The following activities

will not

subject

antidegradation

demonstration

pursuant to subsection (c) ofthis Section.

Short-term, temporary

(i.e., weeks

or months)

lowering

of water

quality

not affecting existing uses;

0 CFR

122.41(m);

Bypasses that are not prohibited at 4

Response

actions

pursuant

the

Comprehensive

Envircrnmpnthl

Response,

Compensation

and

Liability

Act

(CERCLA),

amended,

similar

federal

State

authority,

taken

alleviate

release

into

the

environment

of hazardous substances,

pollutants

contaminants

which

may pose a danger to public

health or welfare

iv)

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

thermal

discharge

that

has

been

approved

through

CWA

Section

316(a) demonstration;

New

increased

discharges

non-contact

cooling

water,

without

additives, returned to the same body ofwater from which it was taken as

defmed

Ill.

Adm.

Code

352.104,

provided

that

the

discharge

complies with applicable

Illinois thermal standards; or

should be stricken or alternativelyl

Discharges

permitted under a

current general

NPDES

permit as provided

415

ILCS

5/39(b) or general

404

permit,

are not

subject to

facility-

specific antidegradafion review,

however, the

Agency

shall assure that

individual

permits

are

required of

all

new

loadings or

hydrological

modifications

subject to

NPDES permitting

or 401

certification

that

may

affect waters

containing

rare

pollution

intolerant

species

otherwise

arc

particular

biological

significance,

including

those

containing rare or pollution intolerant

species.

Lake Michic~’an

flasin

Waters in

the Lake Michigan basin as identified in

Ill.

Adm.

Code

303.443

are also

subject to

the requirements applicable to bioaccumulative chemicals of concern found at

Section 302.52 1 ofthis Part.

Section 302.105 Nondegradation

Except as

otherwiseprovided in

Section

302.520,

waters v

established standards

at their

date of

their adoption will be mainta.

waters will not be lowered

in quality unless

and

until it is

affirmativeiy

uemonstrateu mat suen cnange will

not

interfere with

or become

injurious

any appropriate beneficiaFuses made-of, or presentlypossible in,

such waters

and that such change is justifiable

as a

result of

necessary

economic or

social

development.Heading of Part:

Water Use Designations and Site Specific Water Quality

Standards

Section 303.205

Outstanding

National

Resource Waters

An Outstanding National Resource Water (ONRW)

is a water body

or water body

segment that

is of

outstandinguniquely high

biological or recreational quality and

shall be

designated by the

Board pursuant to 35 Ill.

Adm. Code

106,

Subpart L.

Tfl.~1T

hose existing quality is better than th

~ned~

nucn

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

Outstanding

National

Resource

Waters

(“ONRW”)

shall

listed

Section

303.206 ofthis

Part. In addition to all other applicable use designations and water

quality

standards

contained

this

Subtitle,

ONRW

subject

the

antidegradation provision of Section

302.105(b).

b-)-~.-eream

—segmc--nts

that-have--a 7Q

low-~---fi

ew e-f

z--c-ro------~w-i1lgencrally net be e-onsidere4—a

candidate forthis

designation.

e~b)

petition

designate

water

segment

ONRW

must

submitted to

the Illinois Pollution Control Board pursuant

to the procedural rules

found in 35

Ill. Adm. Code

106,

Subpart L.

Section 303.206

List ofOutstanding

National

Resource Waters (Reserved)

Subpart K proposals

Section

106.990

Applicability

The procedures set forth

in this

Subpart

apply to

any

person seeking an

Outstanding National

Resource Water “ONRW” designation for a surface water

or any segment thereofas provided by

Ill.

Adm.

Code

303.205.

This

Subpart shall be read in

conjunction with

Ill.

Adm.

Code

102

that contains procedures

generally applicable

to regulatory

and

informational

hearings and

proceedings.

proceeding

held

pursuant

this

Subpart,

the

requirements of this

Subpart

shall apply in the event ofconflict between the requirements of 35

Ill.

Adm.

Code

102

and those

ofthis Subpart.

Section

106.991

Definitions

For-the purpose of this

Subpart, words

and terms

shall have the meanings as defmed in

Ill.

Adm. Code

102.101, unless

otherwise provided.

Section

106.992 Petition

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

Any person may submit a written petition for the adoption,

amendment or repeal

of an ONRW

designation.

The

original and nine (9) copies of each petition shall be filed with the Clerk and

one

copy

each

served

upon

the

Agency,

and

the

Illinois

Department of Natural

Resources

(IDNR).~Notice of the petition shall be given to the Attorney General, the States Attorney of

each county in

which

the waters

or water segment runs, the Chairman of the

County Board of

each

county

which

the

waters

water

segment

runs,

each

member

the

General

Assembly from the legislative district in which the waters or water segment runs, find—notlee-of

the

petition

shall be

given to and

to current NPDES

permit holders discharging into the water

designated.

and

NPDES

permit

applicants,

applicants

for federally pe~tted activities

that require a certification from the Agency pursuant to Section

401

ofthe Clean Water Act,

and

pui~i

persons

required

law.

Persons

seeking

amend

repeal

ONRW

designation

shall give notice to the persons who joined in the petition that caused the water

or waters to be designated as an ONRW.

Section

106.993 Publication

A person that

submits

written petition for the adoption,

amendment or repeal

of an

ONRW

designation

shall, within

days after the petition is

filed, publish

notice of such petition in

newspaper

of general

circulation

the

county or

counties

which

the

effected

water body

flows.

Section

106.994

Petition Contents

The

petition

must

captioned

accordance

with

Ill.

Adm.

Code

Section

101 .ILLUSTRATION

General

Rulemaking.

The

petition

must

contain

headings

corresponding

the

informational

requirements

each

subsection

this

Section.

The

following information shall be contained in the petition:

The

proponent

shall

identify

the

waters

water

segment,

which

addressed by the proposed amendment and the language

to be

added, deleted or

repealed.

Underscoring must indicate language being added and

strikeouts must

indicate language being deleted.

A statement describing the specific surface water or segment thereoffor which the

ORWONRW

designation

requested

and

that

waters’

segment’s

present

designation;

statement

describing the

area

which

the

specific

surface water

or segment

thereof exists including, but not limited to:

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE OF PROPOSED AMENDMENTS

the existence ofwetlands or natural areas;

the

life

contained

within

that

area

including

endangered

threatened

species ofplants, aquatic life or wildlife listed pursuant to the Endangered

Species

Act,

USC

1531

seq.

the

Illinois

Endangered

Species

Protection Act, 41

ILCS

10.

statement supporting

the

designation

including,

but

not

limited

to,

the health,

environmental, recreational, aesthetic or economic benefits ofthe designation

statement

identifying

the

ORWONRW

designation’s

anticipated

impact

economic

and

social

development.

This

statement

should

supported

current, verifiable information including, but not limited to:

impacts on the regional economy:

impacts

on regional employment;

impacts on the community;

comparison of the

health

and

environmental

impacts

the

economie

impact of an ORWONRW designation;

A statement describing the existing and anticipated uses ofthe specific surface water

or segment thereoffor which the O~RWONRWdesignation is requested;

statement describing the

existing

and

anticipated quality

of the

specific

surface

water or segment thereofwarranting the ORWONRW designation:

A synopsis of all testimony to be presented by the proponent at hearing;

Copies

any

material

incorporated

reference

within

the

proposed

designation pursuant to

Section

5-75

ofthe Administrative Procedures Act;

Proof of service upon all

persons required to be

served pursuant

Section

106.942

ofthis Part and proofofpublication required by Section 106.943 ofthis Part:

Unless

the proponent

the

Agency,

Illinois

Department of Natural

Resources

receives a waiver by the Board, a petition signed by at least 200 persons, pursuant to

Section 28 of the Act and Section

102.160(a); and

ILLINOIS REGISTER

POLLUTION CONTROL

BOARD

NOTICE OF PROPOSED AMENDMENTS

Where

any

information required

this

Section

inapplicable

unavailable,

complete justification for such inapplicability or unavailability.

Dismissal

Section 106.995

Board Action

Failure of the

proponent to

satisfy the

content

requirements for petitions

under

this

Subpart or failure

respond to

Board

requests for additional

information will render a petition subject to dismissal for inadequacy.

Failure of the

proponent to

pursue disposition of the petition in

a timely

manner

will

render

petition

subject

dismissal.

making

this

determination, the

Board

shall consider factors

including but not

limited

to,

the history ofthe proceeding and the proponent’s compliance with any

Board or hearing officer orders.

Any person may file

a motion

challenging the sufficiency of the petition

pursuant to 35

Ill. Adm. Code

101 .243.

SSStflW’.

tL4~

The Board

shall

dismiss

petition

for

1~~~1~’v

cases

which

the

Board,

after evaluating

the

petition,

cannot determine

the

jurisdictional

basis

which

the

petition

made.

all

such

cases,

statement

informing the proponent of the Board’s basis

for dismissal will be

made.

Dismissal

of the

petition does not

bar

a proponent

from

re-submitting

petition

the

absence

of any

deadline

imposed

the

Act

Board

regulations.

Designation ofONRW

The Board

shall designate

a water body or water body segment as

an ONRW and list it in Ill. Adm.

Code 303 .206 if it finds:

the

water body

or water body

segment

is of uniquely

high biological

recreational quality: and

ILLINOIS REGISTER

POLLUTION CONTROL BOARD

NOTICE

OF PROPOSED AMENDMENTS

the benefits of protection of the water from

future degradation outweigh

the

benefits of economic

or social

opportunities

that

will be

lost

the

water is designated as an ONRW.

1•~

roiin,~n

ta I

I’rotection Agcncy

IEPA/BOW/OO-005

It)

U~’

Sp~

inglield. IIIii~iis

(,2704-’)27(

Illinois

Water Quality Report

2000

Illinois

Environmental Protection

Agency

Bureau

of Water

1~~

--~-

_~t~t~-

Sources of Less Than

Fufl

Support

Sources ofuse impairment for rivers and streams not fully supporting uses are summarized below

Table 3-12.

Table 3-12.

Statewide Sources

Rivers

and Streams

(miles).

Sources

Category

Total

Impact

industrial

Point Source

405

Municipal

Point

Source

1,641

Combined Sewer Overflow

385

Collection System

Failure

Wildcat

Sewer

Agriculture

4,372

Animal Holding/Management

Areas

391

Construction

241

Urban Runoff/Storm

Sewers

1,020

Resource Extraction

1,048

Land Disposal

Hydromodification

2.613

Habitat Modification (other than Hydromodification)

795

Atmospheric Deposition

Highway Maintenance/Runoff

Contaminated Sediments

281

Natural

Sources

137

Recreation Activities

Other

110

Source

Unknown

346

Water Quality Summary by Watershed

Water quality summary information for the 33 watersheds of Illinois can be

found in Appendix A

of

this report. Additionally, a series of33 fact sheets depictingsummary information from the

200(

cycle

305(b)report

areavailable on theIllinois EPA’shomepageat ww

quality!.

Sources of Less Than

Full Support

Sources of usc

impairment

for all

lakes

not

tully Supporting

U5CS

are

suniniarized in Table 3-30.

Table

3-30.

Statewide

Sources

All

Lakes.

Total

Impact

Category

Number

Acres

14,328

29.300

225

163

124.749

Holding/Management Area

11,836

Sewers

48,530

19,006

26,895

6,407

than Hydromod.)

118

115.434

and Runoff

22,129

96,344

7,752

Tourism Activities-

94,405

•-

12,011

Application

104

424-

3~W

I03,~

Antidegradation

Implementation

for

Water Quality

Protection

South

Carolina

July1998

PROMOTE PROTECT PROSPER

South Carolina Department ofHealth

and

nvironinental

Control

EXHIBIT

Table of Contents

Purpose

II.

Background

HI. Implementation

A. Tier

Level of Protection

B. Tier 2 Level of Protection

C. Tier 2

Level of Protection

D. Tier 3 Level of Protection

Antidegradation Rules

Tier

Implementation Flowchart

Tier 2 Implementation Flowchart

Tier 2

Implementation Flowchart

Example of Public Notice

DHEC

Antidegradation Implementation for

Water Quality Protection

in South Carolina

____

July

1998

PROMOIf

PROud

PROSPRR

South

Carolina

Department of Health

and Environmental

Control

Purpose

This document describes how the South Carolina Department of Health and Environmental Control

(Department) will implement the State’s Antidegradation Policy included as Antidegradation Rules

Section D of S.C.

Regulation

61-68, Water Classifications and Standards.

It also

informs

the

public of the Department’sapproach when issuing discharge permits which

allow a lowering of water

quality in certain waters of the State while providing for protection of classified and existing uses.

This approach

will

be implemented by the Department’s Bureau of Water.

Note:

copy of the Antidegradation Rules from Section

D of R.61-68

is provided at the end

of the text.

II.

Background

The Federal Antidegradation Policy was established by the Secretary of the Interior in February 1968

and incorporated into

the Federal Water Quality

Standards Regulation issued by the Environmental

Protection Agency (EPA)

in November 1975.

That policy was clarified and included in the Federal

Water Quality Standards Regulation published on November 8,

1983

(48 FR 51400) and codified

as 40 CFR

13.1

.1 2(a)(

1 )-(3).

These regulations require all

states, tribes, and territories of the United

States to have an antidegradation policy in their water quality standards consistent with the Federal

policy and to identif~j

the methods for implementing the policy.

In the preamble to 40 CFR 131,

the

regulation states:

“In its entirety, the antidegradation policy represents a three-tiered approach to

maintaining and protecting various levels ofwater quality and uses.”

This statement has given the

antidegradation

policy its

conmion name

of a

“tiered”

approach

when

referring to the

levels of

protection outlined in the regulation.

The following is an explanation of how this “tiered” approach

is defined and how the Department views these levels of protection for existing and classified uses.

The

EPAWater Quality Standards Handbook states that an antidegradation policy should consist of

at least three tiers or levels of water quality protection.

These are summarized as follows:

Tier

1 antidegradation policies apply to all

waters ofthe State and require that existing uses (those

attained in the waterbody on or after November 28,

1975) and the minimum level of water quality for

those uses be maintained and protected.

Tier 2 antidegradation policies apply

to high quality

waters where the water quality exceeds

the

mandatory minimum levels to support

Section

101 (a)(2) ofthe Clean Water Act’s (CWA) goals of

propagation of fish,

shellfish and wildlife, and

recreation in

and on

the water.

The Department

considers all

the waters of the State as high quality waters.

Tier 3 antidegradation policies apply to the maintenance ofwater quality in waters which constitute

an Outstanding National

Resource Water (ONRW) and do not allow for any permanent permitted

discharges.

South

Carolina has incorporated these three

levels of protection into

its water quality standards

contained in Section

D, Antidegradation Rules of R.6 1-68 and it reflects the current requirements of

Federal

Regulation,

CFR

131.12.

The

State’s

Antidegradation

Rules

also

contain

specific

language precluding any discharge which would:

South

Carolina’s ,lngideRradation Implemeniation

exclude

an existing shellfish harvesting or culture use,

affect

stream flows necessary to protect classified and

existing uses consistent

with riparian

rights

to reasonable use of water,

not allow groundwater uses to be maintained and

protected, or

allow a dissolved oxygen depression

in naturally

low dissolved oxygen waterbodies other than

as prescribed.

A fourth level of protection has been added

to R.6l-68 which

incorporates waters which do

not meet

the requirements ofTier 3 for ONRWs, but provides fora higher level of protection than Tier

The

State’s Antidegradation Rules contain a level of protection for the maintenance of water quality in

waters which constitute andare classified as an Outstanding Resource Water (ORW) of the State

and

will be known in this document as Tier

2’/2.

The

following describes how the State’s

Antidegradation Rules

are

implemented through a tiered

approach.

III.

Implementation

Antidegradation

Implementation is

initiated

application to

the

Department for a

new

expanded discharge foraNational

Pollutant Discharge Elimination System (NPDES) permit.

Other

activities requiring nonpoint source controls through permits

or certifications, such

as stormwater

permits,

are also subject to

the State’s Antidegradation

Implementation.

The Department uses a

parameter-by-parameter approach for implementation of the State’s antidegradation rules and will

review each

parameterseparately as it evaluates an application for a new or expanded

discharge.

All

waters of the

State

will

be provided a minimum of at

least one of four levels of antidegradation

protection as contained in R.6 1 -68.D as described herein.

All waters of the State are considered high

quality waterswherethe water quality exceeds levels necessary to support classified and existing uses

or have

available assimilative capacity for some constituents.

Most of the waterbodies that have

impaired water quality are limited for only oneparameter.

All waters in South Carolinaare classified.

The classifications of the waters consist of two parts: the

best usesto be made ofawaterbody and instream water quality standards which are stringent enough

to protect the classifiedand existing uses.

Existing uses are defined in R.61-68 as those uses actually

being attained in or

on the water, on or afterNovember 28, 1975, regardless of the classified uses.

Existing uses also apply

to those waterbodies with water quality

suitable to allow the uses to be

attained in andon the water in accordance with Section

303(a) of the CWA.

This Section of the Act

established existing State water quality standards for uses that were

in effect prior to the enactment

of the CWA as a “starting point” for water quality standards.

Note: Flowcharts of Antidegradation Implementation are provided at the end of the

text.

A. Implementation of Tier

1 Level of Protection

Section

D.1

of R.6l-68

requires the

protection of existing uses and the level of water quality

protect those uses for all

waters of the State.

Tier

applies a minimum level of protection to

all

waters.

1. To implement Tier

antidegradation, the Department must determine ifa planned discharge would

lower water quality to the

extent that

it would no

longer

be sufficient to protect and maintain the

existing uses of that waterbody.

Any discharge which would remove an existing use is inconsistent

South Carolina’s ,4ntidegradation Implementation

with

the

State’s

Antidegradation

Rules which

states

that existing

uses are to

maifltained

and

protected.

In such a circumstance, the planned discharge must

be avoided or adequate mitigation or

preventive measures must be taken to ensure that the existing uses and the water quality to protect

them

will

be maintained.

2. The Department has initiated

water quality assessment and protection on a watershed basis

in order

emphasize

coordinated

approach

basin

management

and

water

quality

maintenance

improvements, to

better address congressional and

legislative

mandates, to better utilize current

resources, and to better inform the public and the regulated community of existing and future water

quality issues.

This watershed management process focuses the Department’s resources and enables

staff to target

work efforts

order to maximize

useful

results.

Development

of the watershed

strategies includes wasteload allocations and Total

Maximum Daily

Loads (TMDLs) for specific

waterbodies that may not

be fully supporting all

the uses of the waterbody.

For the purposes of this

document, the Departmentdefines total load allocations as a wasteload(s) for point source discharges

and load(s) for nonpoint sources.

Hereafter in this document the phrase total

load allocation will

incorporate both point and nonpoint sources where applicable.

In anticipationofthe developmentofa TMDL for a specific waterbody, the Department may conclude

that a proposed discharge will not cause or contribute to an impairment ofthe waterbody based

upon

the

specifics

of a

total

load

reallocation that has

been agreed

to by

the

project applicant(s)

accordance with areawide planning agencies pursuant to Section 208 of the CWA.

The reallocation

allowed

interim

measure

until

TMDL

pursuant

Section

303 of the

CWA

can

developed.

The Department will ensure that the public health and welfare will

not be endangered if

a reallocation is allowed.

Since all

waters of the State are considered high quality in that they possess

assimilative capacity for some constituents, any proposed discharge will

be subject to an alternatives

analysis as required by R.61-67.200.D.l.k (for description, see

Section

B.2 of this document)

and

Section

208 of the CWA.

The followingexamples (not inclusive) describe how the Antidegradation Rules will be implemented

for Tier

1 protection:

When the available assimilative capacity of a waterbody is not sufficient to ensure maintenance

ofwater quality standards for aparameter of concernwith an additional

load to the waterbody,

then the Department will

not allow a permitted net

increase of loading

for the parameter of

concern or pollutants affecting the parameter ofconcern.

This no net increase will be achieved

the

reallocation of existing

total

load(s)

meeting

the

applicable

water

quality

standard(s) at the end-of-pipe.

Until such time that a TMDL

is developed for the parameter of

concern

for the

waterbody,

discharge

will be

allowed to

cause

or contribute to

further

degradation ofthe waterbody.

ii)

When applying narrative standards included in R.61-68, if nutrient loadings caused a waterbody

the

impaired waters

list

accordance

with

Section 303(d) of the CWA,

then the

Department will not allow a permitted net increase of loading for the appropriate nutrient(s)

until such time as a TMDL is developed for the parameter of concern

for the waterbody.

discharge will be allowed to cause or contribute to further degradation ofthe waterbody.

iii)

When

applying

numeric standards included

R.6l-68

for human

health, aquatic

life,

and

organoleptic protection, ifa waterbody has been affected by aparameter of concerncausing it

be on

the impaired

waters

list

accordance with

Section 303(d) of the

CWA, then the

Department will

not allow

permitted

net increase of loading for the parameter of concern

unless the concentration ofthe parameter ofconcern will not cause a violation of water quality

South caroli,ia ‘a Antid~pradationImnl~meniaiion

standard(s).

This no net increase will

be achieved

reallocation of existing total load(s) or

meeting applicable water quality standard(s) atthe end-of-pipe.

Until such time as a TMDL

developed for the parameter of concern, no discharge will

be allowed to cause or contribute to

furtherdegradation of the waterbody.

Any

allowed

permit

would

proceed

through

the

permitting

process

and

allow

for

public

participation through those mechanisms described

in Section

B.6 of this document.

4. Once the Tier

antidegradation review is completed by

the Department, documentation of its final

decision

will

included

in the

rationale for the

permit.

The

Bureau of Water will

maintain

databasethat will include the Department’s evaluation and final decision of all

permits that have been

reviewed under these conditions.

Implementation

of Tier

2 Level of Protection

High

quality waters are waters where the quality exceeds levels necessaryto support classified and

existing usesor have available assimilative capacityfor some constituents.

If an application fora new

or expanded discharge for an NPDES permit is submitted to the Department, and ifverification

made

the

Department through

the

wasteload

allocation, watershed

strategy development,

NPDES permitting process that the waterbody has water quality sufficiently greater than that defined

by the standards such that available assimilative capacity forthe parameter(s) of concern does exist;

then the following additional

antidegradation review would be initiated.

To verify that awaterbody is a high quality water for a parameter of concern which initiates a Tier

2 antidegradation review, the Department must evaluate:

ifand to what degree water quality exceeds that necessary to protect existing uses,

if and to what degree water quality will be lowered, and

ifclassified and existinguses will be maintained and protected by applying the standards

set forth

in R.6l-68.

In multiple discharge

situations, the aggregate predicted lowering of water quality must be allocated

among the dischargers.

This initial step of the review

is presently practiced in the current watershed strategy development,

wasteload allocation, and NPDES permitting process and is a necessary evaluation for determination

ofthe level of protection applicable to a waterbody.

2. Section D.2 of R.6l-68

requires that in order for the State

to allow the lowering of water quality

in a

waterbody,

the need

for it

must be shown.

alternatives analysis will determine that the

lowering ofwater quality is unavoidable.

In accordance with R.6l -67.200.D.

1 .k,

the applicant must

demonstrate to the Departmentthat none of the following applicable alternatives that would minimize

or eliminate the lowering of water quality are economically or technologically reasonable:

water recycle or reuse,

use of other discharge

locations,

connection to other wastewater treatment facilities,

use of land application,*

product or raw material substitution,

any other treatment option

or alternative.

4

South

Carolina’s Angideeradation Implementation

The Department will evaluate whether a proposed discharge that will

result in the lowering of water

quality of a

waterbody, and

for which

there

are

economically

technologically

reasonable

alternatives, is necessaryfor important economic or social development.

For this to be accomplished,

several economic and social factors must be considered.

These include,

but

are not necessarily limited

to, the

following:

employment (increases, maintenance, or avoidance of reduction),

increased industrial production,

improved community tax base,

improved housing, and/or

correction of an environmental or public health problem.

The

Department will use the

208 Planning

Process for evaluating these

factors.

South Carolina

prepares areawide wastewater management

plans pursuant to Section

208 of the CWA.

The

208

plans are administered by

five (5) Councils ofGovernment (COGs) and the Department, depending

on the applicable area of the State.

The development, update,

or amendment of a 208 Plan includes

economic and social considerations for siting of any discharge point.

Since no NPDES permit can

be issued unless it

is in conformance with the applicable 208 Plan, economic and social considerations

are inherent

in the 208 review and permit issuance process.

4. The Department will review the pollution prevention and alternatives analysis to determine if the

lowering

of water quality can

minimized

or eliminated.

If the

analysis

identifies

affordable

treatment options that, combined with any alternatives, would prevent the need for the lowering of

water quality, the

Department will deny the requestto lower water quality.

Should the Department

find that the pollution prevention and alternative treatments are unable

to minimize or eliminate the

need for lowering ofwater quality in the affected area,

it will also find whether the proposed discharge

will support important social and economic development.

If the proposed discharge

does support

important social and economic development, then the Department may decide to grant the requestfor

lowering of water quality provided water quality sufficient to proteet existingand classi-fied-uses is

maintained and provided the decision is subject to public participation and comment.

5. The Departmentwill provide for intergovernmental cooperation and public participation through

the

State’songoing planning processand NPDES public noticing process.

This will be accomplished

through the developmentand/or revisions of 208 Plans.

In this process, designated COGs are given

notification ofthe NPDES permittingprocess with the opportunity to seek additional

information or

provide comment regarding the NPDES permit, whether new

or reissued.

This allows

for public

participation at the local level.

The Department further fulfills its requirements for intergovernmental coordination in this process

by including notification to the EPA Region 1V Office andother governmental agencies on its mailing

list which includes the

following: the South CarolinaDepartment of Natural Resources; the United

States Forest

Service;

the South

Carolina Wildlife Federation;

the South Carolina Department of

Commerce; the United States Fish and Wildlife Service;

the South CarolinaDepartment of Parks,

Recreation,

and

Tourism;

the

National

Marine

Fisheries

Service;

and

the

Department

Transportation.

6. The Department fulfills its remaining requirements of public participation by notifying individuals

who have expressed concern about the proposed conditions of-the-specific permit.

A Public Notice

containing a statement that the proposed NPDES permit will address antidegradation concerns is

issued and

comments

are requested from

the

public on

the

matter

(see

the

attached example).

Further, the Department complies with requirements

in its permitting regulations that require public

South

Carolina’s Antidegradation Implementation

notices of permitting actions and uses many methods foraddressing the

posting of notices such

displaying the notice in prominent locations.

Other

activities

requiring

nonpoint

source

controls

through

permits

certifications,

such

stormwater permits, arc also subject

to the same public participation process as NPDES permits.

7. Once the Tier 2 antidegradation review is completed by the Department, documentation of its final

decision

will

be included

the

rationale for

the

permit.

The Bureau of Water will

maintain a

database that will include the

Department’s evaluation and

final decision of all permits

that have been

reviewed under these conditions.

Implementation of Tier

Level of Protection

When the Department has determined through its water use classification process that a waterbody

is of significant ecological or recreational value, then

it is

classified as an Outstanding Resource

Water (ORW) of the State.

Tier 2’/2 level of protection applies to these waterbodies.

This level

allows no

discharges from domestic, industrial, and agricultural waste treatment facilities or open

water dredged spoil disposal and requires the maintenance of existing-water quality.

Stormwater and

other nonpoint source runoff including that from agricultural or permitted discharge

from aquaculture

facilitiesare allowed in these waters provided no significant adverse effect to water quality will occur.

1. The Department will review applications for a proposed discharge to ORW waters to ensure that

the discharge can

be considered in accordance with R.61-68,G.5.b.

2. Once the Department has concluded that the discharge can be considered,

it must be determined

whether the discharge will result in a discemable change

in water quality.

Ifthe proposed discharge

would cause degradation, thenthe discharge must be denied.

Since only discharges that would result

in the maintenance and protection of existing water quality are permitted, no furtherantidegradation

review

is necessary.

Any allowed permit would then proceed through

the permitting process and

allow forpublic participation through those mechanisms described

in Section B.6 ofthis document.

3. Once the Tier 2

antidegradation review is completed by

the Department, documentation of its

final decision will be included in the rationale forthe permit.

The Bureau ofWater will maintain a

databasethat will include the Department’sevaluation and final -decision ofall

permits that havebeen

reviewed under these conditions.

D. Implementation

of Tier 3 Levelof Protection

The ~State’s

Antidegradation Rules included in R.6 1-68 allow that the Department may determine

through the classification processthat some Outstanding Resource Waters of the State

are nationally

significant and may be

classified as Outstanding National Resource Waters (ONRWs).

ONRW

waters are protected

by applying the

standards of the Class ORW which

require maintenance of

existingwater quality and additionally would not allow any--pointsource d-ischarges.

No permanent

permitted

discharges of any kind would be

allowed and the exceptions listed for the State’s ORW

waters would not apply to those waterbodies

classified as nationally

significant.

South

Carolina

Anlideeradation imolementation

Antidegradation Rules as contained

in Section D. of S.C.

Regulation 61-68,

Water Classifications

and Standards

Existing water uses and the level of water quality necessary to protect these existing uses shall be

maintained and

protected regardless of the water classification and consistent with the policies below.

A new activity or expansion ofan existing activity

shall not be allowed

in Class ORW or

Shellfish Harvesting Waters if it would exclude, through establishment of a prohibited area,

an existing

shellfish harvesting or culture use.

A new activity or expansion of an existing activity

which will-result

in a prohibited area may be allowed in Class SA or Class SB waters when determined to be appropriate

by the Department.

Existing uses and water quality necessary to protect these uses are presently affected

or may

be affected by

instream modificationsor water withdrawals.

The streamfiowsnecessary to protect

classified and existing uses and the water quality supporting these uses shall be maintained consistent

with riparian rights to reasonable use of water.

Existing or classified ground water uses and the conditions necessary to- protect those uses

shall be maintained and protected.

Where surface water quality exceeds levels necessary to support propagation of fish, shellfish,

and wildlife, and recreation in and on

the water, that quality shall be maintained and protected unless the

Department finds, after intergovernmental coordination and public participation, that allowing lower

water quality is necessary to important economic or social

development in the areas where the waters are

located.

In allowing such

lower water quality, water quality adequate to fully protect existing and

classified uses shall be maintained.

The highest statutory and regulatory requirements forall

new and

existing point sourcesshall be achieved and all cost-effective and reasonable best management~iractices

for nonpoint source control shall be achieved within the State’s statutory authority and otherwise

encouraged.

The water quality of outstanding resource surface waters designated as Class ORW shall be

maintained and protected through application ofthe standards for Class ORW as described in Section

G.4 and

The Department may determine, through the classification process, that some Class ORW

waters are nationally

significant.

Upon such determination, all activities described in Section G.4 and

shall be prohibited.

Certain natural conditions may cause a depression of dissolved oxygen in surface waters while

existing and classified uses are still maintained.

The Department shallallow a dissolved oxygen

depression in these naturally low dissolved oxygen waterbodies

as prescribed-below:

Under these conditions the quality of the surface waters shall not be cumulatively lowered

more than 0.1

mg/l for dissolved oxygen from point sources and other activities, or

Where natural conditions alone create dissolved oxygen concentrations less~than

110 percent

of the applicable water quality standard established forthat waterbody, the minimum acceptable

concentration is 90 percent ofthe natural condition.

Under these circumstances, an anthropogenic

dissolved oxygen depression greater than 0.1 mg/I shall not be allowed unless it

is demonstrated that

residentaquatic species shall not be adversely

affected.

The Department may modify permit conditions

to require appropriate instream biological

monitoring.

The dissolved oxygen concentrations

shall not be cumulatively -lowered more thanthe deficit

described above utilizing a daily average unless

it can

be demonstrated thaLresident aquatic species shall

not be adversely affected by

an alternate averaging period.

7

South

carolina’s Antidei’radatian Implementation

Tier

Implementation

The

F)epu-tn,ent recerves..n.i1rptrtion

he watorhodv

ogw’

Yes

Conduct

I er

for a

new

oeenpandod

dech..rge

—

lnrpknreniation

Doe,

wateehodv

have avaitabk

Conduct

icr

aiundative

capacity

for

Yes

lmpkrnontation.

~—

the

parameter

~

Wmtt

(

Actisi~

Dewed.

occur

because

Document decision

of the proposed

discharge’

Rev,e~,alternatives

the

proposed discharge

and

evaluate technological

fiscal factors

___

tscheohogical

an&oe

L~~EEHs~~tw~

7~uit~

with

eithe,

reallocation

for the

pammeteeofconcern

(

Activity Denied

among

the

macrev or with

limits

that

Document

deceaun

will

require meeting

theapplicable

water

quathe standard

the end-of-pipe

Yes

V

~tpubhicp~aliunJ

(7

Imuc pemiit

Document

decision

Tier 2 Implementation

South

Carolina’s Antidegradation Implementation

I he Departnment

receives

an applicatien

tcmr a new

orenpanded dischargc

the

cmalerhiidy

an ORW’

Conduct

lice

7’/i

Yes

h,rirlein~ntation

Does thc

waterbody

have

available

assuiiiilati’.e

capacity

for

theparaoueler of

coucem’

Yes

Will

— -

Proceed

with

(

~~~gradation

occur because

proccss

of the proposed

Doeumcnt decision.

discharger

Yes

Conduct her I

lotplcmcnlatuon

Review

alternatives to the propoved disehatge

and esaluate technological

fiscal factors

Can

~—

technological andor

affordable

ahtcrnutivcs

process

for alternatives

Document decision

ehiminutethe

to minimize

disc~’e?~

Issue permit.

Document decision

Yes

Conduct intergovernmental coordination

and

public participation

Tier

Implementation

South

Carolina’s Antidegradation Implementation

Department receives an application

for a

ttew or expanded

discltarge

the waterbody an

ORW’

Yes

Cotidrmct

icr

Inapletrsetstatton

Activity

Dettted

Docmmment decision

,~4

Can

the discharge

be considered

pursmmattl to

R6 I -61G5b?

Yes

Conduct Tier

Does

the

~No

Implemen~ttoticonsistent

waterbody have avam

assimilalive

capacity for

the

paesmeter of

with R61-fiflG5b

concern?

—

Yes

/

Yes~-~~

de~

Will

Activity denied

‘radation

occur

because

~-.

Document decision

ofthe

proposed

discharge?

~y7

public pofli~tion

(

Pe~it issued

Document

decision

I0

South

Carolina’sAntidegradation Implementation

Example of Public Notice Lan2ua~e

for Antide2radation

The

Department has conducted a review of the proposed discharge in accordance with the Antidegradation

Rules of S.C. Regulation 61-68.

The

Department has made a preliminary decision that the discharge

may

allowed.

This

Notice

provides

for

public

participation

and

intergovernmental

coordination.

Documentation of the antidegradation decision is available in the permit rationale.

II

rIH~

j.~:

bcL~/L4k

ILk

PL~LLUT

1Lli

~.:r

4TR~L

State ofIllinois

ENVIRONMENTAL

PROTECTION AGENCY

—

_~.ra—__u

—-—--~—~

——

-—

-—--

-—

L1~

Msy A.. Gad., DLi~to:

2200

On~zchfll

flUlhilg

Sjxi~ii;l4,

IL62~94427ö

MEMORANDUM

DATE:

April

1995

K.vui

M~yer~

FROM:

Bob

Mo~,hCr

SUBJECT.

Nondigradation

Eva~iatian

Pr~p~s~d

Hunt.y WOSt SIP N1~

lLJ~0iO6ö~

Nuntley

WQst .

00pos00

~ac~ity

that would

dsch~rge

the

So~.ith~iancriCf

tne

Kishwaukas

River,

SInce the

p!ant

~ilf

designed to

rnaet

~5 and 40

mg/I ammonia

day avcrage limit;

summer

arid wir7t~r,r.soect~veiy,It

reCogni~0

that the

pest degree of ammonia treatmorit

w~Ube

app~sd.

The

onty

other

~n~wnparamet~r’~

that

woutd

b~cOn~~d~r.d

nondegr~dat~on

evaiu~tionare nutrient;,

A~Iother $ub,tpnces wcu~dbe

pred~ct~d

prez~r,t

the

effluent at

levels far

below

water q~ahty

stano~r~s.

A~cordir~

to th~

~rMt

Noriciegradation Po~cy

currently

useU, stream; othsr th3n

A~strums

the

Biologic&

Streams

Cl~nlflcationsystem

ar~

not

given ~p~cta1

protection

from

~rtcreased

when v~Iidsocat

or ecor~omicneeds e~ist

Triq

~tP~

Branch

of the

~(I

aukoe

River

“B~

r;ted

stream.

Gven

mat

the

best degree

of t’e~tmerit

will b~

provided for

ammonia

sr~d

thai no

treEtment~i~

ordlnar~yeqi~red

for n~trier~L

no ~e~tr1ctior~s

should

plaCed

on thi;

facility

for the

sake ofmeetIng

the

nor~egradaticn

regulation

lii.

Adm.

Code ~C5.

Since

this

de:i;ion

flOt

~a3edon

the

aThuar~tfi~wc~fthe

facii.ty,

conc~us~on

tne

~me

wnsther

the OAF i~ ~or O.~r~a.

RGM:th~!t~n:-cy~

cc:

W~iiyM~it~un~~

Jz~yF~t~

EXHIBIT 3

rLu

I_Il

~_4LL__LtI

State ofIllinois

ENVIRONMENTAL PROTECTION AGENCY

Mary

Gade, Director

2200

Churchill

Road,

Sprlngfletd, IL 62794-9276

Memorandum

Date:

August 22,

1996

To:

Kevin Meyers

From:

Bob

Mosher

~t~’

Subject:

Nondegradation Evaluation for

Gilberts

(Kane

County)

NPDES

No.

1L0068764

The

subject

community

proposes

construct

a 0.8

MOD

DAF

sewage

treatment

plant.

The

receiving stream

is Tyler Creek which has

a 7Q10

flow of0.15

cfs at

this

location.

Tyler

Creek

rated

“B”

stream

under

the

Agency’s

Biological

Streams

Classification

system.

Downstream,

from Randall

Road to the mouth of Tyler Creek,

the

stream

rated

“C”

stream.

The

parameters

for which nondegradation

issues

arise

at this

facility are nutrients,

biological

oxygen

demand

(BOD) and ammonia.

The increased

loading of

ammonia

and BOD

should not

impact

aquatic

life

Tyler

Creek.

Degradation

of these

will

occur

the

effluent

flows

downstream.

The

nutrients

in the effluent also

should not impact

the ability

the

receiving

stream to

support aquatic

life given that

excess

nutrients are

already

present from

other

sources.

The

Illinois

Pollution Control

Board

regulation

for Nondegradation found

at 35

Iii. Mm.

Code

302.105

currently

implemented

via

a draft Agency

guidance

document.

Waters rated as

“B”

streams

under the BSC

system will be allowed to receive new

increased

discharges

with

the

following provisions:

the

water

quality

standards are

met,

there

an economic or

social need

for

the

discharge,

best

degree

of treatment

attained,

and,

ecological

alteration of

the

receiving

stream is

likely

to occur.

In the case of the

Gilberts STP proposed

discharge,

all these

conditions

are

met.

The

proposed

discharge

therefore

not

violation

of the

Board’s

Nondegradation nile.

The

facility

should be encouraged to apply

for

seasonal

disinfection exemption for the new

plant.

will send the

appropriate

material for this

purpose

if you provide the

name and

address

of a contact

person.

RGM:dls.gilbrtnd

cc:

Wally

Matsunaga

Jay

Patel

State

Illinois

ENVIRONMENTAL

PROTECTION

AGENCY

Mary A.

Gade,

Director

2200 Chuzchill

Road, Springfield, IL 62794-92Th

Memorandum

~ECEWFr~

Date:

August I~.~f

A1J~3?

1996

To:

Mike

I layes

From:

Bob Mosher

Subject:

Nondegradation

Evaluation

for

Lake

the

Hills

Sanitary District

NPDES

No.

lL0021733

The

subject facility

planning

increase

the

rating ut

the

treatment plant

from

2.1

MGD DAF to 3.1

MOD.

The

discharge

Crystal

Creek

also

known as

Crystal

Lake

Drain,

which

has

a 1Q10

flow of

3.6

upstream

the

outl~tll.

The

creek

also

receives

effluent

from

the

main

Crystal

Lake

sewage

treatment

plant

about

two

miles distance upstream

the

I .ake

the Hills

discharge.

Approximately one-

half mite downstream

the

Lakc

the

hills effluent

outfall

acre

impoundment,

Lake

in the

hills #2.

Crystal

(‘reek

rated

‘C”

stream

fur

its

entire length

according to

the

Agency’s

Biological

Stream

Characterization

(BSC)

system.

.ake

the

Hills

reported

have a 6,200 acre

watershed

and

maximum

depth of

feet.

It was

tbrmed

the

impoundment

of the main stem of Crystal Creek and

has

unique

features

that

would

make

especially

prune

degradation.

Based

Agency water

quality

data,

the

lake

considered

highly

eutrophic

with

very

high

levels of

nitrates

and

phosphates.

The

parameters

for

which

nondegradation

issues

arise

this

facility

are

nutrients,

biological

oxygen

demand (BOD)

and

ammonia.

The

increased

loading of

ammonia and

BOD should

not

impact

aquatic

life

Crystal Creek.

Degradation

of these substances

wilt occur

as the effluent

flows downstream.

The

nutrients

the effluent

also

should

not

impact

the ability of

the

receiving

stream to

support aquatic

life

given that

excess nutrients

are

already present from

other

sources.

Likewise,

Lake

the

Hills

also

has

excess

influx

nutrients

due

both

point

and

nonpoint

sources

regardless

this

plant

expansion.

The increased

loading

ut nutrients

that

would occur due

the expansion would therefore

not

factor

into

any

increase

the

incidence

negative

aspects due

nutrients, such

as algae

blooms

increased

growth of aquatic

macrophytes.

In other

words.

once nutrient

levels reach

a certain

point, plant

growth

becomes

limited

other

factors

such

light penetration

and

excess nutrients

are

not

utilized.

The

Illinois Pollution Control

Hoard

regulation for

Nondegradation

found

III.

Adm.

Code

302.105

currently

implemented

via

drati

Agency

guidance

document.

Waters

rated

“C

streams

under

the

I3SC

system

and

lakes with

unique

features

susceptible

impairment

will be

allowed to

receive new

increased discharges

with

the following

provisions:

the

water quality

standards

are

met,

there

is an

economic

social

need

for

the

discharge.

best

degree

treatment

attained,

and,

ecological

alteration of the

receiving stream

k likely

occur.

the case of the

Lake

in the Hills

Sanitary

District

STP

proposed

discharge,

all

these

conditions

are

met.

The

proposed

discharge

therefore

not

violation

the Roard’s

Nondegradation

rule.

iit.d

cit

1.cyclad P’e~’

The

DAF

the

treatment

plant

noi

critical

determining

ammonia

permit

limits

at this

facility

because of

the sinai!

amount

mixing

available.

Sinec

the ammonia

limits

are currently

set

1.5

and

4.0

mg/L

monthly

average

for

summer

and

winter.

respectively,

and

these

arc

generally

the

most

stringent attainable

limits

applied.

suggest

that

modifications

he made at this

time.

When

the

Board

adopts new

ammonia

waler

quality

standards,

these

will

addressed

the

Lake

the

Hills

permit

the next

renewal.

I arnicipate that the

limits

dictated by

the

new

standards

will

identical

those

now

present.

memorandum

tioni

Sieve

Vance

will

to proVide the

calculations

used

in this

opinion.

These

recommendatiotis

reflect

waler

quality

standards

perspective only

and

should

not be

construed

being

indicative

all

factors

which have

taken

into consideration

the

permit writer.

RUM :dls. IakehiU

cc:

Wahly

Matsunaga

Jay

Patel

Gregg Good

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

1021

North Grand Avenue

Last,

PC).

Box

19276,

Sprnic.~fle1d,

Illinois

62794-9276’

~..

~e,

Director

MEMORANDUM

-H

—.‘

(..~.,

~.-

Date:

March

1999

MAR

To:

Mike Hayes

From

Bob Mosher

fl/4

——-

~C7~_/?~.vhhf

5ECTION

Subject

Water Quality Based Effluent Limit and Nondegradation Evaluation for

Fox River WRD West STP

NPDES No.

1L0035891

The subjectfacility proposes an expansion ofthe treatment plant from the existing DAF of1.5 MGD

5.0

MGD

DAF.

This

the

first phase of plant

expansion that

may

followed

others

depending on the growth experienced in the service area.

The receiving

stream is

the Fox River

which has a 7Q10 flowvalue of 133

cfs at this location.

The Fox River is not found on the Illinois 303(d) list as published by the Agency on April

1, 1998.

The Fox River is

rated as a

“C” stream under

the Agency’s Biological

Stream Characterization

(BSC) program at this location

The

parameters

forwhich nondegradation issues arise

this

facility are nutrients,

biological oxygen

demand

(BOD)

and

ammonia.

The increased loading ofBOD should not impact aquatic life in the

Fox River.

The expanded facility will be required to meet the BOD

and

TSS effluent standards

established by the IPCB.

These standards are applied consistently

on a state-wide basis

and

have

beenproven to be protective ofdissolved oxygen water quality standards in receiving waters.

The

additional loading ofBOD to the Fox Riveris not expected to cause depletion ofdissolved oxygen

or cause

any

other environmental problem because the prescribed dilution ratio of

5:1

(see

IAC

304.120) is maintained.

Theactual dilution ratio at 7Q10 flowand DAF from the plant is now57:1

and

will be reduced to

17.2:1

after the expansion.

BOD will degrade as the effluent mixes

with

ambientriverwaterand flowsdownstream. Theexpanded plant should cause no discemablechange-

to the quality ofthe Fox River.

The nutrients in the effluent also

should not impact the ability of the receiving stream to support

aquatic life.

The relatively small increase in nutrient loading as a result ofthe expansion will not

cause an increase in algae or othernoxious plant growth. No adverse effectsto the Fox River should

result from the anticipated increase

nutrient loading.

No degradation

anticipated from

this

discharge.

Print,d

Recyc!ed

Paper

Ammonia limits recommended for the expanded plant are given on the attached’ammonia analysis

sheet.

Daily maximum

limits

are

based

the

acute

water quality

standards for ammonia and

downstream pH and temperature values.

Monthly average ammonialimits are based on the existing

limits of

1.5

and 4.0 mg/L, summerand winter, respectively.

The existing FRWRD West plant has

had these values as limits for the past several years.

The plant has met these limits in all but a few

months over the last three years.

The new plant should

also

able

meet

1.5

and 4.0

limits.

While additional mixing

is available in the receiving water, limits higher than

1.5

and 4.0 may not

be applied based on the past performance of

the existing plant.

An increase in ammonialoading will

result from

these limits given the plant expansion.

However, no degradation should occur in the

river given the mixing

present.

A small

mixing

zone

recognized

reduce

monthly average

concentrations to below the chronic water quality standard.

The need for the Fox River WRD West plant expansion

is based on projected population growth.

The population of the service area for the West plant

is currently estimated at

11,664 population

equivalents (PE). Northeastern Illinois Planning Commission (NIPC) projections for the year 2020

are

for 61,271

PE.

Projections

made by

the

City of Elgin

and

the Village of South

Elgin

are

somewhat higher and if the Village ofGilberts

is added

to the service area, another 8,300 PE are

expected

2020.

This

represents a

definite social

need

provide sewage

treatment

for the

projected additional residents.

An additional expansion ofthe West plant will be necessary ifthese

projections come to

pass.

The Illinois

Pollution

Control

Board regulation for Nondegradation found at

Ill.

Adm.

Code

302.105

is currently implemented via a draft Agency guidance document.

Waters not rated as “A”

streams under the BSC system

will be

allowed to receive

new or increased

discharges with the

following provisions: the waterquality

standards are met, there is an economic orsocial need forthe

discharge, best degree oftreatment is attained, and, no ecological alteration ofthe receiving stream

is likely to occur.

the case ofthe expanded Fox River WRD West STP proposed discharge, all

these conditions

are

met.

The proposed discharge

therefore

not

violation of the Board’s

Nondegradationregulation.

Effluent biomonitoring requirements should include

only

the routine once-per-permit cycle testing.

The existing facility has had no toxicityof concernand the expanded plant should not be different.

These recommendations

reflect

water

quality

standards

perspective only

and

should

not

construed as being indicative ofall factors which have to be taken into consideration by the permit

writer.

RGM:prh:foxrwest

cc:

Wally Matsunaga

Jay Patel

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

“N•

1021

NORTH G~NoAVENUE

rAST,

P.O.

Box 19276,

SPRINGFIELD,

ILUNOIs

62794-9276

THot~t~s

SKINNER,

DIRECTOR

MEMORANDUM

r~QQQ

Date:

May

1, 2000

LLL\C~

~C.’JMENTAL

P7iQTEC’~CCPJ

AGENCY

To:

Gary Bingenheimer

BOW/W?C!?~MlT

SECTION

From:

Bob Mosher

/ZW\

Subject:

Water Quality

Based Effluent Limits

and

Nondegradation Evaluation for

Silverleaf

Fox River Resort

NPDES No. 1L0064416

(LaSalle

County

The subject facility proposes an expanded discharge ofdomestic wastewater from the existingDAF of0.015

MGD to 0.225

MGD.

The discharge

to the

Fox River which

has

a 7Q10 flow of 243

cfs at this

location.

The

Fox

River

is not found on the Illinois 303(d) list at this location

as published by the Agency

on April

1998.

The

Fox

River

rated

‘13”

stream

this

location

under

the

Agency’s

Biological

Stream

Characterization (BSC) program.

The

Illinois Natural History

Survey lists the

Fox River as a biologically significant stream at this location.

The

state threatenedriver redhorseand state endangered

greaterredftorseare-residemaccording to the

1992

publication

BiologicallySignificant Illinois Streams.

These species

are knownto utilize the riverin

this

area

well as the neighboring Illinois and Kankakee

Rivers,

Since these are wide ranging species.

is difficult

determine whether the Fox River is a breeding

area, nursery,

feeding

area. etc.. or ifthese

speciesoccupy

the

area forall or

part

ofthe

year.

It isvery likely

that

these speciesare not strictly local residents

but instead

utilize habitats

in the Fox, Illinois and Kankakee Rivers at various seasons.

The increased flow

from

the

Silverleaf

resort should not jeopardize the continued existence of these species in the Fox River.

The

parameters

for which nondegradation issues ariseat this facility are BOD, nutrients and ammonia.

The

increased loading of BOD should not impact aquatic life in the

Fox

River.

The expanded facility will be

required to meet BOD and TSS effluent

standards

established by the

IPCB.

These standards are applied

consistently on a state-wide basis and have been proven to be protective ofdissolved oxygen water

quality

standards in receiving waters.

The

additional

loading of BOD to the Fox River

is not

expected

to cause

depletion of

dissolved

oxygen or

cause

anyother environment-al problem.

BOD will degrade as the effluent

mixes

with

ambient river water and flows downstream.

The expanded plant should cause no discernable

change to the qualityof the Fox River.

No degradation will occur from this discharge.

USEPA is developing national nutrient criteria that will formulate the basis for future

state water quality

standards and

nutrient management strategies.

Upon

promulgation of national

criteria,

state

standards

and

adoption of a management strategy, there may be nutrient reduction requirements imposed on this

source.

GEORGE

Rv,~r.i,

Govrs~oR

r~~u~iw

or~

Rtcycuo

P’~r~

the present time

however, the incremental

nutrient loading

anticipated to result from this project

is not

expected

increase algae or other noxious

plant

growth,

diminish

the

present

aquatic

community or

otherwise aggravate existing stream conditions.

Therefore no

permit

limits for nutrients are

recommended

at this time.

It may be prudent to advise the

perrnittee

that nutrient criteria

are

being developed and nutrient

limitations may be imposed on

this source at some future time.

Ammonia

limits

recommended for

the plant

arc

given

the attached ammonia analysis

sheet.

Daily

maximum and monthly average ammonia limits are based on

the acute and chronic

water

quality

standards

forammonia and downstream pH and

temperature values.

An increase in ammonia loading will result from

the new discharge, however, recommended concentration limits

are lower for the expanded

plant

and this

increase

will

therefore be quite

small.

Given the predictedambient conditions ot’the Fox River near the outfall,

as determined using data collected

AWQMN

station

DT-46

located

the

Fox

River

Dayton,

monthly

average

limits

1.5

mg/L

(summer) and 4.0 mg/L (winter) are appropriate.

The summer andwinter limits are based on 75th percentile

and mixing

using background

ammonia concentrations

from

AWQMN station

DT-38,

Fox River at

Montgomery.

Daily

maximum

limits of 3.0 mgiL

summer

and

meL

\vlnter

are

also recommended,

These limits

retlect

the seasonal acute

water

quainv standards with a zone

ot’ initial dilution.

The need for the expanded plant is based on

the business decisions of the developer or property owner.

economic reason

is therefore presentjustit’ving the decision to build the treatment

plant.

The Illinois Pollution Control Board regulation

for Nondegradanon

found at 35111. Adm. Code

302.105

currently implemented via a draft Agency guidance document.

\Vaters ratedas “B” streams tinder the BSC

system ~vill be allowed to receive new

increased discharges with the

following

provisions:

the water

quality standards are met, there is an economic or social need for the discharge, best degree of treatment is

attained, and, no ecological

alteration of

the

receiving stream is likely to occur.

In the case ot’the proposed

Silverleaf

Fox River Resort discharge. all

these conditions are

met.

The proposed discharge is therefore

not in violation of the Board’s Nondegradation

regulation.

These recommendations

reflect a water quality standards perspective only and should not be construed as

~einv indicative of all factors which have to be

taken ~ntoconsiceration b~’the ~errnit “nier.

Attachment

kabisilverl3

cc:

Jay Patel

Wally Matsunaga

Fox River WRD West

Ammonia Analysis

NPDES#

1L0035891

Date:

March

1999

Receiving Str~am:

Fox River

The

following parameters

were used

in the determination of ammonia water quality

standards and

effluent concentration required to comply

with the water quality standards after

mixing allowances

The methods

used are

in accordance with

the methodologies given

in the proposed

rules filed with

of State and published in the

Illinois Register on

July

17,

1998.

Qe:

The effluent flow

used in the mixing zone and

ZID calculations:

7.7

cfs

CD5

The water quality standard,

terms of total ammonia,

to be

met outside the allowable 2

mixing zone respectively.

These values are

based on

the following un-ionized ammoni~

quality standards:

Acute

Chronic

Summer

0.33

mg/L

0.057 mg/L

Winter

0.14

mg/L

0.025 mg/L

Cus:

Average upstream ammonia

nitrogen concentration from data collected at AWQMN stal

DT-06,

Fox River at Algonquin from January,

1993 through December,

1997

Summer:

0.11

mg/L

Winter:

0.16

mg/L

Ce:

Maximum total ammonia concentration

in the effluent to meet

either the chronic or acuh

and

The values below represent the

75th and 50th (median)

percentile values from data coil

temp:

station

DT-09, Fox

River at South Elgin

from January, 1993 through

December,

1997.

The chronic standards computed below use

median pH and

75th

percentile temperaturt

The acute standards were calculated using 75th

percentile data for both

pH and temper

temp

50th

tile

75th tile

Summer

8.34

8.51

24.4

Winter

8.17

8.37

3.5

(Chronic)

(Acute)

CDs(Qus+Qe)-CusQus

S (CDs

Cus)+Cus

WQS and Effluent Limit Calculations and Recommendatior

Summer

Winter

chmnicwos:

30-day avg.

available

dilution:

Recommended Limit:

0.5

mg/L

2.2

mg/L

1.5

mg/L

1.5

mg/L

7.1

mg/L

4.0

mg/L

Acute

WOS:

laily max.

available

dilution:

Recommended

Limit:

2.1

mg/L

N/A

mg/L

2.1

mg/L

5.3

mg/L

N/A

mg/L

5.3

mg/L

Notes:

Insufficient stream width for allowing discharge-induced mixing at

Stream Width

300

(ft)

diameter of outfall

pipe (d)=

2.25

(ft)

(Mannings n=0.013)

EXHIBIT 4

available

radius for ZID (x):

7.5

(ft)

Qus:

Total

upstream 7010 flow

133

cfs

(from ISWS map of the

Flow available for dilution

33.25

NE IL

Region)

Mass

Balance Equation

(30-day avg.):

Flux Avg.

Dilution Equation (daily max):

0.3(x/d)=

ILLINOIS

ENVIRONMEN lAL

PROTEC lION

AGENCY

1)21

NORTH

(A~o

,\\‘rN~ r

E~~r

,.x

9276.

SrWINO

ELI),

Nt tts

62794-9276

THOMAS

SKINNER.

DIRECTOR

MEMORANDUM

T~O)

Date:

February 4, 2000

To:

Wayne Caughrnan

From:

Bob Mosher

Subject:

Water Quality

Based Effluent Limit

and Nondegradation Evaluation for

Mattoon STP

NPDES No. 1029831

(Coles County)

An expansion ofthe existing activated sludge treatment plant is proposed

for the Mattoon STP to

accommodate growth in the community.

The existing DAF of

4.5

MGD will be expanded to

5.3

MGD.

The

receiving stream is zero cfs

at this location.

KickapooCreek is not found on the Illinois

303(d)

list as publishedby the Agency on April

1998.

Kickapoo Creek is rated as a “B” stream under the Agency’s Biological Stream

Characterization

(BSC) program at this location.

No federal or state threatened or endangered species are known to be present in Kickapoo Creek

according to the IDNR publication

Biologically Sign~JIcant

Illinois Streams.

The parameters for which nondegradation issuesariseat this facilityarenutrients, biological oxygen

demand (BOD) and ammonia,

The increased

loading of BOD should

not impact aquatic life

Kickapoo Creek.

The expanded facility will be required to meet the most stringent BUD and TSS

effluent standards established by the JPCB.

These standards areapplied consistently on a state-wide

basis and have been proven to be protectiveofdissolved

ygenwater-qualitystandards-inreceiving

waters.

The

additional loading of BOD to

Kickapoo Creek is not expected to

cause depletion of

dissolved oxygen or cause any