1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

2 In the Matter of: )

)

3 AMENDMENTS TO 35 Ill. Adm. Code )

302.105; PROPOSED 35 Ill. Adm. ) R01-13

4 Code 303.205, 303.206 and )

35 Ill. Adm. Code 106.990 )

5 through 106.995 )

7 TRANSCRIPT OF PROCEEDINGS had at

8 the hearing of the above-entitled matter, taken

9 stenographically by Cheryl L. Sandecki, CSR,

10 before MARIE E. TIPSORD, Hearing Officer, held at

11 100 West Randolph Street, Illinois, on the 17th

12 day of November, 2000, at the hour of

13 10:00 a.m.

L.A. REPORTING (312) 419-9292

1 PRESENT:

2 HEARING TAKEN BEFORE:

3 Illinois Pollution Control Board

100 West Randolph Street

4 Room 11-500

Chicago, Illinois 60601

5 (312) 814-4825,

BY: MS. MARIE E. TIPSORD

ALSO PRESENT: MR. G. TANNER GIRARD

8 MR. RONALD FLEMAL

MR. NICHOLAS MELAS

9 MR. SAMUEL T. LAWTON, JR.

MS. MARILI McFAWN

10 MS. ALISA LIU

11 ALSO VARIOUS MEMBERS OF THE PUBLIC WERE PRESENT

L.A. REPORTING (312) 419-9292

1 HEARING OFFICER TIPSORD: Good morning. My

2 name is Marie Tipsord, and I have been appointed

3 by the Board to serve as a hearing officer in this

4 proceeding entitled In The matter of Revisions to

5 Antidegradation Rules: 35 Ill Admin. Code

6 302.105, 303.205, 303.206 and 106.990 through

7 106.995. This is docketed as R01-13.

8 To my immediate right is Dr. Tanner

9 Girard, who is the lead board member assigned to

10 this matter. To his immediate right is Nicholas

11 Melas, who also has been assigned to this. And at

12 the far left is Dr. Ronald C. Flemal, who has also

13 been assigned to this matter.

14 In addition, with us today, we have

15 Samuel Lawton. And to my immediate left, Alisa

16 Liu, a member of your technical unit who will be

17 assisting us in preparing a record in this

18 rulemaking.

19 The purpose of today's hearing is to

20 hear the prefiled testimony that was prefiled for

21 the hearing. The Illinois Environmental

22 Protection Agency prefiled the testimony of Toby

23 Frevert. We will begin with Mr. Frevert and then

24 allow questions to be asked of the Agency.

L.A. REPORTING (312) 419-9292

1 In addition, testimony was filed by

2 Albert Ettinger on behalf of seven individuals.

3 After we have finished with the Agency's

4 presentation, we will proceed with those seven

5 individuals and have questions after each of them

6 has testified.

7 As the prefiled testimony is not

8 lengthy, we will have the testimony read into the

9 record. Anyone may ask a question. However, I do

10 ask that you raise your hand, wait for me to

11 acknowledge you. After I have acknowledged you,

12 please state your name and who you represent

13 before you begin your questions. Please speak one

14 at a time. If you are speaking over each other,

15 the court reporter will not be able to get your

16 questions on the record.

17 Please note that any questions asked by

18 a board member or staff are intended to help build

19 a complete record for the Board's decision and not

20 to express any preconceived notions or bias.

21 Additionally, as time permits, we will

22 also allow anyone who wishes to testify the

23 opportunity to do so at the close of prefiled

24 testimony. I have placed a list at the side of

L.A. REPORTING (312) 419-9292

1 the room for persons who wish to testify today to

2 sign up.

3 Also at the side of the room are sheets

4 for people who wish to be added either to the

5 Board's notice or service list. If you wish to be

6 on the service list, you will receive all

7 pleadings and prefiled testimony in this

8 proceeding. In addition, you must serve all of

9 your filings on the persons on the service list.

10 If you wish to be on the notice list, you will

11 receive all Board and hearing officer orders in

12 this rulemaking. If you have any questions about

13 which list you should be on or would like to be

14 on, please ask me at a break.

15 There are also copies of the current

16 service and notice list at the back of the room

17 and a few copies of the Board's order accepting

18 this rulemaking.

19 At this time I would also like to note

20 that it has been indicated to me that there are

21 people who wish to testify at the second hearing

22 scheduled in December. Therefore, later on in

23 this hearing, we will set a prefiling deadline for

24 that hearing in addition to the one we have

L.A. REPORTING (312) 419-9292

1 already been through.

2 I also have been asked, since this is a

3 Friday and it is snowing, although not much, how

4 long we plan to go today. My answer to that is I

5 do know the Agency has got flights and trains at

6 5:00 o'clock. I hope we can accommodate that.

7 But I also hesitate to short circuit any of the

8 discussion or dialogue. Mr. Ettinger?

9 MR. ETTINGER: Albert Ettinger. I would

10 state too in terms of your scheduling, Mr. Moore,

11 who is one of my prefiled packages, is not

12 planning on testifying today, but rather in

13 Springfield. So that might shorten us up a little

14 today.

15 HEARING OFFICER TIPSORD: Wonderful. Thank

16 you for that.

17 At this time I would like to ask

18 Dr. Girard if he would like to make some opening

19 comments.

20 MR. GIRARD: Good morning. On behalf of the

21 Board, I would like to welcome everyone to this

22 hearing on the Agency's proposal to update and

23 clarify the water quality standards for Illinois.

24 Specifically, the proposal which revises the

L.A. REPORTING (312) 419-9292

1 state-wide nondegradation policy regarding water

2 quality standards and establishes procedures for

3 implementation. Parts of the updating include

4 replacing the term nondegradation with the more

5 widely-used term antidegradation.

6 What we are discussing today is one of

7 the earliest environmental protection concepts

8 established by this Board. The concept of

9 nondegradation first appeared in Board opinions

10 almost 30 years ago. I should note for the record

11 that we have a couple of individuals in this

12 proceeding who may have actually voted on some of

13 those early opinions. Current board member Sam

14 Lawton served a term in the early years of the

15 Board and then after leaving for private practice

16 came back last year for an additional term.

17 Also I note in the audience we have

18 Dick Kissel, who is a member of those early

19 boards. And so if you have any questions of a

20 historical perspective, privately you may want to

21 ask them outside of the proceeding.

22 We appreciate the considerable work

23 reflected in this proposal, including the numerous

24 meetings of the antidegradation workshop during

L.A. REPORTING (312) 419-9292

1 the last two years. We realize that there are

2 substantial issues to decide in this proceeding,

3 so we look forward to your testimony and

4 questions. Thank you.

5 HEARING OFFICER TIPSORD: Thank you,

6 Dr. Girard. Mr. Melas or Mr. Flemal, would you

7 like to make a statement at this time?

8 MR. MELAS: I have nothing further to add.

9 HEARING OFFICER TIPSORD: Then at this time I

10 would ask if the Agency has an opening statement.

11 MS. TONSOR: I have an opening statement. It

12 is brief.

13 My name is Connie Tonsor and I am an

14 attorney with the Illinois Environmental

15 Protection Agency here representing the Agency in

16 this rulemaking package. I have with me Mr. Toby

17 Frevert, who is the -- as many of you know the

18 Bureau of Water Standards Development Manager, and

19 he is also our coordinator of the Great Lakes

20 Program.

21 Mr. Frevert prefiled testimony and will

22 be the primary witness for the agency. Hopefully,

23 sometime this morning Tom McSwiggin, our permits

24 manager, will also be able to attend the hearing.

L.A. REPORTING (312) 419-9292

1 Mr. McSwiggin is going to be available if

2 questions arise concerning the use of the general

3 permit in the antideg demonstration proceedings,

4 as there were several concerns in the prefiled

5 testimony on this issue.

6 Also Mr. Dave Pfeiffer with the United

7 States Environmental Protection Agency is here.

8 Mr. Pfeiffer was very helpful in the development

9 of this proposal and will be available to answer

10 questions concerning the background and the

11 federal impact on the antidegradation water

12 quality standard.

13 As the Board mentioned, the concept of

14 nondegradation existed in Illinois for many years.

15 Approximately two, two and a half years ago, the

16 Agency identified a need to revisit the

17 nondegradation standard with the goal of proposing

18 amendments that would revise it as needed. In an

19 effort to do this in a transparent fashion and in

20 a fashion that we hope would present a balanced

21 approach for the Board, we organized a meeting and

22 set up a workgroup of various individuals and

23 representative groups.

24 The workgroup had industry and

L.A. REPORTING (312) 419-9292

1 environmental groups and initially considered

2 regulatory proposals from several different

3 states, including Ohio, Wisconsin, Wyoming,

4 Colorado and Montana. It utilized the Water

5 Quality Standards Handbook and other guidance and

6 the federal regulation in discussing the instant

7 proposal. And we tried to make a proposal that

8 would be consistent with the federal standard

9 found at 40 CFR 131.12.

10 Several drafts of language went around

11 the workgroup and were considered by it. Finally,

12 in August of this year, the Agency proposed the

13 instant amendments to the Board. At the

14 conclusion of the workgroup process, the Agency

15 and the other members of the workgroup recognized

16 that the proposal wasn't going to be a perfect

17 proposal that met everybody's needs. And we

18 agreed to disagree before the Board if that was

19 necessary.

20 However, the Agency's position is that

21 the proposal is a well-balanced approach.

22 Mr. Frevert, as I indicated, will discuss specific

23 language in the regulation as needed.

24 As a note, the Agency recognizes that

L.A. REPORTING (312) 419-9292

1 the proposal will need an amendment and will be

2 offering that amendment soon before the December

3 hearing. The Agency is going to suggest a

4 revision so that we can acknowledge the general

5 permit under Section 404 of the Clean Water Act

6 process as an area which would be not necessary

7 for an individualized antidegradation

8 demonstration. Mr. Frevert is also available to

9 discuss that.

10 Finally, on behalf of myself, the

11 Bureau of Water, and Tom Skinner, the director of

12 the Agency, we want to thank the members of the

13 workgroup who assisted in the process of revising

14 this regulation and formulating the proposal and

15 also to thank the Board for its prompt

16 consideration of the matter. That concludes my

17 remarks.

18 HEARING OFFICER TIPSORD: At this time then

19 could we swear in Mr. Frevert?

20 (Whereupon Mr. Toby Frevert

21 was sworn into the record.)

22 HEARING OFFICER TIPSORD: Whenever you are

23 ready to proceed.

24 MR. FREVERT: Do you me to read this?

L.A. REPORTING (312) 419-9292

1 HEARING OFFICER TIPSORD: Yes, please.

2 MR. FREVERT: I assume everybody has a copy.

3 So if you have trouble hearing me, at least you

4 can follow it that way.

5 My name is Toby Frevert and I am

6 manager of the Standards Development Program and

7 the Great Lakes Program within the Bureau of Water

8 of the Illinois EPA. I have been with the Agency

9 in excess of 20 years. The Standards Program is

10 responsible for the review of water quality

11 standards and the development of proposal for

12 revisions to those standards when revision is

13 necessary.

14 Since 1998, I have been the chairman of

15 the workgroup established to review the

16 antidegradation policy and regulations and have

17 worked with the members of the group to formulate

18 the instant proposal. My testimony will contain

19 three sections. First, I will discuss the

20 background concerning development of the proposal.

21 Second, I will discuss the antidegradation concept

22 in the context of the Board's regulations and the

23 standard established at 40 CFR 131.12, which is

24 the federal guidance for antidegradation. Third,

L.A. REPORTING (312) 419-9292

1 I will discuss the Illinois EPA's proposal for the

2 Board's water quality standard and the Illinois

3 EPA implementation procedures.

4 The developmental process, the Federal

5 Water Pollution Control Act, 33 United States

6 Code, Sections 1251 through 1387, is commonly

7 known as the Clean Water Act. Pursuant to the

8 Clean Water Act, states are required to revise and

9 update their water quality standards to ensure

10 that they are protective of public health and

11 welfare, enhance the quality of the water and

12 promote the purposes of the Clean Water Act. The

13 process of reviewing the state's standards is

14 called the triennial water quality standards

15 review. The antidegradation policy and procedures

16 were one element of the Illinois EPA's current

17 trennial water quality standards review.

18 In 1998, the Agency established an

19 antidegradation workgroup. The workgroup

20 contained members of the Illinois Attorney

21 General's Office, the Illinois Department of

22 Natural Resources, the United States Environmental

23 Protection Agency, the Illinois Environmental

24 Regulatory Group, the Chemical Industry Council,

L.A. REPORTING (312) 419-9292

1 the Sierra Club and individuals representing

2 municipalities, industries and law firms.

3 The Agency's purpose in establishing

4 the workgroup was to provide an open rulemaking

5 process in which all views could be considered and

6 the needs of each group balanced in the

7 formulation of a workable regulation. The

8 workgroup met eight times and considered many

9 different drafts of antidegradation standards and

10 several different mechanisms for implementation of

11 antidegradation concepts. The Agency believes

12 that the resulting proposal presents a

13 well-balanced approach. The present proposal

14 includes many of the suggestions of the workgroup

15 and benefited from the contribution of its various

16 members.

17 The antidegradation concept, the

18 concept that the waters of the state need to be

19 protected from unnecessary deterioration, is a

20 long-standing environmental goal in the state. It

21 existed prior to the passage of the Illinois

22 Environmental Protection Act, 415 Illinois

23 Consolidated Standards, Section 5, and the

24 creation of the Illinois Pollution -- Illinois

L.A. REPORTING (312) 419-9292

1 Environmental Protection Agency and the Pollution

2 Control Board. The Board adopted the concept of

3 nondegradation in 1972. The regulation was

4 R71-14.

5 Although the standards have been

6 codified since its adoption, its language has

7 stayed essentially the same. The purpose stated

8 by the Board in adopting the standard was to

9 preserve the present prohibition of unnecessary

10 degradation of waters presently of better quality

11 than that required by the standards, recognizing

12 that the standards represent not the optimum of

13 water quality, but the worst we are prepared to

14 tolerate if economic considerations so require. I

15 believe that is from the adopted hearing or

16 adoptive opinion in R71-14.

17 Currently, Section 302.105 applies when

18 existing water quality is better than the

19 established standards as of the date of those

20 standards' adoption. After a water body reaches a

21 quality above the established standards, the

22 existing quality must be maintained. The federal

23 antidegradation regulation, 40 CFR 131.12, sets

24 forth an antidegradation policy that with water

L.A. REPORTING (312) 419-9292

1 quality based and technology based effluent limits

2 is a tool to ensure that the objective of the

3 Clean Water Act is to restore and maintain the

4 chemical, physical and biological integrity of the

5 nation's waters is achieved in Illinois. Each

6 state must develop, adopt and retain a statewide

7 antidegradation policy regarding water quality

8 standards and establish implementation procedures

9 that are consistent with the components of the

10 federal guidance, 40 CFR 131.12. That is the

11 Water Quality Standards Handbook, Second Edition.

12 The Illinois EPA's proposal, this

13 proposal is actually very specific and limited.

14 It deals with only one issue, the update and

15 clarification of the existing nondegradation

16 standard, apparently at 35 Illinois Administrative

17 Code 302.105. The proposed language parallels

18 federal regulations for the inclusion of

19 antidegradation provisions within state water

20 quality standards. The federal regulations found

21 at 40 CFR 131.12 and federal guidance specify that

22 an antidegradation standard views a state's

23 surface water resources in three general

24 categories.

L.A. REPORTING (312) 419-9292

1 Those categories include water whose

2 current conditions are not particularly good, a

3 category referred to as Tier 1 in the federal

4 guidance; waters of high quality referred to as

5 Tier 2 in the federal guidance; and the third

6 category is waters of exceptionally high quality

7 referred to as Tier 3 waters in the federal

8 guidance.

9 In the Agency's proposed language for

10 Section 302.105, subparagraph (a) contains

11 requirements for all waters and is the fundamental

12 basis for the Tier 1 waters. It provides that

13 existing uses actually attained in the water

14 body must be maintained and protected. It should

15 be noted that the proposal protects the existing

16 uses, rather than designated uses in the water

17 body. This provision corresponds to 40 CFR

18 131.12(a)(1).

19 Section (b) -- Section 302.105(b)

20 contains supplemental requirements for Tier 3

21 waters. Tier 3 waters are those high quality

22 waters that have been designated as outstanding

23 resource waters. Section 302.105(b) corresponds

24 to 40 CFR 131.12(a)(3).

L.A. REPORTING (312) 419-9292

1 Section 302.105 contains supplemental

2 requirements for Tier 2 waters. Tier 2 waters are

3 those waters whose existing quality exceeds

4 established standards. This section, Section

5 302.105(c), corresponds to 40 CFR paragraph

6 131.12(a)(2). Collectively, these three

7 paragraphs establish the substantive requirements

8 of an antidegradation standard. Those

9 requirements are a combination of actual

10 prohibitions and less sharply defined policy to

11 avoid or minimize effects of activities upon the

12 water resource.

13 The prohibitions are relatively

14 straight forward. Prohibitions are no loss of

15 existing uses in Section 302.105(a), and no

16 lowering of water quality in exceptionally high

17 quality or outstanding resource waters in Section

18 302.105(b).

19 The remaining requirements are not

20 prohibition per se. Section 302.105(c) allows

21 some extent of degradation of high quality waters

22 when it is necessary to accomplish other goals in

23 the realm of social and economic needs of the

24 community. I might point out at this time that is

L.A. REPORTING (312) 419-9292

1 one of the main areas that we are recommending the

2 language be changed from nondegradation to

3 antidegradation. It is not a prohibition. It is

4 a discouragement.

5 The provisions of 40 CFR 131.12(a)(2)

6 state that the quality of the water shall be

7 maintained and protected unless the State finds

8 that allowing lower water quality is necessary to

9 accomplish important economic or social

10 development in the areas in which the waters are

11 located. A significant aspect of this principal

12 is that the determination of justifiable

13 degradation must include a public notice and

14 participation element. Additionally, the State

15 must ensure that no water quality or -- no lower

16 water quality or degradation renders the water

17 quality inadequate to fully protect existing uses.

18 Section 302.105(c)(2) states that the basic

19 requirements of 40 CFR 131(a)(2) must be found

20 prior to allowing a lowering of water quality in

21 high quality waters.

22 To accomplish this fundamental tenant

23 of the federal criteria requirements, the Agency

24 is proposing that activities subject to prior

L.A. REPORTING (312) 419-9292

1 approval through Clean Water Act permitting

2 programs, and those two permitting programs are

3 NPDES program and the State's 401 certification of

4 404 Corps of Engineers Permits, which demonstrate

5 that the proposed lowering of water quality meets

6 the requirements set forth in Section 302.105(c)

7 and the corresponding federal criteria by

8 completing the necessary demonstration as a part

9 of the permit application and review process.

10 The Agency has attached as an exhibit

11 to this rulemaking its proposed procedures,

12 proposed 35 Illinois Administrative Code Part 354,

13 to implement the Board's standard during Illinois

14 EPA's administration of the permit programs.

15 We believe it is important to identify

16 upfront how the Agency intends to operate this

17 administrative responsibility. And that proposed

18 set of procedures is there to make available to

19 permit applicants and other interested parties the

20 process that we think we would follow. And

21 indeed, if we -- this gets adopted and we go ahead

22 and codify those rules, we would be obligated to

23 enforce those rules.

24 The Illinois EPA's proposal in

L.A. REPORTING (312) 419-9292

1 Section 302.105(d) includes a listing of

2 categories of activities that will not be subject

3 to an individual demonstration to determine

4 compliance with the antidegradation standard.

5 These are categories of activities that the Agency

6 proposes the Board determine comply with the

7 substance and intent of the standard through

8 adoption of this language without performance of

9 individual demonstrations. The Agency is not

10 proposing that these activities are exempt from

11 the standard, rather it is proposing that in

12 adopting this particular section the Board will

13 have made a generic determination that these

14 activities are compatible and compliant with the

15 intent of the standard. The rationale for this is

16 that these categories of activities are

17 essentially subject to similar types of reviews

18 under other regulatory provisions, and a separate

19 demonstration would constitute an unnecessary and

20 burdensome redundancy.

21 Section 302.105(e) is simply a

22 cross-reference to clarify that additional

23 antidegradation standards currently exist for the

24 Lake Michigan basin and are located elsewhere in

L.A. REPORTING (312) 419-9292

1 the Board's regulations.

2 This proposal also contains additions

3 to 35 Illinois Administrative Code Part 303, which

4 is the Board's use designation area, to create a

5 new water use designation. Proposed Section

6 303.205 establishes the exceptionally high quality

7 or outstanding resource water classification.

8 Additionally, the Agency's proposes reserving

9 Section 303.206 as the location within their

10 regulations to list any waters that may be so

11 classified in the future. The Agency is not

12 proposing the designation of any specific waters

13 as outstanding resource waters today. The Agency

14 believes that such designations should be fully

15 considered by the Board in a rulemaking devoted to

16 that specific purpose.

17 However, the Agency is proposing the

18 procedures that it recommends that the Board

19 establish for receiving and considering proposals

20 for classification of a water body as an

21 outstanding resource water. These procedures are

22 proposed as 35 Illinois Administrative Code

23 106.990 through 106.995. In proposing the

24 procedure rules, the Agency was mindful that the

L.A. REPORTING (312) 419-9292

1 Board must strike a balance between the need for

2 an open regulatory process and the need to ensure

3 that those who seek to designate a water body as

4 an outstanding resource water establish that the

5 water is of exceptional quality.

6 This concludes my prefiled testimony.

7 I am here today to supplement this testimony and

8 be available for questions both today and

9 throughout the rest of the proceeding.

10 HEARING OFFICER TIPSORD: Thank you very

11 much. Just a couple of clarification points. You

12 talked about the Water Quality Standards Handbook.

13 Was that attached to the proposal as submitted to

14 the Board?

15 MR. FREVERT: I believe it is part of the

16 petition.

17 MS. TONSOR: It was.

18 HEARING OFFICER TIPSORD: Okay. Secondly,

19 you talked about the Agency's proposed rules at

20 Part 354. The specific reasons you indicated it

21 is in the second notice with these, and -- but you

22 talked about not having codified them as yet. And

23 my question is where are these in the process?

24 Have they been proposed for first notice?

L.A. REPORTING (312) 419-9292

1 MR. FREVERT: No, they have not. These are

2 procedures available to help participants in this

3 hearing process understand how the Agency actually

4 intends and thinks we are capable of administering

5 this program. If and when it becomes evident that

6 a new antidegradation standard will be adopted by

7 the Board, we will proceed with the adoption

8 process for those procedures. Those procedures

9 are based on a Board standard and they were

10 drafted with the premise that what we are

11 proposing will become a Board standard.

12 HEARING OFFICER TIPSORD: And those will be

13 Agency regulations and not Board regulations,

14 correct?

15 MR. FREVERT: Those are operating procedures

16 to help permit applicants and the public to

17 understand how we view the standard, the type of

18 information and the type of review we intend to

19 undertake.

20 HEARING OFFICER TIPSORD: And so they are not

21 actually a part of this proposal, but just

22 information?

23 MR. FREVERT: It is an informational

24 material, that's correct.

L.A. REPORTING (312) 419-9292

1 HEARING OFFICER TIPSORD: Thank you. At this

2 time I would open it up then for anyone else who

3 has questions. Ms. Hodge?

4 MS. HODGE: My name is Katherine Hodge, and I

5 am with the law firm Hodge & Dwyer in Springfield,

6 Illinois. I am here today representing the

7 Illinois Environmental Regulatory Group. Also

8 with me today is Deirdre K. Hirner, who is the

9 executive director of IERG, which is short for

10 Illinois Environmental Regulatory Group, and Harry

11 Walton, who is a consultant to the group.

12 IERG is a not-for-profit Illinois

13 corporation, and we are composed of 68 member

14 companies engaged in industry, commerce,

15 manufacturing, agriculture, trade, transportation

16 or other related activities in which persons,

17 entities or businesses are regulated by such

18 government agencies which promulgate, administer

19 and enforce environmental laws, regulations, rules

20 and policies.

21 As many of you here know today, IERG is

22 organized to promote and advance the interests of

23 its members before governmental agencies such as

24 the Illinois EPA and the Illinois Pollution

L.A. REPORTING (312) 419-9292

1 Control Board. And IERG is an affiliate of the

2 Illinois State Chamber of Commence. The state

3 chamber has more than company members within the

4 state of Illinois.

5 IERG appreciates the opportunity to

6 participate in this proceeding, and we do intend

7 to offer testimony at the December 6th hearing, in

8 Springfield. Today we have a few questions for

9 Mr. Frevert related primarily to the background of

10 the Agency's proposal, as well as to try to

11 clarify the Agency's intent and the various

12 processes in the proposal.

13 Mr. Frevert, you just testified that

14 the Agency's proposal deals with an update and

15 clarification of the Board's current

16 nondegradation standard found at Section 302.105.

17 And Ms. Tonsor indicated in her statement that the

18 Agency had identified a need to update this for

19 approximately two, two and a half years. Could

20 you please explain why the Agency believes the

21 standard needs to be updated and clarified?

22 MR. FREVERT: Yes, I think I can. This

23 nondegradation standard has been on the books for

24 some 30-plus years. Quite frankly, the first 15

L.A. REPORTING (312) 419-9292

1 years the standard was probably totally ignored.

2 Subsequent to that, we sort of evolved into a

3 process where we would implement an

4 antidegradation program into our day-to-day

5 permitting activities.

6 Certain groups, environmental activists

7 were concerned. I think perhaps industry was

8 concerned as well at the way we went about that

9 implementation. It was not well enough understood

10 and not an open enough process. The upshot of all

11 of this was we progressed to the point where our

12 program was viewed inadequate to the point that

13 there was a threat of a lawsuit, threat to sue the

14 United States Environmental Protection Agency for

15 allowing Illinois to operate the program

16 inconsistent with the Clean Water Act.

17 In response to that, we made a

18 commitment, both the USEPA and some other parties,

19 a program planning commitment, that we would

20 review the antidegradation program and we would

21 produce implementation procedures for the issuance

22 of the NPDES program under our authority. We

23 would adopt those and submit those for federal

24 blessing or federal approval.

L.A. REPORTING (312) 419-9292

1 In the process of doing that, we

2 assembled a workgroup and sort of went through a

3 rampup process of bringing everybody up to speed

4 in addressing those deficiencies and reviewing

5 those program requirements at the federal level in

6 the light of what we needed to do in Illinois.

7 And one of the first conclusions perhaps we

8 reached in that process was that not only was our

9 implementation program less than ideal, but the

10 standard itself is probably outdated and needs to

11 be updated to be more consistent with the current

12 federal requirements. That is the basis for the

13 proposal today and why we are here.

14 MS. HODGE: You mentioned the threat of

15 litigation and that then the Agency made a

16 commitment. Was there any kind of a formal

17 settlement agreement?

18 MR. FREVERT: My understanding -- we made a

19 commitment to the United States Environmental

20 Protection Agency that we would incorporate this

21 requirement into our yearly activities as part of

22 our -- essentially part of our operating program,

23 our permit delegation and also the grant monies we

24 received to operate from.

L.A. REPORTING (312) 419-9292

1 My understanding was that parties that

2 had threatened the litigation believed there was

3 enough action and progress on the part of the

4 state that they did not proceed with any legal

5 action beyond the notice. And I guess you could

6 say the actual litigation was avoided because of

7 the State's desire and the decision to respond and

8 proceed with this project.

9 MS. HODGE: Thank you. I note that the

10 Agency's proposal was not filed as a federally

11 required rule. So is it the Agency's position

12 that this proposal is not required by the USEPA?

13 MR. FREVERT: I am not sure I can answer the

14 question of why it was not filed as a federally

15 required rule. But I can testify that it is a

16 federally required rule.

17 We clearly need an antidegradation

18 program in our water quality standards, which are

19 mandated by the Clean Water Act. And we clearly

20 need an implementation procedure to protect the

21 NPDES permit for the nondegradation.

22 MS. HODGE: To follow up on that, did the

23 USEPA ever notify the Agency in writing that the

24 non -- that the Board's nondegradation standard

L.A. REPORTING (312) 419-9292

1 was inadequate?

2 MR. FREVERT: I am not sure I can give you a

3 direct answer on that. I know that there has been

4 a long -- a long on-going dialogue with the USEPA

5 and the state agency and annual performance review

6 and performance partnership deliberation sessions.

7 And I know it was obvious that that was a

8 deficiency they viewed was overdue and that needed

9 to be raised and a priority they dealt with in

10 that time frame. And as such that commitment was

11 made in our performance partnership documents.

12 But I can't tell you I have gone back

13 to the record and looked for a letter that

14 specifically said we had to do that on date

15 certain.

16 MS. HODGE: Could you please describe for us

17 the implementation procedures that the Agency

18 currently uses to implement the Board's existing

19 nondegradation standard?

20 MR. FREVERT: That process has evolved, and

21 it has evolved substantially in the last several

22 years with the increased public attention. We

23 don't have a written procedure per se. As a

24 permit application comes in, a review starts, if

L.A. REPORTING (312) 419-9292

1 it is identified that that particular application

2 is needing or requesting an increased load in a

3 regulated parameter, that triggers an internal

4 review by part of the Agency's staff.

5 That review is usually based on the

6 application materials received with the permit

7 application, any file information that we have,

8 any specific knowledge of the facility and the

9 receiving water body and the general environmental

10 conditions in the vicinity of the proposed

11 activity. And as that information is gathered and

12 reviewed, if it is deemed adequate for us to

13 determine that this is a request that is

14 consistent, I believe, with the intent and the

15 nature, spirit of the program, we will draft

16 documentation to that effect, including the

17 rationale for that, public notice that

18 information, so it is available for public review

19 and reaction during the permit of the public

20 notice stage.

21 If it is not adequate, we usually get

22 on the telephone or write a letter and call up the

23 permit applicant and say we don't believe there

24 was enough information and you may have to deal

L.A. REPORTING (312) 419-9292

1 with the issue in study A or study B and come in

2 and sit down and say how we acquired the

3 additional information which we believe may be

4 necessary.

5 It is pretty much an ad hoc process at

6 the present time. Although, quite honestly, it

7 has evolved. And I would say almost on a yearly

8 basis for the last 15 years we recognized and had

9 the importance of this particular aspect of the

10 permit review thrust upon us more and more, and we

11 are responding accordingly.

12 MS. HODGE: Thank you. Would you say that

13 the Agency's current procedures are consistent

14 with the federal antidegradation policy found at

15 40 CFR Part 131.12?

16 MR. FREVERT: I believe our day-to-day

17 activities are generally consistent with those

18 requirements. I don't believe our day-to-day

19 activities are adequately documented in writing

20 for a formal submittal or approval and

21 corroboration of that opinion on the part of the

22 USEPA yet, and that is the part of this intent of

23 this procedure, is to get -- get those review

24 activities, those aspects of this particular

L.A. REPORTING (312) 419-9292

1 federal requirement better defined so they can be

2 submitted for formal approval and hopefully

3 eliminate any potential exposure we have to not

4 implementing that procedure.

5 MS. HODGE: Could you please describe how the

6 proposed Part 354 procedures differ from the

7 antidegradation procedures currently used by the

8 Agency that you just described?

9 MR. FREVERT: From one thing they are written

10 down. That is probably the biggest difference.

11 As I said, we are pretty much operating on an ad

12 hoc basis at the present time.

13 HEARING OFFICER TIPSORD: Excuse me,

14 Mr. Frevert, before you answer on Part 354, I want

15 to say again Part 354 is not a part of the

16 Agency's proposal before the Board. So before we

17 get into too much on Part 354, I am going to ask

18 if you can explain, Ms. Hodge, why you think it is

19 relevant to this proceeding.

20 MS. HODGE: Certainly, I will be glad to do

21 that. Because I understand that it is not part of

22 the proposal before the Board, however, the Agency

23 has submitted it to the Board as evidence of how

24 it intends to implement the proposed revisions if

L.A. REPORTING (312) 419-9292

1 the Board goes forward with the Part 302

2 modifications. And I guess my question to

3 Mr. Frevert is, we are trying to understand --

4 what the regulated community is trying to

5 understand is this a big change from what the

6 agency -- how they currently conduct the

7 antidegradation. So that is the intent.

8 HEARING OFFICER TIPSORD: Okay. Thank you.

9 Go ahead.

10 MR. FREVERT: I think in direct response to

11 that, I think, probably the largest individual

12 change in the way we operate -- the single largest

13 one is this contains a commitment on the part of

14 the Agency as to how we intend to document and

15 make available for public review, public scrutiny

16 the thought process and the considerations and the

17 factors we considered in determining whether or

18 not any particular permitted activity does or does

19 not meet the intent of the federal and state

20 antidegradation policy.

21 At the present time I don't believe we

22 have any documentation out there that commits and

23 binds the Agency to what is a fundamentally

24 significant component of antidegradation, and that

L.A. REPORTING (312) 419-9292

1 is the public participation, how we intend to

2 accomplish that. The perception or the

3 underpinnings of this whole program is that

4 additional -- that residual capacity of the stream

5 to accept waste is, indeed, a public resource.

6 And if that public resource is allocated to an

7 individual entity, then there ought to be some

8 public role playing in the allocation of that

9 resource to that individual entity and there ought

10 to be some indication of why that is generally

11 consistent with the good of the public at large.

12 MS. HODGE: When the Agency suggests its

13 antidegradation reviews currently, do you -- does

14 the Agency reduce its determination to a writing?

15 MR. FREVERT: Yes, we do.

16 MS. HODGE: And would that part of the NPDES

17 permit file for a particular facility?

18 MR. FREVERT: Yes, it is.

19 MS. HODGE: Is there any reference made to

20 the antidegradation in the draft permit?

21 MR. FREVERT: I believe the reference made to

22 the antidegradation review would be in the

23 accompanying fact sheet, not a permit per se. But

24 it is in quite of the public notice materials.

L.A. REPORTING (312) 419-9292

1 MS. HODGE: So the draft permit, the fact

2 sheet would be public notice currently so that the

3 public would have an opportunity to see that the

4 Agency had made an antidegradation review?

5 MR. FREVERT: That's correct. If we get a

6 permit application, I think everybody accepts and

7 understands in reality that it is our job to make

8 sure proper standard is complied with, the DO

9 standard or anything else. And those have been

10 around for a while. There is a fairly simple,

11 usually an analytical or calculation process we go

12 through to demonstrate this particular discharge,

13 whether it would be a copper standard or a lead

14 standard.

15 I believe we are suggesting this is a

16 process to accomplish the same thing for an

17 antidegradation standard, how we evaluate that

18 activity against that standard and how we

19 determine whether or not it is compliant, and if

20 any modifications to the operation are necessary,

21 to make it compliant.

22 MS. HODGE: If a member of the public during

23 the public notice period, a member of the public

24 asks the Agency to provide a copy of this written

L.A. REPORTING (312) 419-9292

1 antidegradation review determination, would the

2 Agency provide that to the public?

3 MR. FREVERT: Certainly.

4 MS. HODGE: Mr. Frevert, can you please

5 tell us how many -- approximately how many

6 antidegradation reviews the Agency has conducted

7 in the past five years or so? And I say in the

8 past five years or so, since perhaps January 1 of

9 1995.

10 MR. FREVERT: I should be able to. I want to

11 say in excess of 100 per year. And I know the

12 numbers were generated by my staff or someone who

13 issues permits. Those numbers were available.

14 That is the best of my recollection, is it was in

15 that range.

16 MS. HODGE: Could the Agency provide a list

17 of those permit actions for which it performed

18 antidegradation reviews to the Board?

19 MR. FREVERT: I think we probably can. I

20 can't personally, but I believe one of my staff

21 maintained the list of that, yes.

22 HEARING OFFICER TIPSORD: Just to clarify, do

23 you want that from January of 1995?

24 MS. HODGE: Yes.

L.A. REPORTING (312) 419-9292

1 MR. FREVERT: Just to clarify, we will do our

2 best to honor that intent. I don't know if it

3 goes back to January 1995. We will get you what

4 we have.

5 MS. HODGE: Thank you. How many of these

6 antidegradation reviews have been reviewed or

7 commented upon by USEPA?

8 MR. FREVERT: More than zero. I can't give

9 you a number.

10 MS. HODGE: Does the USEPA comment on every

11 antideg review?

12 MR. FREVERT: No. We -- unfortunately, Tom

13 is not here. Maybe he had travel plans. He can

14 give you -- travel trouble.

15 We have an operating relationship with

16 the USEPA where they don't review every individual

17 permit that we issue. They do some auditing level

18 reviews, and there may be specific permits that

19 are called to their attention and they are

20 specifically asked to review. But as a matter of

21 course, the federal government doesn't duplicate

22 our work. We are the delegated NPDES authority,

23 and that means we do the lion's share of the work

24 and they do some auditing level reviews. They

L.A. REPORTING (312) 419-9292

1 don't review everything that we produce.

2 MS. HODGE: So you don't provide every single

3 draft permit to the USEPA?

4 MR. FREVERT: We may provide it to them and

5 they may file it, they don't review them.

6 MS. HODGE: The permitting matters that USEPA

7 has commented upon, could you give us just a

8 general idea of the nature of their comments as it

9 would relate to the Agency's antidegradation

10 review?

11 MR. FREVERT: Some specific permits that have

12 come up recently, there have been questions

13 regarding the adequacy of the antidegradation

14 review and they have asked for some consideration

15 of additional issues and maybe suggested

16 alternative ways of handling that application and

17 perhaps all of their implement requirements.

18 I can think of one specific case that

19 we are currently working on, and I believe there

20 are a couple more recent. But in that regard,

21 their review comments aren't a whole lot different

22 from the antidegradation perspective as they are

23 from that issue. If there is something of

24 interest to them or something that may call their

L.A. REPORTING (312) 419-9292

1 attention to something that is controversial, it

2 usually means their comments asked for some

3 additional assessment or evaluation of

4 documentation. Occasionally, they may even

5 specifically demand a certain course of action,

6 although that is not common.

7 MS. HODGE: Has the USEPA ever taken formal

8 action upon the Agency's issuance of an NPDES

9 permit based upon its concerns about the Agency's

10 antidegradation review?

11 MR. FREVERT: What do you mean by formal

12 action? Do you mean objecting to a permit?

13 MS. HODGE: Have they ever objected to a

14 permit?

15 MR. FREVERT: Yes, I think they have. It is

16 an often occurrence, but occasionally they will

17 object. Many times they object to the fashion

18 through dialogue and communication such that a

19 different requirement or a modification of the

20 certain permit condition is necessary to remove

21 their objection. More rarely, but they do have

22 the option in actually writing a letter objecting

23 to the permit, essentially going on record in

24 writing saying we object to this permit for these

L.A. REPORTING (312) 419-9292

1 reasons.

2 I don't want to lead the audience to

3 believe that that is done on a wholesale basis. I

4 think we do a pretty good job of reviewing these

5 things now, and our process has evolved to the

6 point that we can anticipate and use common sense

7 the same way they can. So we don't have major

8 disagreement on the wholesale basis.

9 Periodically, there is one or two

10 issues where we need to educate one another and

11 get on the same wavelength.

12 MS. HODGE: You answered my question earlier

13 that the Agency has probably conducted in excess

14 of 100 antidegradation reviews per year. Just,

15 you know, as an estimate out of that number, how

16 many per year would USEPA object to, file a

17 written objection?

18 MR. FREVERT: Probably less than three, maybe

19 less than two, some years none.

20 MS. HODGE: Of the antidegradation reviews

21 that the Agency has conducted in the past five

22 years, how many of these have been reviewed and/or

23 commented upon by members of the public?

24 MR. FREVERT: We are on a growth curve to the

L.A. REPORTING (312) 419-9292

1 point that probably the -- I don't want to say the

2 majority of -- but in certain categories municipal

3 growth in suburban areas, for instance, the

4 antidegradation review is a very important factor.

5 And probably if there is an expansion of the POTW

6 in the metro Chicago area in nearly 100 percent of

7 them, there is a request for the antidegradation

8 review so they can review it themselves and

9 comment on it and enter their recommendations

10 during the public comment period.

11 In the case of industrial facilities,

12 at some downstate facilities, perhaps it is not as

13 high a percentage, but it is still a fairly --

14 fairly active part of our review in the public

15 participation process.

16 MS. HODGE: And the Agency currently

17 considers the comments of the public that come in

18 in this course?

19 MR. FREVERT: Of course, we work for the

20 public. We work for the citizens. That is what a

21 public participation is all about.

22 MS. HODGE: Have any of the NPDES permits

23 issued by the Agency, this group that -- in which

24 the Agency conducted antidegradation review, have

L.A. REPORTING (312) 419-9292

1 any of those been appealed by a member of the

2 public and then a third-party appeal to the Board

3 because of the antidegradation review?

4 MR. FREVERT: There have been a number of

5 cases where we have held agency hearings, NPDES

6 drafting hearings because of issues regarding

7 antidegradation. To the best of my knowledge,

8 there has not been an actual appeal of a finalized

9 permit because of antidegradation review. And I

10 would like to get a program in place that assures

11 that that doesn't happen.

12 MS. HODGE: I have a few questions now

13 related to some of the actual proposed regulatory

14 language. And in particular, Mr. Frevert, I refer

15 you to proposed Section 302.105(c)(1).

16 MR. FREVERT: Okay.

17 MS. HODGE: Could you please explain what the

18 Agency intends by using the word proponent in this

19 provision?

20 MR. FREVERT: Proponent is intended to refer

21 to a permit applicant, that individual that is

22 asking for authorization to carry out some

23 activity as a result of a discharge or potential

24 alteration of the stream.

L.A. REPORTING (312) 419-9292

1 MS. HODGE: So do you mean an application for

2 any discharge?

3 MR. FREVERT: The intent -- the specific

4 intent there is to come up with a word that

5 encompasses both the NPDES permitting program and

6 the 404 permit program as it relates to the

7 Section 401 water quality certification that is

8 necessary from the state. So it means applicants

9 for NPDES permits and parties seeking 401

10 certifications.

11 MS. HODGE: And the phrase that is in here,

12 unless the proponent can demonstrate that allowing

13 the lowering of water quality is necessary to

14 promulgate important economic or social

15 development, is it the Agency's position that an

16 application for a discharge would automatically

17 result in allowing the lowering of water quality?

18 MR. FREVERT: I don't believe that is our

19 intent, no. But I want to clarify what our intent

20 is. This applies to a proponent or an applicant

21 for prior authorization of an activity that will

22 result in an increased pollutant loading to the

23 stream.

24 If you are seeking a permit for an

L.A. REPORTING (312) 419-9292

1 existing operation where there is no proposed

2 increase in any pollutant parameter activity, this

3 rule doesn't apply to you. If you are asking for

4 another pound of dioxin to be put in the stream,

5 this section applies to you. The counterpart

6 being in terms of activities subject to the course

7 of the 404 program. If you are going to do some

8 stream alteration or some construction activity

9 that could deteriorate habitat or another aspect

10 of the stream, that particular activity is subject

11 to the antidegradation standards. And there needs

12 to be a conscious determination of the level of

13 degradation resulting from that construction

14 activity that is consistent with the intent of the

15 standard, which is that other social and economic

16 and community goals are adequate to warrant that

17 degree of deterioration.

18 MS. HODGE: So is it the Agency's intent that

19 the antidegradation review would only apply -- and

20 let us talk about this in the NPDES permit

21 context. Would it only apply if a permit

22 applicant is seeking an increase over a current

23 permit application?

24 MR. FREVERT: That's correct. If you have an

L.A. REPORTING (312) 419-9292

1 existing NPDES permit and you are operating at a

2 level below the authorized ceiling limits in that

3 permit, when we issued that initial permit, we

4 essentially concluded that the intent of

5 antidegradation was met up to that operating level

6 and no additional or subsequent reviews are

7 necessary. As you add on your growth area -- and

8 this is very common in the municipal arena, where

9 you build a sewage treatment plant for your

10 20-year needs, the day you operate you are well

11 below that. But when we make the decision to

12 permit and allow construction of that facility, we

13 have accepted that level of loading that is

14 contained in the permit. And the antidegradation

15 review would not come into place unless you filed

16 an application for an increase over and above

17 those levels that are already authorized in your

18 permit.

19 MS. HODGE: What about the case where an

20 industrial facility would discharge contaminant

21 acts, but there is no limitation in the -- in the

22 NPDES permit, at what point would the Agency

23 require antidegradation review?

24 MR. FREVERT: Maybe it would help if we came

L.A. REPORTING (312) 419-9292

1 up with an example. For instance, chloride that

2 is so low and it is so benign in this

3 circumstance, 20 milligrams per liter, the

4 standard is 500. There is no reasonable potential

5 under the federal guidance or even the state

6 operating procedures, there is no reasonable

7 potential for that level of discharge to cause a

8 problem. Therefore, it is not specifically

9 limited in the NPDES permit. However, what is

10 limited in that NPDES permit is a hydraulic rate

11 or flow rate. And consistent with those operating

12 levels, as a chloride increases along with that,

13 that type of activity we would view as not subject

14 to any kind of review or any kind of additional

15 permit approval.

16 MS. HODGE: Okay. I am going to ask that a

17 little differently and see. What about the case

18 where an existing facility discharges substance

19 acts again but there is no limitation in the NPDES

20 permit facilities, at renewal the Agency

21 determines to include a new limitation for

22 substance acts, if the regulation were adopted as

23 proposed, would the Agency anticipate an

24 antidegradation review would be required for the

L.A. REPORTING (312) 419-9292

1 substance prior to the issuance of the renewal

2 permit?

3 MR. FREVERT: I view that as a different

4 question. I think what you are saying is if your

5 waste water currently contains an unregulated

6 parameter and it becomes necessary for some reason

7 to regulate that parameter, if we establish a

8 limitation or regulation on that parameter for

9 such existing levels, it is not an increase. It

10 is not a -- as defined by this program, not a

11 deterioration. So it is not subject to this level

12 of review, merely permitting an existing load.

13 That load was not limited previously,

14 but it existed previously, it would not trigger an

15 antidegradation review.

16 MS. HODGE: In proposed Section

17 302.105(c)(2), you reference that an increase in

18 pollutant loading subject to NPDES permit or a

19 Clean Water Act Section 401 certification must be

20 assessed. Could you explain the Agency's Section

21 401 certification process?

22 MR. FREVERT: Yes, I will do my best. Prior

23 to that, I want to -- I want to -- maybe it would

24 be helpful if I explained the rationale for the

L.A. REPORTING (312) 419-9292

1 language here. In paragraph (c) for high quality

2 waters, in subparagraph (1) it essentially

3 establishes the standard -- in my mind establishes

4 the standard, and that standard includes some kind

5 of a positive demonstration for loading. The

6 purpose of paragraph (2) is to specify in the 401

7 program and the NPDES program it is the Agency's

8 job to determine whether or not that demonstration

9 has been met. So the importance of paragraph (2)

10 is it places a responsibility on the Agency to

11 ensure the adequacy of the demonstration called

12 for in paragraph (1).

13 Section 401 is sort of a parallel to

14 the NPDES program in that it is for those

15 activities involving construction or rather

16 disturbances within a water body, stream or lake

17 or whatever, Section 404 of the Clean Water Act

18 requires permitting for those activities,

19 permitting is allocated or assigned to the Corps

20 of Engineers. The language in the Clean Water Act

21 specifically says that the Corps of Engineers

22 cannot issue that permit in an area where the

23 State has denied certification that that activity

24 is compliant with the water quality standards.

L.A. REPORTING (312) 419-9292

1 So it creates responsibility on the

2 part of the State to inform and notify the Corps

3 of Engineers whether or not this proposed activity

4 is compliant with or is noncompliant with the

5 State's water quality standards.

6 In the state of Illinois, we actually

7 have a cooperative arrangement with our own

8 agency, the Corps of Engineers, and I believe the

9 division -- the Department of Natural Resources,

10 Division of -- excuse me, Department of Natural

11 Resources, Division of Water Resources, where --

12 they are two state agencies that carry out

13 reviews. They are looking at different end points

14 and different considerations in the water quality

15 standards.

16 It is our job to review those proposals

17 against the water quality standards and identify

18 any potential problems and notify those to the

19 Corps of Engineers. They have a notification

20 process. They have an application process where

21 you essentially make a joint filing to the three

22 agencies. So if you apply for a 404 permit, your

23 application goes to all three. A copy of that

24 will come to the Agency for review. And then we

L.A. REPORTING (312) 419-9292

1 review those and have the opportunity to provide

2 that certification of that input to the Corps of

3 Engineers in the context of its review stages

4 prior to that finalized permit action.

5 In reality, in Illinois, we do have a

6 section that deals with 401 reviews. It is a

7 fairly busy program. I can't tell you the number

8 of facilities that review. But dredging

9 activities, for instance, we almost always review

10 dredging activities to ensure compliance with the

11 water quality standards.

12 There are a number of activities

13 subject to the 404 permitting process that we

14 don't do reviews on. If the township road

15 commissioners puts a road culvert in to some

16 intermittent stream in downstate Illinois, it

17 probably happens 500 times a year, they need a 404

18 permit for that. We don't have the resources and

19 we don't believe there would be much accomplished

20 environmentally to allocate resources to review

21 those anyway.

22 There are some standard management

23 practices, some standard restrictions in the

24 permits that they have to adhere to. We have

L.A. REPORTING (312) 419-9292

1 entered an arrangement with the Corps of Engineers

2 whereby there is a -- they would be covered by a

3 national 404 permit. There would be certain

4 restrictions and applications to those facilities.

5 And with that in place, we have suspended any

6 individual reviews of those kind of activities.

7 So we reserve our staff abilities to review those

8 401 certifications we think make a difference.

9 MS. HODGE: How would the public be involved

10 in the 401 certification?

11 MR. FREVERT: There is a public notification

12 process for the 404 permitting program, the same

13 as there is for NPDES. I believe there must be --

14 the notice is actually done by the Corps of

15 Engineers, and we have got a cooperative

16 relationship with them.

17 MS. HODGE: What if a permit applicant there

18 wanted to challenge the Agency's antidegradation

19 determination, what would be the route for the

20 challenge?

21 MR. FREVERT: Again, comments under the

22 public notice procedures.

23 MS. HODGE: To the Army Corps of Engineers?

24 MR. FREVERT: I believe those comments would

L.A. REPORTING (312) 419-9292

1 be directed to all the reviewing agencies.

2 MS. HODGE: But what if they wanted a legal

3 challenge, where would that challenge be taken?

4 MR. FREVERT: Well, if those comments came to

5 the Corps of Engineers, the Corps would refer them

6 to the state agency because that is a -- if the

7 challenge was that this proposed activity is in

8 violation of the state water quality standard, the

9 Corps is not going to deal with that issue. The

10 Corps is going to defer that issue to us. That is

11 what the 401 certificate certification is about.

12 That aspect of a 404 review is assigned by

13 Congress to the states, not to the Corps.

14 MS. HODGE: But who reviews the Agency's

15 decision? Would the Agency's final determination

16 be appealable to the Board?

17 MR. FREVERT: Pardon me?

18 MS. HODGE: Would the Agency's final decision

19 be appealable to the Board in those cases?

20 MR. FREVERT: Once it is resolved, if there

21 is a controversy and we issue a certification and

22 the Corps issues their permit based on our

23 certification and a member of the public disagrees

24 with this, are you asking what the challenge

L.A. REPORTING (312) 419-9292

1 process is there? Connie is telling me that under

2 our Environmental Protection Act at the state

3 level that challenge would go directly to the

4 Circuit Court. It would not go to the Pollution

5 Control Board.

6 MS. HODGE: What if the Agency did not issue

7 the certification to an applicant, would there be

8 any way to challenge that?

9 MR. FREVERT: Well, I am sure there would be,

10 but I think you need to talk to a lawyer about

11 that.

12 MS. HODGE: Pursuant to the Illinois

13 Administrative Review Act?

14 MR. FREVERT: Yes.

15 MS. HODGE: Mr. Frevert, are you familiar

16 with the Board's definition of modification found

17 at Section 301.315?

18 MR. FREVERT: Somewhere in the last 30 years

19 I probably dealt with it, but I am not immediately

20 familiar with it, no.

21 MS. HODGE: I have a copy that we just

22 printed off the West Law, I believe.

23 MR. FREVERT: What are you asking me to do?

24 MS. HODGE: I just asked if you were familiar

L.A. REPORTING (312) 419-9292

1 with this, and this is just to refresh your

2 memory.

3 MR. FREVERT: I am familiar with this

4 language. What document is this from?

5 MS. HODGE: It is from the Board's

6 legislation 35 Illinois Administrative Code

7 Section 301.315, the Board's definition of

8 modification for water permitting purposes.

9 MR. FREVERT: Okay. This is just the

10 definitions in subtitle (c).

11 MS. HODGE: Right.

12 HEARING OFFICER TIPSORD I would just note for

13 the record, since that is a part of the

14 regulations, we wouldn't enter this as an exhibit.

15 MR. FREVERT: I assume you are going to ask

16 me a question.

17 MS. HODGE: Yes. Is it the Agency's position

18 that a -- and I should say modification, it goes

19 through A, B, C and D, and it deals with different

20 kinds of changes or increases in quality and

21 strength that would be defined as a modification

22 for which a permit applicant would need to seek a

23 permit. And then my question is, is it the

24 Agency's position that only changes and/or

L.A. REPORTING (312) 419-9292

1 increases that are actually modifications could

2 also be increases in pollutant loading that would

3 need to undergo the antidegradation review?

4 MR. FREVERT: I don't know exactly what you

5 asked me, but I think the point gets back to what

6 type of a permit action is subject to

7 antidegradation review and what type is not.

8 There are many, many activities for which we issue

9 permits and we modify permits that don't involve a

10 loading. We are not going to do and we are not

11 proposing to do an antidegradation review in those

12 instances. Those are instances where that load

13 has already been determined to be consistent with

14 the water quality standards. And until you go

15 over that load, the reviews will not focus on that

16 issue.

17 Typically, for instance, back to the

18 example of POTW. You build a plant for your

19 20-year needs, throughout that 20 years as you

20 grow, you are going to need construction permits

21 for new sewers and things of that nature. Those

22 reviews and the issuance of those construction

23 permits within the body of that NPDES permit would

24 not trigger new or supplemental antidegradation

L.A. REPORTING (312) 419-9292

1 permits.

2 MS. HODGE: Thank you. Let's focus a little

3 bit on subsection (d).

4 HEARING OFFICER TIPSORD: Going back to the

5 proposal now, correct?

6 MS. HODGE: I am right now looking at

7 Section 301.315(d).

8 HEARING OFFICER TIPSORD: Thank you.

9 MS. HODGE: And would it be the Agency's

10 position that the facility so long as the facility

11 did not trigger this 301.315(d) modification that

12 it is possible in some cases that there could be

13 an increase in load that would not trigger a

14 permit action and, therefore, would not trigger an

15 antidegradation review?

16 MR. FREVERT: That's correct.

17 MS. HODGE: And is that the case currently,

18 the Agency would not conduct an antidegradation

19 review in situations like that?

20 MR. FREVERT: That's correct.

21 MS. HODGE: I have another case, and I am

22 going to read this question because this was --

23 one of our members asked that we clarify this. An

24 existing NPDES permit limits a permittee's

L.A. REPORTING (312) 419-9292

1 discharge to 1,000 pounds per day of substance X

2 for which a water quality standard exists. Flow

3 must be reported on the permittee's discharge

4 monitoring report, but it is not specifically

5 limited in the permit. This 1,000 pounds per day

6 of substance X is based upon a flow of 3 million

7 gallons per day that permittee provided in his

8 original permit application. The permittee is now

9 submitting his renewal application. Over the

10 five-year time period since the original permit

11 issuance, the average flow has increased to 3.3

12 million gallons per day. So we have an increase

13 from 3 million gallons to 3.3 due to increasing

14 infiltration into the sewer system, a lot of wet

15 weather, et cetera, not really related to any kind

16 of change at the facility.

17 In the past, the Agency would use this

18 higher flow to increase the new permit substance X

19 load limit to 1,100 pounds per day, assuming that

20 no other limits would apply. If the regulation is

21 adopted as proposed, does the Agency anticipate

22 that an antideg review would be required prior to

23 issuance of a renewal situation?

24 MR. ETTINGER: Could we read that back? This

L.A. REPORTING (312) 419-9292

1 was a little long.

2 HEARING OFFICER TIPSORD: Kathy, would you

3 mind reading it again?

4 MS. HODGE: An existing NPDES permit limits a

5 permittee's discharge to 1,000 pounds per day of

6 substance X for which a water quality standard

7 exists. Flow must be reported on the permittee's

8 discharge monitoring report, but it is not

9 specifically limited in the permit. This 1,000

10 pounds per day of substance X is based upon a flow

11 of 3 million gallons per day that permittee

12 provided in its original permit application. The

13 permittee is now submitting his renewal

14 application. Over the five-year time period since

15 the original permit issuance, the average flow has

16 increased to 3.3 million gallons per day due to

17 increasing filtration into a sewer system, a lot

18 of wet weather, et cetera. It is not project

19 related. There has been no principal change at

20 the facility. It is our understanding in the past

21 the Agency would use the higher flow to raise the

22 permit amendment for substance X, assuming that no

23 other limits would apply. If the regulation is

24 adopted as proposed, does the Agency anticipate an

L.A. REPORTING (312) 419-9292

1 antidegradation review would be required prior to

2 issuance of the permit?

3 MR. ETTINGER: Excuse me, I wonder, this

4 wasn't clear. Is there currently 1,000 pounds per

5 day limit or not?

6 MS. HODGE: Yes, there is.

7 MR. ETTINGER: Okay. It seemed like you said

8 that at the beginning and then two sentences later

9 you said there wasn't.

10 MS. HODGE: There is a limit of 1,000 pounds

11 per day, but it is our understanding that the

12 Agency calculates limits by using standards and

13 then adjusting that based upon flow. So what is

14 happening here is we have had an increase in flow

15 that is not related to a physical change in the

16 facility. Would that kind situation undergo an

17 antidegradation review?

18 MR. FREVERT: Well, there are a lot of

19 specifics that aren't present in this example that

20 I need to know to give you an absolute answer, so

21 I am going to hedge a little bit. But I think

22 what I heard you say was there is an existing

23 facility that is currently limited to 1,000 pounds

24 per day of a pollutant discharge and they are

L.A. REPORTING (312) 419-9292

1 asking to have that limit raised to 1,100 pounds

2 per day. And my initial response -- not knowing

3 all the other circumstances, my initial response

4 would be there would be some level of review or

5 consideration of the antidegradation standard in

6 dealing with that request.

7 MS. HODGE: Thank you. I am going to ask

8 another question about the proposed Part 354, but

9 again it is related to we are trying to determine

10 the impact on the regulated community. And within

11 your proposed Section 354.103, you include a

12 number of things that a permit applicant will have

13 to submit in order for the Agency to conduct its

14 antideg review. Does the Agency currently require

15 the permit applicant to supply the same

16 information as set forth in its proposed 354.103?

17 MR. FREVERT: I believe most of that is

18 embodied in a typical NPDES permit application.

19 But I think the more important thing here is to

20 state what we are trying to accomplish. We are

21 trying to accomplish what we believe are the

22 categories and the types of information necessary

23 to give this standard proper review. And while

24 the language may specifically require that

L.A. REPORTING (312) 419-9292

1 information to come from a particular permit

2 applicant, our intent is to put everybody on

3 notice. That is the information we need to do our

4 job right. If we get it from another source, we

5 are not going to refuse to look at it because you

6 didn't mail it to us.

7 So the point you are getting at here is

8 does that put an unnecessary burden on the

9 applicant. It is not our intent to do that. It

10 is our intent to identify what the minimum

11 information is. And ultimately, if we don't have

12 it, the burden is going to fall to the applicant.

13 But if we have it, we are not going to go back and

14 make our own staff and his staff do unnecessary

15 labor to generate something we already have.

16 MS. HODGE: In addition to information that

17 an applicant would currently submit to the Agency

18 for antidegradation review, does the Agency also

19 utilize information, data or reports available to

20 the Agency from its own sources?

21 MR. FREVERT: Yes.

22 MS. HODGE: Does the Agency also rely upon

23 its experience with factually similar permitting

24 scenarios?

L.A. REPORTING (312) 419-9292

1 MR. FREVERT: Yes.

2 MS. HODGE: Does the Agency also rely upon

3 other valid information that may be available to

4 the Agency?

5 MR. FREVERT: Of course.

6 MS. HODGE: Does the Agency anticipate that

7 in making its antidegradation assessments under

8 the proposed regulations, it will continue to

9 utilize and/or rely upon such information, data,

10 reports available to the Agency from its own

11 sources, its experience with factually similar

12 permitting scenarios and other valid information

13 available to the Agency?

14 MR. FREVERT: Yes, that is our normal

15 operating mode.

16 MS. HODGE: Would the Agency support the

17 inclusion in this proposal provisions that would

18 allow the Agency to continue this practice?

19 MR. FREVERT: I don't know that there is any

20 prohibition for us doing that anyway. For

21 clarification or confidence level, that additional

22 language has some benefit. We would not be

23 opposed to it.

24 MS. HODGE: I would ask you to turn now to

L.A. REPORTING (312) 419-9292

1 proposed Section 302.105(c)(2).

2 HEARING OFFICER TIPSORD: Excuse me,

3 Ms. Hodge. Can we go off the record?

4 (Discussion had off the

5 record.)

6 HEARING OFFICER TIPSORD: Why don't we take a

7 brief ten-minute break here since it is about

8 11:00 o'clock. And then we can shoot for a lunch

9 break around noon as well.

10 (Short recess taken.)

11 HEARING OFFICER TIPSORD: Ms. Hodge, would

12 you like to begin?

13 MS. HODGE: Yes, I will.

14 Thank you. I have just a few questions

15 now about proposed Section 302.105(c)(2). And I

16 am going to read this into the record. "Any

17 proposed increase in pollutant loading subject to

18 NPDES permit or Clean Water Act Section 401

19 certification must be assessed pursuant to 35

20 Illinois Administrative Code Part 354 to determine

21 compliance with this section." And, Mr. Frevert,

22 just to clarify, what section does this provision

23 refer to?

24 A. That is an issue we probably will

L.A. REPORTING (312) 419-9292

1 clarify in some amendments. The intent there was

2 to say essentially that the Agency should adopt

3 procedures so that notifying everybody interested

4 in how they are going to go about performing this

5 determination, and that the only intent there was

6 to reference that the Agency shall have

7 procedures, adopted procedures specifying when

8 they intend to accomplish this.

9 I think you already know that Part 354

10 is the number we have given to those draft

11 implementation procedures we included for

12 information purposes in this proceeding.

13 MS. HODGE: And what do you mean by the word

14 compliance there? You say to determine

15 compliance.

16 MR. FREVERT: What I mean is that to make

17 that determination if the Agency permits an

18 increase, that they have permitted that increase

19 with a conscious determination that that increase

20 is, indeed, compatible with the antidegradation

21 standard, in other words, that the justification

22 has been made and it is available in the fact

23 sheet.

24 MS. HODGE: Thank you. Section 302.102 of

L.A. REPORTING (312) 419-9292

1 the Board's existing regulations provides for

2 allowed mixing, mixing zones, and ZIDS, Z-I-D-S.

3 How would such mixing be treated in the context of

4 the proposed antidegradation reviews?

5 MR. FREVERT: I don't know that mixing would

6 be an issue at all. I mean, there is a

7 requirement for how you determine whether a mixing

8 is allowed or not. And we -- for new discharges,

9 quite honestly, we look at the mixing issues at

10 the time we are considering new discharges and

11 whether or not a specific mixing zone is allowed

12 or precluded due to the criteria in the Board's

13 standard. So I guess you can say there would be

14 the need for the Agency to consider both of those

15 standards in the context of a new discharge.

16 But in terms of antidegradation in and

17 of itself, a load increase is a load increase. If

18 you add another pound of pollutants, that is

19 another pound of pollutants that is going to be in

20 there and beyond the mixing zone. So we would do

21 an antideg review whether there was a mixing zone

22 or not.

23 MS. HODGE: Would this affect in any way the

24 Board's provision right now that says some

L.A. REPORTING (312) 419-9292

1 degradation is allowed within a mixing zone?

2 MR. FREVERT: No, I don't believe it would.

3 I believe the same factors that currently exist we

4 are not proposing to change the factors we

5 consider in the decision of whether or not to

6 allow mixing and what the purpose of that mixing

7 zone is.

8 MS. HODGE: You answered my question earlier

9 that the Agency currently conducts somewhat over

10 100 antidegradation reviews per year. How many

11 antidegradation reviews does the Agency anticipate

12 it would conduct on an annual basis if the Board

13 adopts the proposal here?

14 MR. FREVERT: Approximately the same number.

15 We are updating the language of the standard. We

16 are providing more specificity and more certainty

17 in what kind of information would be available to

18 document those reviews. Nevertheless, there still

19 are a plethora of facilities out there that would

20 fall in that category we are proposing be exempt

21 from a specific stand-alone demonstration. That

22 more or less reflects our current operating mode.

23 MS. HODGE: Do you think that the proposed

24 regulations if adopted by the Board and then

L.A. REPORTING (312) 419-9292

1 implemented by the Agency would result in any

2 delays or slowing down the NPDES permitting

3 process for applicants?

4 MR. FREVERT: In a general sense, I would

5 anticipate that this new revised language and

6 these implementation procedures we have, if

7 anything, would expedite the process and save

8 resources. I believe there would be more specific

9 information brought in at an earlier stage so some

10 of the public comments, they would -- they would

11 have access to the information and our thought

12 process to be able to determine whether or not

13 early on they agree or disagree and would want to

14 pursue it further.

15 At the same time I believe that the

16 significant load increases -- any permit applicant

17 out there with any consciousness at all is going

18 to recognize this is something they have to deal

19 with anyway. And the implementation procedures

20 are a good starting point for them to understand

21 what it is that we are going to be looking for.

22 So they will more or less have a partial guidebook

23 how do I determine what I have to do to address

24 this issue.

L.A. REPORTING (312) 419-9292

1 So no delay, hopefully expedite the

2 process.

3 MS. HODGE: We may have already covered this

4 next question, but I just want to be sure. Could

5 you please explain how the proposed amounts will

6 affect discharges by publicly-owned treatment

7 works, POTWs? For example, will a POTW be subject

8 to an antidegradation review every time one of its

9 industrial discharges increases the load in the

10 discharge to the POTW?

11 MR. FREVERT: Those activities currently are

12 more or less dealt with in the context of the

13 pretreatment program. The requirements and the

14 procedures to determine and review the

15 acceptability of those to a great extent are

16 defined by the pretreatment program and the POTW

17 sewer use requirements. Typically when we issue

18 an NPDES to a POTW with a pretreatment program,

19 that context is part of what we have approved, and

20 we recognize that the changes and the additions

21 and the modifications going on internally with

22 that system are going to be dealt with in the

23 context of that permit and the pretreatment

24 program and the procedures that permit embodies.

L.A. REPORTING (312) 419-9292

1 So we are not going to get involved

2 with a separate review of those activities. We

3 are going to allow that program to move forward as

4 it would otherwise.

5 MS. HODGE: It is our understanding that

6 currently the Agency would issue construction

7 permits to industrial facilities for certain

8 modifications at an industrial facility even

9 though the discharge from the facility would be

10 directly into a POTW. And my question is will

11 industrial facilities which discharge into POTWs

12 be subject to antidegradation reviews when they

13 submit a permit application for a modification?

14 MR. FREVERT: If that particular activity

15 necessitated a change in the NPDES permit, it may

16 be possible. But I would assume that in the

17 context you are thinking, changes within the

18 system already anticipated and approved and

19 consistent with the existing standing NPDES

20 permit, there would be no -- no review anticipated

21 or required, I believe, by these procedures

22 specifically to deal with the antidegradation

23 review.

24 MS. HODGE: And to clarify, you mean the

L.A. REPORTING (312) 419-9292

1 NPDES permit of the POTW in which the industrial

2 discharge or discharges?

3 MR. FREVERT: That's correct. Once that

4 NPDES permit is in place and the procedure for

5 dealing with industrial users and subdivision

6 expense, things of those nature are embodied in

7 that operating program, they control the

8 situation. We don't go back and rereview the

9 antidegradation findings we made.

10 MS. HODGE: We infer based upon our review of

11 the Agency's proposal here that -- and I think you

12 have testified to this -- that the Agency intends

13 that all applicants for permits -- NPDES permits

14 that would result in increases in pollutant

15 loading with the exception of those activities

16 that are set forth in proposed Section 302.105(d),

17 that these applicants must make an antidegradation

18 demonstration; is that correct?

19 MR. FREVERT: The intent here is that those

20 proposed actions cannot be permitted until the

21 Agency makes a determination and documents in some

22 form a determination that proposed action is

23 consistent with the antidegradation standard.

24 Now, that stops short of saying a specific

L.A. REPORTING (312) 419-9292

1 document that you call a demonstration has to be

2 mailed in to us separately from your normal permit

3 application.

4 And the way we operate and the way we

5 propose to continue to operate is that the

6 information necessary for that demonstration to be

7 documented as part of our permitting review is

8 available to the Agency from whatever it comes in

9 with the permit application and whatever other

10 material we have available to us is adequate to

11 make that demonstration, we are not going to call

12 you up and say we know the answer but mail us a

13 piece of paper anyway. You don't have to make a

14 demonstration if the demonstration already exists.

15 MS. HODGE: What criteria will the Agency use

16 to determine whether the demonstration has been

17 made?

18 MR. FREVERT: Well, I think that criteria is

19 going to vary from case to case. And, indeed, the

20 intent of our proposed permitting procedures is to

21 outline in a broad sense the types of information,

22 the types of environmental considerations, the

23 types of community activities and alternative

24 analysis things that we are going to weigh into

L.A. REPORTING (312) 419-9292

1 this decision.

2 But I can tell you there is a world of

3 difference between the ones in our workgroup we

4 call no-brainers and the ones in our workgroup

5 that we call the most significant five permitting

6 activities of the year. So it is a concept, and

7 there is a category of information, but I can't

8 itemize to you that any given case is going to

9 require five man days or 1,000 hours of effort.

10 I can tell you we can look at the

11 nature of the waste water. We can look at the

12 nature of the environmental receiving body to be

13 dealt with. We can look at the chemical fate and

14 transporting ability to deteriorate or

15 bioaccumulate or whatever else that those

16 substances deal with. We can look at the

17 alternative of doing something a different way

18 that would eliminate the need or reduce the need

19 for pollutant entries, things of that nature. But

20 we don't intend to do the same level of effort for

21 every decision.

22 We have got a sliding scale here that

23 intends to target our resources and your resources

24 where the significance of the decision was more

L.A. REPORTING (312) 419-9292

1 apparent and back off in those cases where we know

2 the relative significance still warrants some

3 review, but it warrants a lesser review.

4 MS. HODGE: Thank you. And you used the term

5 significance. And I think that is important. Are

6 you familiar with the USEPA guidance for

7 antidegradation implementation that has been

8 issued by Region 8?

9 MR. FREVERT: I seen a copy of it and I

10 looked at part of it.

11 MS. HODGE: Are you aware that this guidance

12 includes very detailed factors for making

13 significance determinations?

14 MR. FREVERT: Yes, I am. And I think there

15 is a semantics issue here. Those significance

16 issues are the same issues that I am saying we

17 would consider in the process of determining

18 compliance or noncompliance with the standard.

19 You know, that particular document was

20 drawn to my attention a few weeks ago as having

21 some specific meaning that was perceived to be new

22 to our workgroup discussions, and I am still

23 struggling to find what in that document was

24 substantively different than what we talked about.

L.A. REPORTING (312) 419-9292

1 They talk about alternatives analysis and other

2 things as reviews you do in the process of

3 determining significance. In my mind that is the

4 same thing we are proposing to do in the review.

5 We are looking at alternatives. We are looking at

6 relative loading and things like this to determine

7 what, if any, additional permit restrictions or

8 other things would be necessary to honor the

9 intent of the standard.

10 So I would call the significance review

11 of Region 8's guidance almost the same as our

12 antidegradation review. We are doing the same

13 thing. They call it a significance determination.

14 I call it a compliance determination.

15 MS. HODGE: Would the Agency oppose the

16 inclusion of language in the proposal that would

17 articulate that significance determination a

18 little bit more clearly?

19 MR. FREVERT: I think we probably would be

20 receptive to discussing that a little bit if we

21 understood what the ramification of the

22 significance finding meant. Does that mean there

23 is some aspect of this standard you determine has

24 been attained or doesn't apply? Those are two

L.A. REPORTING (312) 419-9292

1 different issues. I don't think the Agency would

2 support an activity where you determine for some

3 significance determination the standard didn't

4 apply. I think we would support something where

5 we said the significance of this activity is such

6 that the standard has been met.

7 And another word thrown around in our

8 workgroup that sort of dealt with the same issue

9 is the de minimis concept. Is it too small to

10 warrant a review or is it too small to be subject

11 to the standard? And those are two different

12 things. Everybody is subject to the standard.

13 Now, we are talking about what is subject to the

14 stand-alone review versus a generic finding by the

15 Board that no stand-alone review is necessary.

16 MS. HODGE: But how is a permit applicant

17 and/or a member of the public to know how the

18 Agency would make that determination?

19 MR. FREVERT: That is the review process, I

20 believe. You know what factors we are going to

21 consider. For instance, if we are talking about a

22 new load of chloride versus a new load of dioxin,

23 I am going to tell you I am going to do my reviews

24 fundamentally different for the parameters, even

L.A. REPORTING (312) 419-9292

1 if they go to the same stream at the same time.

2 If you are talking about 50 pounds of BOD going to

3 the Mississippi River versus 50 of BOD going to

4 Cash Creek, I am probably going to do those

5 reviews differently too.

6 So we have tried to document in writing

7 as best we can a conceptual approach, the types of

8 considerations that sort of warrant more attention

9 and less attention that every review is going to

10 be different. And I can hint to you that if it is

11 a biochemical substance, I am going to look at it

12 different than a substance that breaks down, you

13 know, pretty rapidly over time. That is part of

14 what I mean by fate and effects and constituency

15 and environmental activity. And I believe we try

16 to articulate those things as best we could in our

17 implementation procedures. These are the

18 categories, environmental and economic and

19 technology considerations we went to look at. And

20 they will be different for you than it will for

21 the next guy.

22 MS. HODGE: Could we go back to the chlorides

23 example and the case that I had asked you about

24 before the break where an NPDES permit limits a

L.A. REPORTING (312) 419-9292

1 permittee's discharge to 1,000 pounds per day of

2 substance X? And let's say it is chloride. And

3 let's say under that same situation I think you

4 answered that, yes, it would be deemed an increase

5 in pollutant loading. But how would the

6 antidegradation review work there? What would you

7 expect the applicant to submit? The applicant

8 here has not made a change. Is this something

9 where you might do this early-on significance

10 determination?

11 MR. FREVERT: In that particular example, I

12 would look at the potential impact on water

13 quality in the context of incremental

14 concentration increases and whether or not that

15 was anywhere near. Here you are bumping up

16 against the water quality standard. We are trying

17 to create a no brainer example here so I want to

18 include in this example it is still far below the

19 water quality standard. And probably the net

20 result is going to be maybe two hours worth of

21 work by our staff documenting concentrations, the

22 reason and how it came about as being requested,

23 receiving stream body, any potential for impact,

24 document that in a fact sheet. The review is

L.A. REPORTING (312) 419-9292

1 over. We haven't asked for a single thing from

2 that applicant that wasn't already in evidence.

3 MS. HODGE: So you would not expect the

4 applicant to submit information on these social

5 and economic issues in a situation like this?

6 MR. FREVERT: There are examples. That is

7 probably a good example where I say there are many

8 circumstances where we are not going to ask for

9 social and economic information over above what we

10 already have in-house, that is correct.

11 MS. HODGE: How is an applicant to know that?

12 MR. FREVERT: If it is a significant thing

13 and time is important to him, we are trying to

14 promote early-on discussion. Call us up. We work

15 for the taxpayers. You want to schedule a

16 meeting, come in and make your proposal and ask us

17 what kind of information you put in your

18 documentation. If you are not in a hurry or it

19 doesn't appear like a big deal, mail your permit

20 application in.

21 Most of the NPDES permit applications

22 and the modification forms require some standard

23 information anyway. And there are certain

24 instances where the information in those basic

L.A. REPORTING (312) 419-9292

1 forms are all we need. We don't need anything

2 more. We are not going to ask for anything more.

3 We will do a review, but you probably won't even

4 know. You are not being asked to put out any more

5 effort than you ordinarily would otherwise. We

6 will do our review and make a public statement of

7 how we did it and what we included.

8 MS. HODGE: Would you perform an assessment

9 of alternatives in a situation like that?

10 MR. FREVERT: There may be some circumstances

11 where there is not even a need to look at

12 alternatives. As a matter of fact, I can

13 guarantee you there will be situations come up

14 where we feel there is some kind of a review

15 necessary, albeit an abbreviated review. But

16 under the circumstances, there is no reason to go

17 out and look for or ask for any alternatives.

18 What is being proposed is sort of a logical common

19 routine.

20 MS. HODGE: We had had the discussion before

21 about the Region 8 guidance and I do have copies

22 here. I have three copies that I would like to

23 enter into the record.

24 HEARING OFFICER TIPSORD: Ms. Hodge has

L.A. REPORTING (312) 419-9292

1 offered EPA Region 8 guidance antidegradation

2 implementation as an exhibit. Is there any

3 objection? Seeing none, we will mark this as

4 Exhibit No. 1.

5 (Whereupon Exhibit No. 1 was

6 marked into the record.)

7 MS. HODGE: And just a little bit more on the

8 significance determination. I think you had also

9 said a de minimus provision. Are you aware that

10 other Region 5 states have included an initial

11 significance determination in the regulatory

12 language and/or a de minimis provision that would

13 fit with the situation that you just described?

14 MR. FREVERT: I don't know how to fit with

15 the situation I just described, but I am aware of

16 that other states have attempted to incorporate

17 some kind of de minimis language in standards or

18 their implementation procedures.

19 MS. HODGE: And is there a reason that the

20 Agency -- I mean, what I heard you describe, you

21 know, over the last few minutes, you know, fits

22 with a significance determination or you had said,

23 you know, the review would not be the same in

24 every single case, it would be made on a

L.A. REPORTING (312) 419-9292

1 case-by-case basis. Is there a reason that the

2 Agency didn't put some more definitive language

3 into the proposal to describe that situation?

4 MR. FREVERT: We spent a lot of time in the

5 workgroup talking about de minimis issues. There

6 was some suggestion that came forward. The Agency

7 is not opposed to the concept. As a matter of

8 fact, we would be happy to consider workable

9 proposals or alternatives that come forward, even

10 today. What we are concerned about is a -- an

11 additional step in the whole process that merely

12 determines whether or not you do a review. And if

13 that step is more burdensome than doing the review

14 itself, we feel like we are going backwards than

15 forwards.

16 In many instances, significance

17 determinations of other states that have gone

18 through, as best they have expressed them to me,

19 actually are more burdensome than what I believe

20 the appropriate level of review would have been

21 made to determine compliance with the standard to

22 begin with. They merely determine whether they do

23 a review of the standard.

24 In essence I think they have and

L.A. REPORTING (312) 419-9292

1 concluded that small things are consistent with

2 the intent of the policy. So in other words, we

3 are compliant with the standard. We are not

4 exempt from doing a review if we have done one.

5 Our major concern is that we don't want

6 another step in the process that prolongs it.

7 When you finish that process, maybe your decision

8 is, well, now we have to go to another process

9 because I have determined it is significant or I

10 am going to get appealed because I can't document

11 adequately how I determine that I was either above

12 or below the significance level. Those are some

13 of our concerns. If we can work through those and

14 come up with a program that reaches the same

15 decision with less man-hours and less effort,

16 bring it on. We are ready for that.

17 MS. HODGE: Mr. Frevert, I have just a few

18 more. Let's go back to the activities that are

19 listed in proposed Section 302.105(d). And these

20 are the proposal indicates that these are

21 activities not subject to an antidegradation

22 demonstration. Are you aware that other Region 5

23 states have included other activities? And I am

24 going to use the word exemption, I know in your

L.A. REPORTING (312) 419-9292

1 testimony you said it is nonexemption. But states

2 have included other kinds of activities and

3 exemptions in their antidegradation review

4 procedures.

5 MR. FREVERT: I believe some of the other

6 states in Region 5 have tackled that issue and

7 actually incorporated some language in some of

8 their procedures. I don't know other than the

9 state of Ohio that ahs been through several

10 iterations of, I would say, unsuccessful attempts

11 to get a standard in place. I don't know the

12 status of the other states in terms of whether

13 their procedures are federally approved or not.

14 We can probably get that information. I don't

15 know if you want Dave to address that or not. He

16 is the USEPA rep here.

17 MS. HODGE: That answers my question. And I

18 won't go over, you know, the entire list of these

19 things, but really just want to inquire whether

20 the Agency would be willing to consider the

21 inclusion of other activities on this listing at

22 302.105(d).

23 MR. FREVERT: In a general answer, yes, we

24 would.

L.A. REPORTING (312) 419-9292

1 MS. HODGE: Thank you.

2 MR. FREVERT: These are limitations to doing

3 a review that we feel comfortable with as being

4 dependable, workable and rash. That is not to say

5 they are the only ones. But these are a list of

6 exemptions that we feel very comfortable with.

7 This were a number of others brought up during the

8 workgroup sessions, some of which had some merit

9 with some complications, and we fully expect some

10 discussion from a number of participants on adding

11 to this list. But this is a list that we feel

12 both workable and federally approved. And those

13 were probably our two prime criteria, can we make

14 this work and can we secure federal approval.

15 MS. HODGE: Subsection (d)(5) of this list

16 deals with new or increased discharges of

17 noncontact cooling water without additives, return

18 to the same body of water from which it was taken.

19 And I would like you to focus on the without

20 additives. Is it the Agency's understanding that

21 most noncontact cooling water is treated with

22 additives?

23 MR. FREVERT: Is it the Agency's

24 understanding that most is or is not?

L.A. REPORTING (312) 419-9292

1 MS. HODGE: Is or is not?

2 MR. FREVERT: I don't know that the Agency

3 has an understanding. The Agency knows it is done

4 both ways. What we are saying here is that the

5 only load in there is heat under these

6 circumstances, we don't feel there is much merit

7 in doing an antidegradation review. If in

8 addition to heat there is some chemical additive

9 to prevent scaling or some other problem, maybe

10 there is some benefit in reviewing that source to

11 determine if that is the best additive and if

12 there are toxic ramifications for that additive.

13 But lacking those additives, we are

14 saying we can't justify doing a stand-alone

15 antidegradation review just to the heat if the

16 heat is consistent with the other thermal

17 requirements.

18 MS. HODGE: I have a few questions now about

19 proposed Section 302.105(b), outstanding resource

20 waters. And in particular in 302.105(b)(1), this

21 proposal provides that waters that are classified

22 as an ORW must not be lowered in quality except as

23 provided below. And I would just -- I am just

24 looking for some clarification on -- for example,

L.A. REPORTING (312) 419-9292

1 on (A) as to subsection capital (A), does that

2 mean that an activity that results in short-term

3 temporary lowering of water quality of an ORW is

4 automatically allowed?

5 MR. FREVERT: No, it doesn't. The way this

6 is structured and we are attempting to parallel

7 federal guidance, we are saying with very few and

8 very limited exceptions, outstanding resource

9 waters should receive no load increase whatsoever.

10 And those very limited and very restrictive

11 exceptions are these presented below, and even

12 they are subject to the review for the high

13 quality waters.

14 MS. HODGE: So under subsection (b)(1)(c),

15 the antidegradation demonstration would be

16 required even in these two situations that are set

17 forth in (A) and (B)?

18 MR. FREVERT: That's correct.

19 MS. HODGE: Based upon our review of the

20 proposed procedures for ORW designation, and that

21 would be in your proposed revisions to Part 106,

22 again, we were asking for a little bit of

23 clarification. Mr. Frevert, in your testimony you

24 indicated that the ORW designation would be a

L.A. REPORTING (312) 419-9292

1 regulatory process. The placement of these

2 procedures in Part 106, it is there with what

3 appear to be other adjudicatory proceedings, and

4 we just ask the Agency to clarify its intent.

5 Would you intend this process to be an

6 adjudicatory or regulatory process.

7 MR. FREVERT: That is a toughy. Our intent

8 is that the process -- indeed, it is a regulatory

9 designation. In that regard we want to adhere to

10 a fairly open regulatory process. However, the

11 ramifications of this decision are fundamentally

12 more significant than the ramifications of a

13 typical adjusted standard or even a statewide

14 standard in that we are not setting a target to

15 protect an environmental use here. We are setting

16 an absolute prohibition on some activities. And

17 that has greater ramifications on property owners

18 and other citizens in the community than changing

19 the water quality standard from No. A to No. B.

20 So our intent is to remain relatively

21 flexible, recognizing those higher ramifications,

22 making sure there is an obligation to disseminate

23 adequate information to start the process and that

24 potentially effected property owners and other

L.A. REPORTING (312) 419-9292

1 citizens have adequate notice, which probably

2 isn't accomplished in a typical adjusted standard

3 set of procedure requirements.

4 You are not only talking about surface

5 property rights, but even mineral rights and an

6 outstanding resource water other than a very few

7 things you are almost precluded in any

8 development. And that is so much of a higher

9 significance than merely adjusting an

10 environmental effect standard that we thought

11 there is a responsibility to even start the

12 process to make sure that the people that have

13 something at stake and are effected have a better

14 chance of getting notice early on so they can

15 participate.

16 That be being said, we still believe it

17 is a regulatory process. And if the Board chooses

18 some other starting ground to initiate a

19 proceeding, that is their prerogative.

20 HEARING OFFICER TIPSORD: Ms. Hodge, could I

21 ask a follow-up? Mr. Frevert, I would note that

22 an adjusted standard is an adjudicatory process,

23 so it is not the rulemaking process. So already

24 by suggesting that this is a regulatory process,

L.A. REPORTING (312) 419-9292

1 you put it in a different category than an

2 adjusted standard.

3 I guess my follow-up question to this

4 would be that we have currently in place a

5 specific provision that allows for regulated

6 recharge areas to be named as a part of a regular

7 rulemaking. Would you see this type of activity

8 to declare an outstanding resource water similar

9 to that process?

10 MR. FREVERT: There may be some similarities,

11 although I can't tell you now it is exactly

12 identical. And I have some familiarity with that

13 process, but not a great deal. And one of my

14 concerns would be -- well, the burden of the

15 process itself, who and how can initiate a process

16 and what role or responsibilities flow upon the

17 Agency at that point.

18 HEARING OFFICER TIPSORD: Okay.

19 MR. FREVERT: We can certainly go back and

20 review that more and give you more specific

21 testimony at a later date, if you so like.

22 HEARING OFFICER TIPSORD: I think that might

23 be helpful.

24 MR. FREVERT: Well, what we are trying to

L.A. REPORTING (312) 419-9292

1 create is an obvious opportunity for someone who

2 thinks that water has not only special value, but

3 enough special value to warrant an extremely high

4 classification here, give them some guidance on

5 what is enough information to make -- to start the

6 process and go forward and expend your time and

7 our time and everybody else's time on the

8 consideration, how much information do you need

9 and who are the people that are likely to be

10 affected by the ruling and how do we make sure we

11 know if we declare an outstanding resource water

12 in a certain area, how much property has some

13 effect on the futurability of those property

14 owners to construct anything or carry on any kind

15 of social, commercial activities.

16 High quality water is you can do

17 something with a demonstration. Outstanding

18 resource waters you can do nothing. So there is a

19 fundamental difference there. We want to make

20 sure you understood. And understanding that

21 situation, as far as I am concerned, you can

22 subject it to any procedures you want. We were

23 merely offering our suggestions.

24 HEARING OFFICER TIPSORD: Thank you.

L.A. REPORTING (312) 419-9292

1 MS. HODGE: Under the Agency's proposal,

2 would the proponent of an ORW have a burden of

3 proof?

4 MR. FREVERT: I would assume there is a

5 burden of proof somewhere, and the Board

6 designates a water body in a use classification.

7 We need to substantiate that, whether they place

8 that burden on the initiation of a proceeding or

9 that is their criteria for final action at the end

10 of the proceeding. I am not sure that we have a

11 strong position on that one way or another. I

12 mean, our two issues are you need to understand

13 the ramifications of your decision. And before

14 you need that -- to make that decision, you need

15 to have all that information. How much

16 information it takes to get a proposal filed, get

17 on the docket and trigger the hearing process, we

18 think should be a little more rigorous than a

19 routine adjusted standard. But again, I am -- the

20 Board can open the docket any time they want on

21 any issue they want.

22 MS. HODGE: Does the Agency have any position

23 on what criteria or factors the Board should rely

24 upon in its designation of ORWs?

L.A. REPORTING (312) 419-9292

1 MR. FREVERT: I am not sure at this time we

2 have a -- have actually formulated the specific

3 and quick answer to that. We think the Board

4 needs to understand the ramifications to fully

5 understand the nature of the water body and the

6 nature of the impacts that designation has.

7 But in terms of itemizing or listing a

8 number of technical or economic or other factors

9 that would lead up to that, I don't believe we

10 have done that exercise.

11 MS. HODGE: And I have just a couple more

12 questions. And this one is related to

13 Ms. Tipsord's question. Are you aware,

14 Mr. Frevert, that the Board has promulgated rules

15 for designation of special resource ground waters

16 at 35 Illinois Administrative Code Part 620.260?

17 MR. FREVERT: Yes, I am.

18 MS. HODGE: Are you aware that the special

19 resource ground water designation is an

20 adjudicatory process?

21 MR. FREVERT: I will take your word for it.

22 No, I have no specific knowledge of that.

23 MS. HODGE: Would you agree that special

24 resource ground waters and outstanding resource

L.A. REPORTING (312) 419-9292

1 waters are similarly unique quality waters?

2 MR. FREVERT: I believe in my own mind that

3 the ramifications on property owners and the

4 restrictions on what they can do are significant

5 in the special ground water section you are

6 referring to. And they are also very significant

7 in outstanding resource water classification for

8 surface waters.

9 At this point in time, my understanding is

10 that they may be even more restrictive for

11 outstanding resource waters than the limitations

12 placed on ground waters. But again, this is an

13 area that I would be happy to research more and

14 give you more specific answers to later on. I am

15 not our best ground water spokesman.

16 MS. HODGE: Thank you. Does the Agency have

17 any idea as to the number of potential petitions

18 that might be submitted to the Board for

19 designation of ORWs if this proposal is adopted?

20 MR. FREVERT: No, we don't. I know that

21 there are interested parties within the state who

22 feel that some waters warrant that level of

23 protection and may be willing to pursue that

24 classification, but I can't give you a number.

L.A. REPORTING (312) 419-9292

1 MS. HODGE: That concludes my questions.

2 Thank you very much.

3 HEARING OFFICER TIPSORD: Thank you,

4 Ms. Hodge.

5 Are there any other questions for

6 Mr. Frevert? Mr. Harrington?

7 MR. HARRINGTON: Maybe I can be heard better

8 if I stand up.

9 HEARING OFFICER TIPSORD: Mr. Harrington,

10 excuse me. Can you identify yourself?

11 MR. HARRINGTON: James T. Harrington, Ross &

12 Hardies, for the Illinois Steel Group. I am a

13 little confused about the applicability provisions

14 even after Ms. Hodge's questions and your answers.

15 If an existing discharger has a permit,

16 he has set forth existing discharge of the permit

17 application, the Agency regulates some of those in

18 the permit, is that not the common way it is done?

19 MR. FREVERT: There are limitations placed on

20 the parameters of significance.

21 MR. HARRINGTON: There are other pollutants

22 in the application that are listed on the range of

23 tests that are above background which the Agency

24 does not think are significant enough to limit?

L.A. REPORTING (312) 419-9292

1 MR. FREVERT: That's correct.

2 MR. HARRINGTON: If in the course of

3 operations there is an increase over the numbers

4 of permit application so there was nonregulated

5 pollutants, will there be a nondegradation review

6 when they apply for renewal of that permit?

7 MR. FREVERT: Not per se, no. And I am

8 presuming that your -- you are talking about an

9 example where there is some incremental rise in

10 those pollutants that would warrant regulation.

11 MR. HARRINGTON: We don't know what warrants

12 regulation. We will say there will still be a

13 limit that might not have results in a new permit,

14 either traditionally --

15 MR. FREVERT: Yes.

16 MR. HARRINGTON: -- more zinc in the

17 discharge or for some reason it is being used in

18 the plant but not of great significance. You

19 haven't put a zinc limit in the first permit, so

20 you won't put a zinc limit in the renewal?

21 MR. FREVERT: If there is a conscious

22 addition of additional zinc -- I think this is

23 what you are getting at.

24 MR. HARRINGTON: Yes.

L.A. REPORTING (312) 419-9292

1 MR. FREVERT: I am operating a facility and I

2 have zinc that is at some incredibly small amount

3 relative to significance determination for water

4 quality standards review, but I am going to -- if

5 you are going to add a new process that

6 substantively increases that zinc, we may look at

7 that in terms of alternatives. If it is just an

8 incidental increase associated with your normal

9 activities, it won't receive any kind of review.

10 MR. HARRINGTON: Back up a minute. The

11 Agency provides forms for permit applications; is

12 that correct?

13 MR. FREVERT: That's correct.

14 MR. HARRINGTON: And when the permit

15 application is submitted, the first thing the

16 reviewer usually does is reviews the forms for

17 completeness; is that correct?

18 MR. FREVERT: Tom is telling me yes.

19 MR. HARRINGTON: And if they find that all

20 the applicable parts aren't filled out, before

21 they go any further, they send that back and say

22 this is not a complete application; is that

23 correct?

24 MR. FREVERT: Not always. I mean, in some

L.A. REPORTING (312) 419-9292

1 instances we may ask for that supplemental

2 information and carry on with our review

3 simultaneously.

4 MR. HARRINGTON: But you do ask for that to

5 be completed --

6 MR. FREVERT: We do ask for it to be

7 completed.

8 MR. HARRINGTON: -- before you even get to a

9 substantive issue?

10 MR. FREVERT: It is possible. Yes.

11 MR. HARRINGTON: Are you going to have forms

12 for nondegradation review?

13 MR. FREVERT: We are proposing to adopt

14 procedures to help permit applicants and the rest

15 of the world understand how we view the

16 requirements of the standard and how we are going

17 to go through the review. We are not proposing to

18 add any specific elements to any of our existing

19 application forms or create new application forms.

20 MR. HARRINGTON: If an application comes in

21 and there is an increase in one of the pollutants,

22 we will take the renewal to start with, and the

23 elements of a nondegradation review are not

24 addressed in the application, there is no

L.A. REPORTING (312) 419-9292

1 alternative consideration, there is no economic

2 consideration, no social impact consideration,

3 what happens to that application when it comes in?

4 MR. FREVERT: Any one of a number of things.

5 There are circumstances like that going on right

6 now and will continue in the future where we will

7 complete our review and we will address the

8 requirements of the antidegradation and will

9 document them in a fact sheet without ever

10 requesting any additional input from that

11 permittee. And there are other circumstances

12 where we may feel that the antidegradation

13 requirements are such that we need to go back to

14 that applicant and open a dialogue or at least get

15 some additional factual information.

16 MR. HARRINGTON: Maybe this is a question

17 that the Agency lawyers need to address like

18 Mr. McSwiggin does, maybe it can't be answered

19 now.

20 But the question I have is would the

21 Agency feel justified in returning that permit

22 application as incomplete if the factors of the

23 nondegradation review are not addressed in the

24 permit application?

L.A. REPORTING (312) 419-9292

100

1 MR. FREVERT: I guess I have trouble with

2 your term returning. Do you mean like a formal

3 denial?

4 MR. HARRINGTON: Yes, denial.

5 MR. FREVERT: Not unless he have exhausted

6 attempts for further information requests and they

7 are ignored or denied, no.

8 MR. HARRINGTON: What if the deadline for

9 renewing the permit when you get to it has about

10 run out and you don't get an extension from the

11 applicant, are you going to deny the permit for

12 failure to address each one of the elements of

13 nondegradation review?

14 MR. FREVERT: Tom, you can help me. I am not

15 sure there is a deadline for NPDES issuance.

16 HEARING OFFICER TIPSORD: Excuse me, can we

17 have you sworn in first?

18 (Whereupon Mr. Thomas G.

19 McSwiggin was sworn into the

20 record.)

21 MR. McSWIGGIN: Thomas G. McSwiggin. The

22 scenario you are describing where we have diverted

23 a review on a permit renewal on an NPDES permit

24 application, the regulation requires that you

L.A. REPORTING (312) 419-9292

101

1 submit that application 180 days prior to the

2 expiration date of that permit. If you are in

3 that mode, then the permit will -- your existing

4 permit will continue by the operations of the

5 Administrative Procedures Act, and then we will

6 have the luxury of the time, so to speak, to go

7 forward with the clarification process to seek the

8 additional information that we need.

9 Now, if you fail to timely apply, my

10 reading of that is that you would be on your own

11 for operating without a permit while the

12 administrative process grinds away to get the new

13 permit in place. So you run some risk.

14 MR. HARRINGTON: Let me pursue that and

15 whoever is appropriate can address it. I think I

16 am trying to get to the point that can the permit

17 be denied because somebody doesn't address in

18 their application or doesn't in your mind

19 adequately respond to each of the factors you have

20 set out in the proposed agency guidance for permit

21 application for nondegradation?

22 MR. FREVERT: If we don't feel like we have

23 at the end of that review process a complete

24 defendable demonstration that we can present in a

L.A. REPORTING (312) 419-9292

102

1 fact sheet, I do believe we have the prerogative

2 to deny that load increase. That is different

3 from denying the permit. We can issue a permit

4 that does not authorize that load increase.

5 MR. HARRINGTON: If you deny the permit

6 because you have asked for additional information

7 which you didn't get, for example, on again

8 alternatives or economic and social impact, when

9 somebody takes it and appeals to the Board, what

10 standards should the Board -- is the Board going

11 to be asked to consider in deciding whether your

12 agency acted correctly in denying that?

13 MR. FREVERT: I am trying to fully understand

14 your question here. I guess what you are saying

15 is ultimately there is a disagreement on what

16 antidegradation requires between the Agency and

17 the permit applicant, what is the basis for the

18 appeal?

19 MR. HARRINGTON: Yes.

20 MR. FREVERT: In that regard we have tried to

21 define in some of our examples and some of our

22 implementation procedures the level of

23 information, the types of information we are

24 looking for. Our workgroup considered several

L.A. REPORTING (312) 419-9292

103

1 times how you can come up with a crisp cutoff that

2 deals with a whole gamut of circumstances from the

3 smallest to the biggest for trying to deny the

4 nastiest chemical. And we managed to try to craft

5 some general classifications of type of

6 information, level of effort that is warranted.

7 But if you are looking for an absolute

8 yardstick to say that antidegradation can boil

9 down to, for instance, sound oxygen level of 6.00,

10 we have yet to produce that.

11 MR. HARRINGTON: Understood. But, for

12 example, the application comes in, there is no

13 demonstration of alternatives. There is no

14 demonstration of economic and social impact.

15 There is water quality data that says ten feet

16 down the stream you can't find the difference in

17 this increase or not, but there is a lot of social

18 upheaval about the source, the Agency denies it

19 for failing to address these additional issues.

20 And I can well see if the citizens are concerned

21 about a source they may look to something like

22 that, the Agency may consider that concern and

23 say, well, we want to consider all these factors

24 then. You deny the permit. There is an appeal.

L.A. REPORTING (312) 419-9292

104

1 What does the Board look at? Do they look at the

2 Agency factors, the Agency guidance?

3 MR. FREVERT: I would think beyond the Agency

4 guidance they would have to look at the extent and

5 the rigger and the nature of the review and the

6 information available to what extent it is

7 consistent with the decision the Agency made.

8 MR. HARRINGTON: Maybe what I am getting at,

9 is the Board going to be bound by the Agency

10 procedures?

11 MR. FREVERT: No. The Board is not bound by

12 the Agency procedures. The Agency is trying to

13 clarify what we are looking for and how we intend

14 to encourage and maintain lines of communication

15 and lines of efficiency to reach a decision.

16 Perhaps what you are getting at is the fundamental

17 nature of the antidegradation policy under federal

18 law, which says it goes beyond -- this standard

19 exists to protect a specific use and that specific

20 use is defined as being achieved at this level.

21 The antidegradation policy at the federal level

22 basically says any increment of water quality

23 better than what you define as the floor necessary

24 to protect that existing use is a public resource,

L.A. REPORTING (312) 419-9292

105

1 and that public resource shall be allocated to

2 other people consistent with the general intent of

3 the public at large and their overall social and

4 economic goals.

5 I hate to use this word, but I don't

6 know how to get around it. The nature of

7 antidegradation in the Clean Water Act imparts a

8 judgment decision. It is not science. It is

9 policy. And we are defining that policy as

10 strictly and rigorously as we are capable of doing

11 now. And I believe in that context the way we are

12 operating today is as good as most other states

13 that I am familiar with building it.

14 I understand your point and I recognize

15 some merit in the fact that this isn't pure

16 science. This is public policy.

17 MR. HARRINGTON: Now is not the time for me

18 to be making statements, but I will try to just --

19 you agree one of the questions here is what goes

20 into the Board regulations is them making public

21 policy of the rulemaking body of the state and

22 what is left to the discretion of the Agency

23 without Board guidance. That is one of the issues

24 the Board has to decide, isn't it?

L.A. REPORTING (312) 419-9292

106

1 MR. FREVERT: Yes.

2 MR. HARRINGTON: Okay. And the issue -- and

3 part of that is also what standard the Board

4 applies when it reviews an agency decision for

5 public policy; is that correct?

6 MR. FREVERT: That's correct.

7 MR. HARRINGTON: Where in the Agency proposed

8 rules are the standards by which the Agency --

9 rules proposed for adoption are the standards that

10 the Agency will follow in processing a

11 nondegradation application and that the Board will

12 follow in reviewing the Agency decision?

13 MR. FREVERT: I guess my answer is they are

14 contained right there within the body of the rules

15 themselves. The general statement and the

16 assurance of public participation are the two

17 primary objectives of that standard and then the

18 process of what you are comparing different public

19 objectives to, environmental objectives versus

20 social and economic objectives.

21 MR. HARRINGTON: In the Agency proposal there

22 is a list of things to be addressed; is that

23 correct?

24 MR. FREVERT: That's correct.

L.A. REPORTING (312) 419-9292

107

1 MR. HARRINGTON: The Agency proposed agency

2 rules?

3 MR. FREVERT: That's correct.

4 MR. HARRINGTON: Those are not in the Board

5 rules; is that correct?

6 MR. FREVERT: As of this point, they are not.

7 They are broad categories of issues to be

8 considered. And to the extent, you know, that can

9 resolve some of your concern, I am sure we can

10 work on that.

11 MR. HARRINGTON: I am not sure, just so the

12 record is clear, that I have a particular concern

13 or a particular solution. But I think there is

14 some issues the Board is going to have to consider

15 that I am trying to bring out for the Board's

16 consideration and for the party's consideration to

17 how we might want to deal with them.

18 MR. FREVERT: Fair enough.

19 MR. HARRINGTON: You reference in the

20 proposed Board rules that an application for an

21 NPDES permit modification or NPDES permit where a

22 401 certification must meet the standards set

23 forth in the Agency rules; is that correct? Am I

24 reading that right?

L.A. REPORTING (312) 419-9292

108

1 MR. FREVERT: I don't think you are reading

2 that right. If you are, then we have some editing

3 to do.

4 MR. HARRINGTON: Maybe I can -- if the

5 application -- can the Agency change the criteria

6 they are going to consider on a nondegradation

7 application without going through the Board?

8 MR. FREVERT: I don't know that the Agency

9 can change the criteria if they consider it. I

10 think the Agency can, indeed, adjust and will have

11 to adjust the types of information and the amount

12 of information that is necessary to address those

13 criteria in virtually every case.

14 MR. HARRINGTON: Well, for example, could

15 the Agency specify in their rules how many

16 alternatives have to be considered in every

17 application?

18 MR. FREVERT: I don't know if they can or

19 not, but I can guarantee you we won't. I am not

20 going to put a number on that. Some places there

21 are no alternatives. Other places there are

22 infinite alternatives.

23 MR. HARRINGTON: Do you recall saying several

24 years ago when we had the water toxic regulation

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1 going through the Board?

2 MR. FREVERT: I don't know whether I remember

3 that or not.

4 MR. HARRINGTON: You were the principal

5 agency witness, weren't you?

6 MR. FREVERT: Yes, vaguely.

7 MR. HARRINGTON: Do you recall several times

8 don't worry because that is not something I would

9 ever do?

10 MR. FREVERT: I don't recall that, no. But I

11 won't, you know...

12 MR. HARRINGTON: Wasn't it shortly after that

13 you were transferred to the air program?

14 MR. FREVERT: Somebody did something I

15 wouldn't do, so they brought me back. I think I

16 understand the point you are getting at. And I

17 want to emphasize these are not totally forever

18 implementation procedures. These are

19 implementation procedures that the Agency is

20 suggesting to make available to facilitate the

21 process for people with basic information on how

22 to participate and how to move it along rapidly.

23 There is no pass/fail criteria in those

24 procedures. I want everybody to understand that.

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1 This is -- our procedures define the process.

2 They don't set a pass/fail criteria.

3 MR. HARRINGTON: These are issues to be

4 considered, not standards to measure, would that

5 be a fair way of saying that?

6 MR. FREVERT: I can agree with that.

7 MR. HARRINGTON: Again, getting back to the

8 applicability issue, is a full nondegradation

9 review going to be required of somebody who

10 installs pollution control equipment which has the

11 impact of increasing one pollutant perhaps while

12 it decreases others? I will give you an example.

13 Somebody is required to install a chlorination

14 system to treat cyanide or ammonia, so they will

15 add chlorides to the stream to retake out the

16 cyanide or ammonia. Will that require a

17 nondegradation review?

18 MR. FREVERT: Well, your first comment, your

19 first question is would we require a full

20 nondegradation.

21 MR. HARRINGTON: Yes.

22 MR. FREVERT: There is no such thing as a

23 full review. There is no ultimate review. We are

24 trying to scale and design these reviews to

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1 address the nature of the individual application

2 to save everybody's resources. In your example,

3 -- probably a better example is cross-media

4 things, in order to prove air quality you are

5 adding some small amount to the parameter of a

6 waste stream. There would be some level of review

7 done in those instances and it would be relatively

8 minor. And I think the outcome would be pretty

9 obvious to most people.

10 To a great extent, that demonstration

11 would almost boil down to our drafting the summary

12 fact sheet. Because in most of those cases the

13 engineering feasibility studies have done

14 everything we would imagine wanting their

15 degradation anyway. They come to us with that

16 conclusion. Those things have been done, and they

17 usually come in a report anyway.

18 MR. HARRINGTON: Let me take an air example.

19 I was trying to avoid using that because it is a

20 little complex. But would the Agency be in a

21 position to say, well, you are putting in

22 scrubbers and we think -- the water group thinks

23 you would be better off with an incinerator on

24 those stacks so you don't have to discharge that

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1 water?

2 MR. FREVERT: I am fairly confident that not

3 I but my successors are not going to do that sort

4 of thing.

5 In those circumstances we are a unified

6 agency, and our water quality engineers don't step

7 over the air pollution engineer's evaluations and

8 vice versa.

9 MR. HARRINGTON: The air pollution engineer

10 might say, hey, they both achieve air quality

11 standards, that is all I have to worry about. So

12 you want scrubbers because you are going to save

13 some money or you think they are safe or

14 something, that isn't our concern as an air

15 pollution engineer. I am trying to get to this

16 alternative demonstration issue.

17 MR. FREVERT: If there are no ramifications

18 to any other media than ours and there are two

19 equally desirable alternatives from all other

20 aspects and one has a better water quality

21 outcome, we would work toward making that the

22 preferred option, yes. But, you know, with these

23 examples you are coming up with, I don't know how

24 to -- I don't know how to concoct an example so

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1 specific that you are always going to get the same

2 answer.

3 It is the same in water. If you

4 discharge something into an intermittent stream

5 versus the Mississippi River, the level of review

6 and the level of evaluation, even the types of

7 information we are going to ask for, are going to

8 vary somewhat.

9 MR. HARRINGTON: The examples I am using,

10 just so you understand, are all examples I have

11 dealt with. I am not making them up. One of the

12 other examples I wanted to ask about is if

13 somebody has an ammonia discharge, which is a

14 concern in many streams, puts in a biological

15 treatment system so they reduce the ammonia, but

16 you have higher discharges of nitrates. Will that

17 require an antidegradation review?

18 MR. FREVERT: In that circumstance, no. But

19 I might point out that over and above

20 antidegradation reviews, of course, are today's

21 water quality standard reviews. And even when we

22 don't do an antidegradation, we are always going

23 to make sure that all of those parameters comply

24 with the standards. And in your example, sometime

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1 in the future we may be looking at nitrate, total

2 nitrogen standards. So consideration will expand

3 in the future.

4 MR. HARRINGTON: I understand. In all my

5 examples I am assuming compliance with water

6 quality standards because, obviously, you won't

7 permit a violation of those in any case.

8 MR. FREVERT: Good. We are on the same

9 ground there.

10 MR. HARRINGTON: Understood then. I have

11 some more questions, but I would be happy to defer

12 them until anyone else has done their questions or

13 if you want to take a break at this time.

14 HEARING OFFICER TIPSORD: Could we go off the

15 record?

16 (Discussion had off the

17 record.)

18 (Whereupon the matter was

19 recessed until 1:15 p.m. this

20 date, November 17, 2000.)

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1 A F T E R N O O N S E S S I O N

2 HEARING OFFICER TIPSORD: We are back on the

3 record. Mr. Ettinger?

4 MR. ETTINGER: I motion that we don't read

5 the prefiled testimony into the record in order to

6 save time and because there are copies sitting

7 over there. I think people have had a chance to

8 get it by now. If that is not a problem, I think

9 it would save us some time this afternoon.

10 HEARING OFFICER TIPSORD: Is there any

11 objection to taking the remaining prefiled

12 testimony into the record as if read? Okay,

13 seeing none, at the appropriate time, we will

14 enter each as an exhibit at that time. Thank you.

15 And let's continue with questioning of

16 Mr. Frevert. Does anyone have any additional

17 questions? Yes, please.

18 MS. FRANZETTI: My name is Susan Franzetti.

19 I am appearing today on behalf of the American

20 Bottoms Regional Waste Water Treatment Facility,

21 Sauget, Illinois. Mr. Frevert, are you ready?

22 MR. FREVERT: Good afternoon.

23 MS. FRANZETTI: I am going to turn your

24 attention to 302.105(c), high quality waters. Is

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1 the intended meaning and scope of the proposed

2 definition of high quality waters the same as in

3 the federal antidegradation requirement, namely,

4 that high quality waters are those whose existing

5 water quality is better than necessary to support

6 fishable, swimmable uses?

7 MR. FREVERT: This is language that we sort

8 of carried over from the existing standard, and it

9 is not restricted to then water quality necessary

10 to support fishable, swimmable uses. It would

11 apply to any other use you might envision, and

12 that is -- the reason we retain that language is

13 we think it is consistent with the existing state

14 policy.

15 To the extent that federal guidance

16 restricts antidegradation to its relationship to

17 fishable and swimmable only, it is something we

18 kicked around a little in the workgroup hearings.

19 And I don't know that -- I don't believe, for

20 instance, you can come up with a parameter to add

21 a water supply ramification and no fishable or

22 swimmable ramification. They would say that was

23 not subject to antidegradation. That is a

24 debatable issue in terms of the federal guidance.

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1 But our proposal today is not

2 restricted to fishable and swimmable applications.

3 It is retaining the existing policy that says

4 chemical water quality is better than the water

5 quality standards.

6 Typically, those water quality

7 standards are based on achieving fishable,

8 swimmable uses. But, for instance, an incremental

9 increase in copper, say, which is still well below

10 the levels necessary to protect fishing and

11 recreational uses, we view an increase like that

12 as consistent with the state nondegradation

13 policy.

14 MS. FRANZETTI: For high quality waters.

15 MR. FREVERT: For high quality waters.

16 MS. FRANZETTI: Let me make sure I understand

17 you correctly. If I have a water whose use

18 designation is secondary contact but in some

19 portion of that water body the water quality is

20 better than secondary contact standards but not as

21 good as general use standards, is that a high

22 quality water --

23 MR. FREVERT: Yes.

24 MS. FRANZETTI: -- under this proposal?

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1 MR. FREVERT: Yes.

2 MS. FRANZETTI: And if I have an increase of

3 loading, I have to go through the high quality

4 waters demonstration?

5 MR. FREVERT: Yes.

6 MS. FRANZETTI: So in that regard this is

7 stricter than the federal Tier 2 antidegradation

8 requirement?

9 MR. FREVERT: I think we are having a

10 misconnect here. Our secondary contact waters

11 were set at water quality standards defined as

12 adequate to protect the indigenous population.

13 That being said, they are less than the general

14 use waters, which are -- they are defined as a

15 diverse and healthy population.

16 But to the extent that our secondary

17 contact waters, indeed, have better water

18 chemistry than the standards that are established

19 for the indigenous aquatic life classification

20 that currently exists, this rule applies, and the

21 intent is to not allow that water body to be

22 deteriorated down to that basic level that is

23 barely adequate to protect indigenous populations,

24 without some kind of a documentation or

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1 demonstration.

2 MS. FRANZETTI: What criteria are you going

3 to use to identify a high quality water?

4 MR. FREVERT: Water whose existing quality

5 exceeds established standards is the high quality

6 water for the application of this standard.

7 MS. FRANZETTI: And how do I determine -- how

8 will the Agency determine whether or not a water

9 body exceeds the established standards of this

10 part?

11 MR. FREVERT: Primarily through chemical

12 analysis.

13 MS. FRANZETTI: Can you explain what you mean

14 by that?

15 MR. FREVERT: I mean a DO standard is 6 in

16 the actual water quality, the DO never drops below

17 7. That is a high quality. You have got an

18 increment of reserve of similar capacity above the

19 absolute standard, which is the floor. If the

20 standard for iron is 1 and your existing water

21 chemistry is 1/10, that is a high quality water

22 from the perspective of its iron loading.

23 MS. FRANZETTI: You said you would rely

24 primarily on chemical standards. Anything else

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1 that is going to be considered in identifying a

2 high quality water?

3 MR. FREVERT: I can think of examples, for

4 instance, in the Corps Section 404 permit program

5 where a water body may have a specially high

6 quality habitat where there is a construction

7 activity that threatens to diminish that habitat.

8 It would be subject to that kind of review.

9 MS. FRANZETTI: Will the Agency look at as a

10 part of the determination whether a water body is

11 a high quality water, whether any a remaining

12 assimilative capacity exists in the water body?

13 MR. FREVERT: I think, indeed, that is --

14 that is inherently part of the review to achieve

15 the water quality standards themselves.

16 MS. FRANZETTI: Taking your other example of

17 a 7 versus 6 DO comparison, does the 7 indicate

18 versus the 6 that there is remaining a simulative

19 capacity?

20 MR. FREVERT: To the extent that we have the

21 information to define those conditions that truly

22 exist at that time, yes. Other issues, we will do

23 a review, basic water quality standards review,

24 against some theoretical worse case conditions

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1 like 7 Q 10 some estimates of the water chemistry

2 for that. In that case we may not know exactly

3 what the ambient water quality of the variation in

4 the ambient water variation is, but we can assure

5 a discharge limitation that will not cause a

6 violation during those extreme circumstances.

7 So that is the way we can meet water

8 quality standards without absolutely knowing the

9 amount of residual of similar capacity for any

10 particular parameter that exists on a day in and

11 day out basis.

12 Similar capacity is going to vary

13 almost continuously or constantly.

14 MS. FRANZETTI: So given your responses, if I

15 am a member of the regulated community and I may

16 think I am dealing with or facing an increase in

17 loading, and given that the demonstration I have

18 to make is going to depend on what type of water

19 body I am discharging to, how does the Agency

20 contemplate a permittee, for example, in existing

21 NPDES permittees who got a proposed increased

22 loading, how do they figure out what type of water

23 body they are for antidegradation purposes

24 discharging to?

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1 MR. FREVERT: I would assume when they

2 identify the outfall location in their permit

3 application they know what water body they are

4 going to.

5 MS. FRANZETTI: But, Toby, in my permit

6 application I have also got to make my antideg

7 showing, so at that point I need to know what type

8 of water I am going to. That is why I am asking

9 the question. How do you --

10 MR. FREVERT: Not what water body, but what

11 the existing conditions are.

12 MS. FRANZETTI: Is it existing use? Is it

13 high quality water? I think, you know, an ORW I

14 think that I understand because that has to go

15 through a public notice proceeding and there will

16 be a published list. But as between, do I simply

17 need to show I am going to maintain and protect

18 existing uses or am I thrown into the stricter

19 high quality waters demonstration at the time I

20 make my permit application, how am I going -- how

21 am I supposed to know that?

22 MR. FREVERT: Well, there are a number of

23 ways of doing it. To begin with, I think you

24 should assume you are going to be in a high

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1 quality water. And I would think perhaps the only

2 waters in the state of Illinois that are not going

3 to be considered high quality are those that are

4 already impaired.

5 MS. FRANZETTI: So the provision in here on

6 existing uses that you have to make a showing to

7 protect existing uses and that is it, you are

8 saying that is really intended to only imply to

9 impaired waters?

10 MR. FREVERT: That is my understanding of

11 federal requirements and that is our proposal,

12 yes.

13 MS. FRANZETTI: Let's go back to my question.

14 MR. FREVERT: There is not much in

15 population. It is either impaired or it is high

16 quality. There might be one that is absolutely on

17 the line that doesn't dip one way or the other,

18 but that is theoretical. Most of our waters in

19 Illinois are of high quality for some of the

20 regulated parameters, probably all of them.

21 For instance, I will try to give you a

22 real world example to help you out. We may be in

23 a water body that is violating ammonia standards.

24 At the same time it may have, I don't know, a

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1 cooper standard that has a very low copper

2 concentration, very high quality. Just because we

3 have an ammonia problem doesn't mean we are going

4 to allow the copper loading to come up after we

5 address the ammonia problem.

6 So the intent of this, both our

7 proposal and I believe the federal law, is we are

8 trying to minimize the amount of incremental

9 additional pollution coming into the resources

10 consistent with the goals of the Clean Water Act,

11 recognizing that that absolutely is not going to

12 work, but there needs to be a process to recognize

13 and allow society to continue functioning. How

14 you justify that you are, indeed, deteriorating

15 the water chemistry incrementally every time you

16 add loads and how do you -- how do you allocate

17 that resource in such a fashion that the public

18 has access to understand and provide input on that

19 decision.

20 The bottom line to your question is I

21 think you can assume safely every water in the

22 state of Illinois will fall into the high quality

23 category.

24 MS. FRANZETTI: Except for those that are on

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1 the 303(d) list?

2 MR. FREVERT: Except for those that are

3 impaired, whether they are on the 303(d) list or

4 not. Those that have a nonimpairment, they are

5 not meeting some borderline requirement.

6 MS. FRANZETTI: Is the intention that the

7 antidegradation review will be done and determined

8 based on a use-driven review for the water or on a

9 parameter-by-parameter basis?

10 MR. FREVERT: The intent of the program is

11 that specific water quality standards are

12 established and defined and set to protect

13 specific designated uses, which must include all

14 known existing uses. And then antidegradation is

15 another tier of the standards program placed over

16 and above that to show that you only move down

17 towards that floor when it is justifiable.

18 MS. FRANZETTI: Let me put my question a

19 different way because I think it wasn't clear. If

20 the water body I am discharging to is listed as

21 impaired for ammonia and for nothing else, and

22 that is certainly possible, right, that you are

23 just listed based upon a single impairment?

24 MR. FREVERT: That's correct.

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1 MS. FRANZETTI: If my increase loading is

2 only for ammonia, no other parameters, am I just

3 in a Tier 1 review under the proposed regs where I

4 just have to show all protected existing uses?

5 MR. FREVERT: In that scenario you have to

6 show you are going to be able to avoid any

7 contribution to that existing ammonia violation.

8 So if you can discharge ammonia at the water

9 quality standard, you can get a permit.

10 MS. FRANZETTI: I pass antidegradation with

11 you, correct?

12 MR. FREVERT: Yes. If you are asking for an

13 ammonia discharge, some increment higher than the

14 water quality standard, it would be prohibited by

15 the standard. It is not an antidegradation

16 review. It is a basic water quality.

17 MS. FRANZETTI: I mean to -- I am sorry. I

18 didn't mean to cut you off. In the interest of

19 saving time, I wanted to get clarification on the

20 point where your regulatory proposal talks about

21 any increase in loading, not whether or not it is

22 above the water quality standard or not. So I may

23 be going above my previous loading on ammonia to

24 an impaired stream and I am trying to determine

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1 the showing I have to make that I don't violate

2 water quality standards.

3 MR. FREVERT: In an impaired water body,

4 impaired because of ammonia, if you propose an

5 ammonia increase that is still at or below the

6 water quality standard, that is the extent of the

7 antidegradation test in that example.

8 MS. FRANZETTI: Let me take an example that

9 moves through high quality water. If I am

10 discharging -- let's stay with ammonia at a level

11 -- I have been discharging it at a level well

12 below the ambient ammonia concentration in that

13 high quality water, I am proposing an increase

14 that is still well below the ambient water

15 quality, the ambient concentration for ammonia in

16 that water body, will I trigger antidegradation

17 review?

18 MR. FREVERT: Yes.

19 MS. FRANZETTI: And why is that?

20 MR. FREVERT: Because you are proposing an

21 increased loading.

22 MS. FRANZETTI: That is all that matters

23 under these proposed regulations?

24 MR. FREVERT: You are talking about a

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1 scenario where you can increase loading and the

2 net result is the instream concentration would

3 still be less?

4 MS. FRANZETTI: Correct.

5 MR. FREVERT: Okay.

6 MS. FRANZETTI: Is your answer still the

7 same?

8 MR. FREVERT: Well, I think in this case the

9 review would indicate this is an environmentally

10 beneficial thing and you would get your permit.

11 MS. FRANZETTI: But I would still have to go

12 through an antidegradation review?

13 MR. FREVERT: We would still have to document

14 in the permit fact sheet the rationale for our

15 allowing that increment loading to be discharged.

16 You probably wouldn't have to do anything.

17 But we would have the obligation to

18 explain our rationale on how we concluded that was

19 a permittable loading increase.

20 MS. FRANZETTI: Let's stay with this concept

21 of lowering of water quality. The federal

22 regulation in 40 CFR 131.12(a)(2) uses the

23 language lower water quality. And under the

24 federal regulations, is it your understanding that

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1 an increase in loading has to cause a lowering of

2 water quality before antidegradation requirements

3 apply?

4 MR. FREVERT: Increase in loading has to --

5 MS. FRANZETTI: Under the federal

6 regulations, your testimony talks about

7 paralleling the federal regulation and I am trying

8 to figure out where you do and where you don't.

9 MR. FREVERT: Fair enough.

10 MS. FRANZETTI: So under the federal

11 regulations, does an increase in loading have to

12 cause a lowering of water quality before the

13 antidegradation requirements apply?

14 MR. FREVERT: I am not sure I can

15 specifically point to the language you are

16 referring to now and give you an answer. I think

17 the issue you are probably getting at is how do we

18 define the lowering of water quality.

19 MS. FRANZETTI: No. I think that is a

20 separate issue. What I am trying to understand is

21 is there, in fact, a two-step process that you

22 have to go through before you trigger the

23 application of the antidegradation requirements,

24 step one being you do have an actual proposed

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1 increase in loading, but then a necessary step two

2 has a condition precedent to it applying is that

3 that proposed increase in loading has actually got

4 to lower water quality before I would have to make

5 an antidegradation showing.

6 MR. FREVERT: Okay.

7 MS. FRANZETTI: And I am confused both by the

8 language of the proposal and some of the testimony

9 today. It seems you might be saying, no, there is

10 not that two-step process; in fact, we are going

11 to just deem any increase in loading to lower

12 water quality, and so you -- if you got an

13 increase in loading, that is it, that is the sole

14 trigger and now you have got to make the

15 demonstration in your permit application.

16 MR. FREVERT: I know where you are going now.

17 And we dealt with that to some extent in the

18 workgroup and we are -- and I thought I did an

19 adequate job of explaining that there was some

20 complexities there, and I didn't know that the

21 benefit of doing that or not doing that warranted

22 much of anything other than it created a second

23 opportunity or requirement for the Agency to make

24 a decision, which perhaps is even more difficult

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1 than a lot of the other decisions we have to make.

2 But I tried to make it clear at the onset, to

3 avoid dealing with that issue, we stayed -- we are

4 proposing to stay with existing policy and

5 existing language, water whose existing quality is

6 better than the existing standards. It is a

7 standard that currently exists. And we propose to

8 retain that rather than come up with some other

9 definition that would be perceived as a

10 backsliding on existing state standards.

11 It is possible that some people view

12 that language and that proposal as somewhat more

13 rigorous than the federal criteria. We can debate

14 that if you want. My point is I tried to avoid

15 that debate and stay with existing state policy on

16 that issue.

17 MS. FRANZETTI: I really am trying not to

18 debate, but rather I want to confirm or clarify

19 what the intended meaning is of your proposed

20 rules.

21 MR. FREVERT: The intended meaning is if you

22 ask for a load increase, it is potentially going

23 to move you closer to the water quality standards

24 and minimize the amount of increment that you have

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1 better than water quality standards. That is that

2 a piece of that public resource, the similar

3 capacity of the state's water resource that should

4 be subject to a conscious decision of whether or

5 not you want to do that through an antidegradation

6 demonstration and a public participation process.

7 MS. FRANZETTI: The proposed regs do use the

8 phrase more than once lowering of water quality.

9 And I am -- I need to know, I am asking what is

10 the meaning of that. Why is that language there?

11 Or does it really have no meaning in the proposed

12 regulations, all you need to look at is any

13 proposed increase in loading?

14 MR. FREVERT: The proposed increase in

15 loading in our proposal will trigger some

16 conscious thought on the part of the Agency. And

17 if that consideration or that review and that

18 determination concludes that the actual instream

19 concentration is going to be better than worse,

20 then we are not going to carry any demonstration

21 beyond that and we are not going to ask the

22 applicants for any information beyond that. But

23 we will make that decision, and that is -- that is

24 a form of an antidegradation review in my mind.

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1 MS. FRANZETTI: Would the Agency be

2 supportive of a proposed regulation that allows

3 for that decision to be made first before a

4 permittee would need to go ahead and make the

5 showings regarding reasonable alternatives and

6 social and economic benefit?

7 MR. FREVERT: In circumstances where that can

8 be demonstrated relatively easily and

9 straightforwardly and conclusively, yes, those are

10 the kinds of considerations we are certainly still

11 receptive to. What we are trying to avoid is a

12 lot of significance reviews or applicability

13 reviews that merely require additional steps and

14 additional resource commitments in making the

15 ultimate determination of whether or not you are

16 diminishing the public resource without public

17 input.

18 So, yes. And we struggled with that.

19 There were several attempts, I believe, to do that

20 during the workgroup session. And when the dust

21 settled, our judgment was that those things would

22 actually be more burdensome, more time-consuming

23 than doing the abbreviated review that we thought

24 would be in in order for those particular

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1 examples.

2 MS. FRANZETTI: And is the burdensome issue

3 you are referring to on the permitting?

4 MR. FREVERT: It would be both. I think some

5 of those -- some of the proposed exemption

6 language or avoidance of demonstration language

7 that was presented to us looked to me like there

8 could be circumstances where that would actually

9 double or triple the workload of my people and

10 your people. Then when we are through with that,

11 all we have done now is made a decision whether or

12 not to do a demonstration without having to do a

13 demonstration. So that is what we have been

14 trying to avoid.

15 I hopefully been on record saying

16 additional ideas that come in and transparent

17 enough that everybody knows how it works, we are

18 still receptive to that.

19 MS. FRANZETTI: But you agree there will be

20 circumstances where the permittee without much of

21 any group can make the showing that they don't

22 lower water quality and it's beneficial -- and/or

23 it is beneficial to the receiving water, and you

24 can review that very quickly? That in those

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1 instances you are not opposed to allowing for that

2 regulatory approach to resolving the

3 antidegradation issue?

4 MR. FREVERT: I think the distinction is I

5 would describe what you just said as actually

6 doing it and completing the review rather than

7 demonstrating an exemption from it.

8 MS. FRANZETTI: okay.

9 MR. FREVERT: Maybe this is semantics. I

10 think the same kinds of considerations you are

11 intending on -- and you call it exemption. I call

12 it a completion of a review.

13 MS. FRANZETTI: I didn't mean to call it an

14 exemption.

15 MR. FREVERT: Okay.

16 MS. FRANZETTI: If we can go back to the

17 issue of whether the water body exceeds -- the

18 quality of the water body exceeds the established

19 standards of this part language that is in

20 proposed 302.105(c)(1), what does the reference to

21 established standards of this part refer to?

22 MR. FREVERT: The water quality standards of

23 subtitle (c).

24 MS. FRANZETTI: So that would certainly

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1 include general use water quality standards, for

2 example?

3 MR. FREVERT: Yes.

4 MS. FRANZETTI: Would it also include subpart

5 (f) criteria?

6 MR. FREVERT: Yes.

7 MS. FRANZETTI: Even though those don't go

8 through public notice and rulemaking?

9 MR. FREVERT: Subpart (f) is a -- it is a

10 water quality standard. It has gone through a

11 hearing adoption process. It is a standard.

12 MS. FRANZETTI: Well, I think that there is

13 board opinion that it is a criteria, not a

14 standard.

15 MR. FREVERT: Perhaps a number that we

16 determined from that standard for use in a permit

17 is a criteria. But subpart (f) is a narrative

18 standard to specify how chemically safe numbers

19 are to be derived in the absence of a numeric

20 standard. The point being, we don't have a

21 published numeric standard in the state of

22 Illinois for dioxin, I don't believe. But that

23 doesn't mean that dioxin would be -- that somebody

24 had a waste water source that had dioxin in it

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1 that it would automatically be relieved at the

2 burden to look at antidegradation.

3 There are a whole plethora of chemical

4 pollutants that we are regulating now that we

5 don't have numeric standards for, and

6 antidegradation will apply to them the same as it

7 will the numeric standards.

8 MS. FRANZETTI: The last point, with respect

9 to the language in the Agency rules Part 354 and

10 it is in 101 and it is 102 and 103 of those

11 proposed agency rules, where you refer to an

12 increased loading that necessitates the issuance

13 of a new NPDES permit or recertification of an

14 existing permit, is that the same intended meaning

15 -- it seems that it is from your prior testimony

16 today -- as the language used in the Board --

17 proposed Board rule of an increased loading

18 subject to an NPDES permit?

19 MR. FREVERT: I believe it is, but I am not

20 sure I fully followed your question.

21 MS. FRANZETTI: Well, my question is there is

22 a difference in the language used about when an

23 increase in loading does trigger antidegradation

24 as between the Board rule language and the Agency

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1 rule language. The Board rule language just says

2 an increase loading subject to an NPDES permit.

3 You pointed out in your testimony today that if

4 you go up from your existing loading but you still

5 stay within your permit limits, then you don't

6 trigger antidegradation review. And that seems to

7 be more clearly conveyed in the Agency rule

8 language. I just want to clarify that the intent

9 of the Board rule proposed language, albeit

10 different from the Agency rule, is the same.

11 MR. FREVERT: That's correct. The intent was

12 the same. However, I think there is a conscious

13 difference in writing style in that our procedures

14 drafted partially as sort of a road map or a

15 helpful manual to applicants and their consulting

16 engineers and the other design staff, and we may

17 have deviated from the actual legal language a

18 little more intentionally in some places to make

19 it a little more understandable to people. But

20 there is no intent to change the legal substance.

21 It is more a matter of trying to be a little more

22 user friendly.

23 MS. FRANZETTI: That is all the questions I

24 have.

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1 HEARING OFFICER TIPSORD: Thank you,

2 Ms. Franzetti. Anyone else?

3 MR. ETTINGER: I have a few. Going back to

4 your original filing with regard to this, I think

5 it is part of the gold book, Exhibit A. If you

6 look at page 411 within Exhibit A, it gives a

7 series of examples of types of development and the

8 area where there has been an ONRW designation that

9 would still be possible even given that

10 designation. Do you anticipate that the sorts of

11 development in the area of a stream that had been

12 designated ONRW that is -- are judged to be

13 permissible in this gold book would be permissible

14 under your rule?

15 MR. FREVERT: Yes. Certainly it was not our

16 intent to make this more restrictive than our

17 perception of the federal requirements.

18 MR. ETTINGER: So there would be some types

19 of development that would be possible within the

20 vicinity of any water that had been designated

21 ORW?

22 MR. FREVERT: A relatively small amount of

23 specific exemptions, I believe, would apply. And

24 there is some short-term and temporary criteria

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1 that apply around that.

2 Yes, there would be a few things

3 allowed. But relative to other things, a lot of

4 other things would be precluded.

5 MR. ETTINGER: Now, turning to the rule, I am

6 looking at -- actually, I am looking at your --

7 the draft agency rule that is part of Exhibit B.

8 Just looking now at Section 354.103, it talks

9 about any increase in pollutant loading that

10 necessitates the issuance of a new NPDES permit.

11 Do you have a rule somewhere that specifies or

12 sets forth when a new NPDES permit should be

13 issued or when that is necessary?

14 MR. FREVERT: Are you saying what types of

15 activities would trigger a modification and what

16 the types of activity changes are?

17 MR. ETTINGER: Yes. What rule is that?

18 MR. FREVERT: That is the Tom McSwiggin rule.

19 I will let Tom answer that.

20 MR. McSWIGGIN: Generally, a new NPDES

21 permit, that term is probably -- if you are

22 looking at the NPDES relations versus practical

23 use, you are probably going to find yourself in a

24 little bit of difficulty trying to understand what

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1 that means. Perhaps if you got an existing permit

2 you are going to increase your load, the proper

3 term should have been modify permit because you

4 need to increase, in other words, change the

5 envelope described by the permit to accommodate

6 the increase in the load.

7 MR. ETTINGER: Actually, my question was more

8 simple minded. Just looking at this rule, it

9 talks about any increase in pollutant loading that

10 necessitates the issuance of a new NPDES permit

11 modification or existing NPDES permit or involves

12 an activity such as agency certification. Is

13 there any rule written down that sets forth when

14 it is necessary to have a modification in a new

15 permit?

16 MR. McSWIGGIN: No. There is no rule that

17 says when you must modify or issue a new permit.

18 MR. ETTINGER: Do you have an understanding

19 as to when that is necessary?

20 MR. McSWIGGIN: General practice is to modify

21 unless there is something that is really

22 significant changes in permit that cause us to go

23 back and start over.

24 MR. ETTINGER: Just reading now 302.105(b)

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1 under outstanding resource waters, and then

2 (b)(2)(a) speaks of any activity listed in

3 subsection (b)(1) for proposed increase in

4 pollutant loading must also meet the following

5 requirements (a), all existing uses of the water

6 will be fully protected. That applies across the

7 board for ORWs that all existing uses will be

8 protected in existing ONRWs?

9 MR. FREVERT: Yes.

10 MR. ETTINGER: Looking now at subsection (d)

11 of this rule where it talks about activities not

12 subject to an antidegradation demonstration, is it

13 intended that activities will be subject to an

14 antidegradation demonstration if existing uses

15 will be effected?

16 MR. FREVERT: I am not sure I understand the

17 question, if existing uses will be effected.

18 MR. ETTINGER: Let me give -- this is perhaps

19 a better example. One of the activities not

20 subject to an antidegradation demonstration are

21 short-term temporary, i.e., weeks or months,

22 lowering of water quality. Assuming I was

23 proposing a short-term lowering of water quality

24 that was, for instance, running a large amount

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1 of cyanide through the system, but it would be

2 washed through quickly after killing everything

3 there, I presume that that would still -- that

4 that would not fall within this exception for

5 antidegradation.

6 MR. FREVERT: Well, the main reason it

7 wouldn't fall within the exception is we wouldn't

8 let you do it.

9 MR. ETTINGER: I appreciate that. But my

10 point is if I were to do something which would

11 have an effect on an existing use, that would not

12 fall within this set of exceptions for activities

13 not subject to an antidegradation demonstration?

14 MR. FREVERT: You still have to meet water

15 quality standards, which is generally viewed as

16 protective of those uses. It is a short-term and

17 temporary thing within those bounds, you can't go

18 to the point that you actually preclude those uses

19 by violating the water quality standards. But

20 that is the intent of the language here. And this

21 language is taken directly word for word from

22 federal guidance. And I believe there is some

23 discussion at some other documents about some

24 examples of that.

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1 That is the general inclination. You

2 can have some short-term, temporary incremental

3 loading as long as you don't violate water quality

4 standards without a review if that is short-term

5 and temporary and it goes away after time.

6 MR. ETTINGER: And does not affect existing

7 uses?

8 MR. FREVERT: Right. And I believe inherent

9 to the water quality standards for the most part

10 is what I believe we are going to use, it is a

11 demonstration that it hasn't affected existing

12 water uses. Unless there is some information or

13 reason to believe otherwise. And then I think the

14 debate would take on a different tone and

15 discussion of that degradation, it would take on a

16 tone of pollution compliance and orientation.

17 MR. ETTINGER: I have a few questions, sort

18 of practical questions regarding the proposed rule

19 on petitions for outstanding resource waters.

20 Under Section 106.992, there is a list of persons

21 that are to be given notice of the petition. The

22 first line here says "any person may submit a

23 written protection for the adoption, amendment or

24 repeal of an ORW." Is it anticipated that the

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1 same people would get the notice of a repeal

2 petition as who receive a notice of a petition to

3 designate an ORW?

4 MR. FREVERT: One more time, what was the

5 question?

6 MR. ETTINGER: Would the same list of people

7 get a copy of the petition for repeal as get a

8 petition to designate an ORW?

9 MR. FREVERT: I don't know that I can give

10 you a direct answer. I will have to consult with

11 Connie on that. Connie, do you have an answer to

12 that?

13 MS. TONSOR: Yes.

14 MR. ETTINGER: And it is possible to repeal

15 an ORW, obviously, under this rule; is that

16 correct?

17 MS. TONSOR: True.

18 MR. ETTINGER: And now you also talk about

19 the notice has to be given to current NPDES permit

20 holders. I assume that is list of those that

21 someone who wanted to petition to designate an ORW

22 could obtain from IEPA; is that true?

23 MR. FREVERT: I believe that's correct, yes.

24 MR. ETTINGER: Would there be a way to get a

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1 list of NPDES permit applicants from the IEPA?

2 MR. FREVERT: People that don't have a permit

3 but have an active application, I would think you

4 can get that information from the public section,

5 yes.

6 MR. ETTINGER: How would I go about doing

7 that?

8 MR. FREVERT: I would call Tom McSwiggin.

9 They have a database and they would be happy to

10 honor those requests.

11 HEARING OFFICER TIPSORD: Could I ask a quick

12 follow-up? Is it the Agency's policy to require

13 those as a FOIA, Freedom of Information Act,

14 request, or do you just do it generally?

15 MR. FREVERT: We certainly would recognize

16 FOIAs, but we try to accommodate those things

17 without those burdens.

18 HEARING OFFICER TIPSORD: Thank you.

19 MR. ETTINGER: The last phrase of the list of

20 people to be notified says "and to other persons

21 as required by law." Do you know who those other

22 persons who we might be required to give notice to

23 are?

24 MR. FREVERT: I believe -- and Connie can

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1 correct me if I am wrong. But I believe the way

2 we drafted this is we took existing language from

3 the Board's procedural rules as a starting point

4 and said your existing procedures for this type of

5 activity seems to be at the right level of rigger.

6 I don't believe we are the original draftsmen of

7 that language. It means whatever the Board

8 intended it to mean.

9 MR. ETTINGER: Turning now to (c) on the -- I

10 am sorry, (e), it refers to current verifiable

11 information. What is intended by current

12 verifiable information here?

13 HEARING OFFICER TIPSORD: Excuse me,

14 Mr. Ettinger, could you be more specific? Are you

15 talking about 106.994(e) or are you back in 302?

16 MR. ETTINGER: I am sorry, 106.994(e), that's

17 correct.

18 HEARING OFFICER TIPSORD: Thank you.

19 MR. FREVERT: I think the intent there was

20 that you ought to -- the petition ought to include

21 some level of assurance to the Board that the

22 information you are submitting is, indeed,

23 representative of existing conditions.

24 MR. ETTINGER: Are you intending that it be

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1 verified in some particular way?

2 MR. FREVERT: Some way it can be dealt with,

3 either factually documented or corroborated by

4 other parties. It is merely a matter of something

5 the Board can rely on as accurate enough to move

6 forward.

7 MR. ETTINGER: It then talks about verifiable

8 impact to the regional economy. Do you have any

9 idea how a citizen group would determine or

10 develop verifiable information as to the impacts

11 on the regional committee of an ORW designation?

12 MR. FREVERT: Again, I think that would vary

13 in the specific application. But in other parts

14 of the country that I am familiar with, where they

15 have attempted to do this, it is almost

16 exclusively on publicly-owned property. It is

17 pretty easy to verify that there would be no

18 commercial or industrial activity in jeopardy

19 there that you would need to quantify, to what

20 extent, are we taking away somebody's ability to

21 make a living or are we reducing property values,

22 things of that nature.

23 So the level of effort to do that is

24 going to vary depending on the water body you are

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1 talking about and the water shed and the land use

2 within it. I would think that would be a

3 relatively simple thing to document. If you are

4 talking about a water body whose entire drainage

5 basin is in some form of public ownership and so

6 two or three public bodies, I think you need to

7 determine that. If it is three blocks west of

8 here in an urban area with all sorts of property

9 owners and all sorts of potential commercial

10 activities, obviously, that is a lot different.

11 We felt it was necessary in circumstances like

12 that if you are proposing a classification that

13 has fairly strict ramifications that you go to a

14 little more effort to show who might come up on

15 the short end of that classification and to what

16 extent that is or is not the case.

17 MR. ETTINGER: Then it talks about in (f)

18 under proposed 106.994 "state in describing the

19 existing and anticipated uses of specific surface

20 -- specific surface water or segment thereof of

21 which the ORW designation is requested." How

22 would one in a citizen group determine the

23 anticipated uses of the water?

24 MR. FREVERT: Well, I think typically some of

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1 it is going to be things like agricultural

2 drainage, potential navigational issues,

3 obviously, aquatic resource and water supply and

4 the other protective use classifications, extent

5 to which that area is designated and managed and

6 protected as a preservation area or a natural

7 area, something like that. Those are the types of

8 land use issues and water use issues we

9 anticipated that you sort of need to bring in as a

10 starting point to open the dialogue.

11 It is kind of like characterizing

12 there. I think the national flow from that, if --

13 you know, if one of the primary uses of that water

14 body is going to be agricultural drainage, then

15 one would have to probably give a little more

16 information on the nature of that drainage and to

17 what extent it either does or does not allow for

18 the outstanding uses that we are trying to

19 acknowledge and do they really exist and to what

20 extent are they being impacted or impaired by some

21 of these activities.

22 MR. ETTINGER: I got a few more questions to

23 sort of follow up on earlier questions posed

24 today. One related to Region 5 objections to

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1 permits that Ms. Hodge asked about. Are you aware

2 of any agreements or understandings with Region 5

3 as to how many permits they will review in a year

4 or under what circumstances they will review an

5 IEPA issued permit?

6 MR. FREVERT: Yes, I am, but Tom is probably

7 more aware of that. I will let him answer the

8 question.

9 MR. McSWIGGIN: Because of resource

10 limitations on the part of the USEPA, they

11 identify each federal fiscal year out of a list we

12 provide them of the permits that are possibly to

13 be considered in the next year, a list of about 16

14 municipal, 16 industrial permits for this year.

15 This list has varied from year to year as

16 resources have changed.

17 They are free to add to that list at

18 any time if some interest is brought to their

19 attention. Perhaps one of the latest examples is

20 Black Beauty Coal was added to the list because of

21 letters they received from the public. So there

22 is nothing really solid on granite, stone, so to

23 speak. At the beginning of the year, it is a

24 little bit more flexible than that.

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1 MR. ETTINGER: It is in the ballpark of three

2 dozen a year?

3 MR. McSWIGGIN: Yes.

4 MR. ETTINGER: There was also a question that

5 fascinated me relating to discharges now that are

6 not listed in the permit and what would happen if

7 there was an increase in the discharge of some

8 parameter that wasn't currently limited in the

9 permit. I guess my question is what if the

10 current discharge is illegal, how would that

11 affect the antidegradation analysis?

12 MR. FREVERT: I suppose it would depend on

13 the basis for the illegality. Antidegradation,

14 the whole concept is sort of a prior approval,

15 review and authorization. To the extent that

16 something that is already been done illegally

17 would be subject to an after-the-fact

18 antidegradation review, I am not sure what would

19 be accomplished by that. I would think more

20 likely it would be some kind of an enforcement or

21 compliance-oriented activity that would address

22 that issue. And to the extent it shouldn't have

23 happened to begin with, it would be ordered to

24 correct it or cease that without that function.

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1 And if that compliance resolution allowed that

2 load to stay in place, then I believe the

3 considerations that were intended under the

4 antidegradation would have been addressed in that

5 compliance resolution.

6 MR. ETTINGER: So if they are illegally

7 discharging for years, they won't have to do an

8 antidegradation analysis, but they will go to

9 prison?

10 MR. FREVERT: I don't know why I would want

11 to spend a lot of time deciding whether to

12 authorize something that already happened. I

13 guess I would rather spend my time deciding what

14 to do about it and whether they should go to

15 prison.

16 MR. ETTINGER: There were some questions too

17 on what the criteria would be of a review by the

18 Pollution Control Board of a decision that an

19 applicant had failed to -- it failed to make a

20 showing or failed to submit the documents

21 necessary under a -- for antidegradation

22 proceeding -- or I am sorry, antidegradation

23 analysis that I believe Mr. Harrington asked. And

24 I guess my question is whether the Board in

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1 reviewing that would use the criteria that are set

2 forth by the proposed rule in 302.105(c) as to

3 whether this demonstration had been made.

4 MR. FREVERT: You are asking me to speculate

5 on what the Board may or may not rely on?

6 MR. ETTINGER: No, I am asking you what this

7 rule means so that I guess there was -- the

8 question was that -- there was a question as to

9 whether under the proposed rule the Board would

10 have criteria to look at to determine whether or

11 not the permit should have been denied or not.

12 And my question is is whether under the proposed

13 rule these lists of things that the applicant

14 should be -- should demonstrate would not set

15 forth this criteria.

16 MR. FREVERT: I would certainly think so.

17 That is our intent, to layout the standard in the

18 substance of that standard. I think the debate

19 got at is how much specificity, if any specificity

20 beyond that.

21 MR. ETTINGER: So if hypothetically an

22 applicant just refused to supply the information

23 required by 302.105(c)(2)(b)(i) here, then the

24 Board would be able to determine whether or not

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1 they had, in fact, made that demonstration or not?

2 MR. FREVERT: I think that is correct. But I

3 guess I would like to change that a little and get

4 back to what I think is an earlier theme that I

5 believe the real fundamental burden here is that

6 the Agency make a determination to the extent it

7 has been complied with. And we have indicated a

8 capability and even a desire to make that

9 determination. And we have proper information,

10 whether or not that information was contained in a

11 specific demonstration from the applicant or we

12 got it elsewhere.

13 So I would hope if there are any of our

14 determinations that are contested, it is contested

15 on the merits of our determination, not whether or

16 not the information we relied upon came in a

17 stand-alone demonstration document or it was

18 information we gathered from other sources.

19 MR. ETTINGER: But to get back to the

20 hypothetical that was posed, let's say the Agency

21 decided that the demonstration as to one of these

22 things was not made and then the applicant appeals

23 to the Board, it would then be for the Board to

24 determine based on the list of things that are set

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1 forth here whether, in fact, the demonstration had

2 been made or not?

3 MR. FREVERT: In that example, if the

4 applicant claimed that they had provided -- that

5 there is adequate information for us to determine

6 that the standard had been complied with and we

7 have failed to make that determination, yes, I

8 think they could appeal that.

9 MR. ETTINGER: One last question. Are you

10 aware of circumstances or do you believe there are

11 circumstances wherein a change in the flow regime

12 of a stream could affect existing uses or degrade

13 water quality?

14 MR. FREVERT: Such as building a reservoir?

15 MR. ETTINGER: Such as building a reservoir.

16 MR. FREVERT: Sure, yes.

17 MR. ETTINGER: Or pumping large amounts of

18 ground water and putting it into a flow stream?

19 MR. FREVERT: Yes, I think those types of

20 activities have some potential degrading effect,

21 and I think that is one of the significant things

22 we look at in the course of our routine 401

23 certification analysis.

24 MR. ETTINGER: Thank you.

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1 HEARING OFFICER TIPSORD: Are there any other

2 questions? Mr. Harrington?

3 MR. HARRINGTON: Some follow up in questions

4 that were just asked.

5 HEARING OFFICER TIPSORD: Just a second.

6 Mr. Ettinger, did you have something?

7 MR. ETTINGER: I thought we were done with

8 Toby. I wanted to talk to you about where we go

9 from here, but it seems that Mr. Harrington has

10 more questions.

11 HEARING OFFICER TIPSORD: Let's go off the

12 record.

13 (Discussion had off the

14 record.)

15 (Short recess taken.)

16 (Whereupon Lenore Beyer-Clow,

17 Mr. Jerry Paulson, Mr. Jack

18 Darin, Mr. Edward Michael,

19 Ms. Cynthia Skrukrud and

20 Mr. Jeffrey Swano were sworn

21 into the record.)

22 MR. ETTINGER: Please state your name for the

23 record.

24 MR. Swano: My name is Jeffrey S. Swano.

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1 MR. ETTINGER: And you know this is the

2 prefiled testimony of Jeffrey S. Swano that you

3 prepared for this proceeding?

4 MR. Swano: Yes, it is.

5 MR. ETTINGER: Any questions?

6 HEARING OFFICER TIPSORD: Okay. At this time

7 would you like to move that to be admitted an

8 exhibit?

9 MR. ETTINGER: I hereby move his prefiled

10 testimony be admitted.

11 HEARING OFFICER TIPSORD: Any objection?

12 Seeing none, we will move Jeffrey Swano's

13 testimony as Exhibit No. 2. And he is ready for

14 any questions.

15 (Whereupon Exhibit No. 2 was

16 marked into the record.)

17 HEARING OFFICER TIPSORD: Are there any

18 questions for Mr. Swano? He is executive director

19 of Salt Creek Water Shed network. Any questions?

20 Seeing none, thank you very much.

21 MR. ETTINGER: I think Lenore and Jerry want

22 to get in. I have two witnesses here on one

23 testimony. But why don't you state your names?

24 MS. CLOW: I am Lenore Beyer-Clow, the

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1 executive defender of the McHenry County Defender.

2 MR. PAULSON: Jerry Paulson, the chairman of

3 the McHenry County Water Resources Committee and

4 the president of the Kishwaukee River Ecosystem

5 Partnership.

6 MR. ETTINGER: And did you prepare this

7 prefiled testimony as Lenore Beyer-Clow and Jerry

8 Paulson behalf of the McHenry County Defenders?

9 MS. CLOW: Yes.

10 MR. ETTINGER: I hereby move the prefiled

11 testimony of Lenore Beyer-Clow and Jerry Paulson

12 on behalf of McHenry County Defenders into

13 evidence.

14 HEARING OFFICER TIPSORD: Is there any

15 objection? Seeing none, we will mark that as

16 Exhibit No. 3.

17 (Whereupon Exhibit No. 3 was

18 marked into the record.)

19 MR. ETTINGER: Do you have further

20 clarifications you want to make into the record?

21 MS. CLOW: We just have one clarification.

22 In addition to the high quality resource waters we

23 have in the area, we have a number of high quality

24 wetlands that have also been identified and we

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1 would like our comments to generally apply to

2 those wetlands as well.

3 HEARING OFFICER TIPSORD: Thank you. Are

4 there any questions?

5 MS. LIU: Good afternoon. When I read

6 through your testimony, I noticed a reference to a

7 biological stream characterization evaluation

8 system. I am not familiar with what that is.

9 Could you explain what that is?

10 MR. PAULSON: That is a system that the

11 state, both the DNR and the Illinois EPA, uses to

12 characterize streams that have high biological

13 significance. And we can provide you with the

14 documentation for that, if you would like to see

15 it.

16 MS. LIU: Could you, please? Do you know

17 what an A, B or C rating means when they classify

18 those?

19 MR. PAULSON: Yes. The numbers -- actually

20 another person who is testifying could probably

21 give you more specifics on the numbers. But they

22 go through this rating system and they come up

23 with a numerical class. The class A streams are

24 the -- as it applies, the highest quality. I

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1 can't tell you where the breakoff is of the

2 numbers. Class B are still biologically

3 significant, but of less quality. Class C are

4 pretty degraded. I can't say if they would be

5 classified as impaired waters on the 303(d) list,

6 but some of them are. And D and E are the worst

7 qualities. Most streams in McHenry County are

8 class A and B.

9 MS. LIU: You also make some reference to

10 storm water management plans not being uniformly

11 implemented throughout the county. Do you see a

12 place in this rulemaking to include something

13 along the lines of storm water management?

14 MR. PAULSON: Well, the reference to that is

15 because storm water is shown to be one of the

16 primary factors for degrading streams in urban

17 areas, McHenry County has been in the process, as

18 are other counties in the Chicago area, of

19 developing countywide storm water management plans

20 and ordinances. Our plan has been adopted. The

21 ordinance is still being debated. That would give

22 us a uniform approach to maintaining water

23 quality.

24 And one of the factors that is in that

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1 plan and in the ordinance is protecting water

2 quality and wetland, high quality wetlands. Do

3 you want to say more?

4 MS. CLOW: I think the implication there is

5 the way the antidegradation standards are written,

6 that this is something that is a threat to our

7 high quality water, is the storm water runoff.

8 And to integrate -- the fact that we don't have a

9 recourse through a widely adopted ordinance is

10 impaired some way in how that is designed.

11 MS. LIU: Would the storm water be

12 necessarily restricted to things that come out of

13 a storm sewer or could they be just general

14 runoff?

15 MS. CLOW: Runoff.

16 MR. PAULSON: It is an issue we think should

17 be addressed in here and the permitting process.

18 Because, as we know, expanded sewage treatment

19 plants lead to more runoff. And it is an issue

20 that we were in development which leads to more

21 runoff. And it is an issue we raised continuously

22 in our permit reviews and have not really been

23 satisfactorily addressed. If there is a way to

24 tie it in better with this proceeding, we would

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1 support that.

2 MR. ETTINGER: You said more sewage treatment

3 plants lead to more runoff. I think you meant to

4 say more development leads to more runoff.

5 MR. MELAS: I didn't hear the question, hear

6 the question nor the response.

7 MR. PAULSON: I meant to say when you expand

8 sewage treatment plants, it leads to more

9 development and that leads to more runoff, which

10 can degrade water quality in urban areas.

11 MR. MELAS: Thank you.

12 HEARING OFFICER TIPSORD: Any additional

13 questions?

14 MS. BUCKO: My name is Christine Bucko. I am

15 an assistant attorney general. And just as a

16 follow up to the questioning that Alysa had, on

17 the storm water management, are you folks

18 comfortable with the section where there is a

19 blanket exemption?

20 MR. PAULSON: No.

21 MS. BUCKO: Would you have any proposed

22 alternative proposals?

23 MR. PAULSON: I think we will probably be

24 making some proposals in the final comments, but I

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1 think that there are developments -- as an

2 example, the Del Webb development in Huntley,

3 which flows into the Kishwaukee River, such

4 magnitude or even a series of smaller projects

5 that would have significant impact from storm

6 water that they should not be categorically

7 exempted from antidegradation review. And I think

8 in terms of the specifics, we would have to think

9 about that and how to make the additional

10 requirements. But it is a significant threat to

11 our water quality.

12 HEARING OFFICER TIPSORD: Anything further?

13 MR. GIRARD: I have a question. On page 3 of

14 your testimony in the last paragraph, you discuss

15 in the rules in the petition for outstanding

16 resource waters designation and the extensive

17 economic information required in the present

18 proposal, and then you go on to recommend that the

19 section should be removed or simplified. Do you

20 have any specific recommendations for simplifying?

21 MS. CLOW: I think the way -- from our

22 perspective as a citizen group who might want to

23 bring up a water resource as an out -- to be

24 designated outstanding resource water, the way

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1 that the regulations are written makes it very

2 difficult for us to pursue them, would to a

3 certain extent and from discussions earlier today

4 where the burden of proof falls is turning out to

5 be on a public participant to show how much

6 economic value there is or something like that.

7 Do we have specifics regarding how to revise that?

8 I would just bear in mind the fact the direction

9 that a citizen group is coming from does not

10 necessarily have all the proof available to put

11 together a significant designation -- burden or

12 proof that would show that versus what we would be

13 operating against, which potentially could be an

14 organization with reams of economic statistical

15 analysis. That is what we are objecting to.

16 MR. FLEMAL: I can understand your dilemma,

17 but you wouldn't want us making that decision in

18 the absence of that information, would you?

19 MS. CLOW: No.

20 MR. FLEMAL: So there has to be some source

21 for that information.

22 MS. CLOW: Yes. I think there has to be some

23 sort of value to judge against. It is just that

24 the way it is coined makes it significantly

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1 difficult for us to do it.

2 MS. LIU: Would it be burdensome if you are

3 to, say, provide a form letter to people that

4 might be affected asking further input to provide

5 economic impacts and things along those natures so

6 that you can include that in your petition? You

7 wouldn't have to go out and get the data yourself,

8 but they would offer the data to you.

9 MS. CLOW: That is an alternative.

10 MS. McFAWN: To follow up on Mr. Girard's

11 question, when I read this, I thought you were

12 suggesting that the businesses produce the

13 economic impact information, is that right or

14 wrong?

15 MS. CLOW: Yes.

16 MS. McFAWN: That is right, you think they

17 should provide the economic information?

18 MS. CLOW: Yes.

19 MS. McFAWN: Then it would be weighted in

20 your favor?

21 MR. PAULSON: Arguably.

22 MS. McFAWN: Okay. Would that be your

23 solution or do you have a suggestion or solution?

24 Is that one of those suggestions?

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1 MR. PAULSON: I think we need to think about

2 that more.

3 MS. McFAWN: Okay. That would be fine and we

4 welcome your input, follow-up input, I should say.

5 HEARING OFFICER TIPSORD: Anything further?

6 Okay. Thank you very much.

7 MR. ETTINGER: Please state your full name

8 for the record?

9 MR. MICHAEL: My name is Edward Michael. I

10 am associated with the Illinois Council of Trout

11 Unlimited.

12 MR. ETTINGER: Did you prepare the testimony

13 of Edward L. Michael on behalf of the Illinois

14 Council of Trout Unlimited concerning the proposed

15 amendments to 35 Administrative Code Section 106,

16 302 and 303?

17 MR. MICHAEL: I did.

18 MR. ETTINGER: I move the admission of this

19 prefiled testimony into the record.

20 HEARING OFFICER TIPSORD: Any objection?

21 Seeing none, we will mark this as Exhibit No. 4.

22 (Whereupon Exhibit No. 4 was

23 marked into the record.)

24 HEARING OFFICER TIPSORD: Are there any

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1 questions of Mr. Michael? Okay. Seeing none,

2 thank you very much.

3 MR. ETTINGER: Please state your name for the

4 record.

5 MS. SKRUKRUD: Cindy Skrukrud,

6 S-k-r-u-k-r-u-d. I am president of Friends of the

7 Fox River.

8 MR. ETTINGER: Did you prepare the prefiled

9 testimony of Cynthia L. Skrukrud?

10 MS. SKRUKRUD: Yes, I did.

11 MR. ETTINGER: I hereby move the admission of

12 the prefiled testimony of Cynthia L. Skrukrud into

13 the record.

14 HEARING OFFICER TIPSORD: Any objection?

15 Seeing none, we will mark that as Exhibit No. 5.

16 (Whereupon Exhibit No. 5 was

17 marked into the record.)

18 MR. ETTINGER: Do you have anything you want

19 to add to your testimony?

20 MS. SKRUKRUD: No.

21 HEARING OFFICER TIPSORD: Are there any

22 questions? I have some. Specifically, you cite

23 to several sources in your testimony, including on

24 page 2 the Illinois Department of Natural

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1 Resources Office of Realty and Environmental

2 Planning; Fox River, an Inventory of the Region's

3 Resources, I was wondering if it would be possible

4 for you to provide us with copies of these

5 resource documents.

6 MS. SKRUKRUD: Yes, I can.

7 HEARING OFFICER TIPSORD: There are two of

8 them listed on page 2, and I believe then one on

9 page 3 to 4. I think those are the only ones.

10 MS. SKRUKRUD: Yes. Now, there is three

11 documents at the bottom of page 2, the second

12 paragraph on page 2.

13 HEARING OFFICER TIPSORD: Yes, thank you.

14 MS. SKRUKRUD: Do you want those too?

15 HEARING OFFICER TIPSORD: Yes, any of the

16 reference documents that you referred to as

17 authority we would appreciate having copies of.

18 MS. SKRUKRUD: Okay. I can do that.

19 HEARING OFFICER TIPSORD: Are there any other

20 questions? Thank you very much.

21 MS. SKRUKRUD: Thank you.

22 MR. ETTINGER: Please state your full name

23 for the record.

24 MR. DARIN: My name is Jack Darin, D-a-r-i-n.

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1 I am the director of the Sierra Club, the Illinois

2 chapter.

3 MR. ETTINGER: And did you prepare the

4 prefiled testimony of Jack Darin, director Sierra

5 Club, Illinois chapter?

6 MR. DARIN: I did.

7 MR. ETTINGER: I hereby move the prefiled

8 testimony be admitted into the record.

9 HEARING OFFICER TIPSORD: Is there any

10 objection? Seeing none, we will enter that as

11 Exhibit No. 6.

12 (Whereupon Exhibit No. 6 was

13 marked into the record.)

14 HEARING OFFICER TIPSORD: Are there any

15 questions? Actually, I just have one slight one.

16 I believe it is a typo on page 2 of your

17 testimony, proposed 303.25(b), it is sub (b)

18 towards the bottom of the page.

19 MR. DARIN: Yes.

20 HEARING OFFICER TIPSORD: That should be

21 205(b); is that correct?

22 MR. DARIN: Without having that in front of

23 me, I have to check. You are probably right.

24 HEARING OFFICER TIPSORD: I just know some of

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1 the federal stuff is only two digits after the

2 decimal, so I wanted to be sure. It is on page 2.

3 MR. ETTINGER: Yes, I found the typo. I am

4 trying to find the reference.

5 HEARING OFFICER TIPSORD: It is the zero load

6 flow streams in 303.

7 MR. ETTINGER: Yes. Yes, there is a 0

8 missing.

9 HEARING OFFICER TIPSORD: It should be

10 303.205(b)?

11 MR. DARIN: Yes, you are correct.

12 HEARING OFFICER TIPSORD: Thank you.

13 Anything further?

14 MS. LIU: Mr. Darin, I have a question. In

15 your prefiled testimony you mentioned that

16 requiring that a huge list of people be given

17 copies of the petition would be very wasteful.

18 Would it be acceptable to you to be able to put

19 the petition in full in a public place, at a

20 public library for viewing and then simply send

21 out the notification to those parties effected?

22 MR. DARIN: I think that would be more

23 reasonable, yes.

24 MS. LIU: You also mentioned that the

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1 economic evidence would be burdensome as well. I

2 had asked the group earlier if they would consider

3 it burdensome to simply notify the effective

4 parties what they are considering doing and

5 designating an ORW and asking them to provide or

6 file any economic information for you to include

7 in your petition. How do you feel about that?

8 MR. DARIN: I think that could be a good

9 approach. Hopefully, we can rely on property

10 owners and other people with a financial interest

11 in the water shed to bring forth evidence of how

12 they feel they might be impacted by a designation.

13 And then we would expect that if there were bias

14 as we brought up earlier in this kind of

15 information, that the proponents and other

16 participants would have an opportunity to respond

17 and perhaps present their own evidence in response

18 to that.

19 MR. FLEMAL: At the bottom of page 2 in the

20 last complete paragraph, the last sentence there

21 poses a question, why should the notice for

22 establishing special protections for waters be

23 stronger than that for seeking variance of site

24 specific standards, NPDES permits, or 401

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1 certifications? Do you have an answer for your

2 own question there?

3 MR. DARIN: As to why the notice -- I think

4 we -- I was trying basically there to -- since

5 this is going to be a Board proceeding, we are

6 looking at what the standard is in other similar

7 types of cases that come before this body are, and

8 we are wondering why there would be such a

9 disparity between the burden of proof in the

10 different types of proceedings.

11 MR. FLEMAL: This morning Mr. Frevert

12 characterized his perspective on the ORW

13 applications as having them be a really quite

14 significant change in the character, and I assume

15 from how he stated it his feelings were that this,

16 in fact, was something different from inspection,

17 he would be putting perhaps a greater

18 demonstration of that. Do you accept that

19 characterization at all?

20 MR. DARIN: Not a wholesale. I think that

21 certainly there are some of these types of

22 proceedings that come before this body that are

23 very simple and the ORWs may not be. So in some

24 cases, yes, it could be more significant, but

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1 probably not in every one.

2 HEARING OFFICER TIPSORD: Mr. Harrington?

3 MR. HARRINGTON: Excuse me, were you here

4 when Mr. Frevert testified as to how he believed

5 these applications, nondegradation permits would

6 be processed?

7 MR. DARIN: I was here for the majority of

8 Mr. Frevert's testimony and I was here, I believe,

9 for when you are pursuing that line of

10 questioning, yes.

11 MR. HARRINGTON: And is it your understanding

12 that the Agency will be in the position to rely on

13 its own data and determine that there is no

14 significant degradation and approval permit

15 without requiring the applicant to address, for

16 example, alternatives?

17 MR. ETTINGER: So is your question whether

18 they will be able to do that in every case or in

19 some cases?

20 MR. HARRINGTON: In some cases, given that

21 authority allows them that authority to make that

22 decision.

23 MR. DARIN: To rely on their own data to

24 decide whether or not the alternative threshold

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1 has been met?

2 MR. HARRINGTON: No. Whether they have to

3 reach the alternatives threshold or the community

4 impact threshold?

5 MR. DARIN: I am not sure I understand the

6 question. I am having trouble imagining a

7 scenario like that.

8 MR. HARRINGTON: Well, one of the examples I

9 think that was given this morning is somebody

10 comes in and is going to add a loading of ammonia

11 to the river, but it actually may improve the

12 water quality. In this case we can decide that

13 was enough data, we don't need any further data.

14 We will get to alternative control technologies or

15 community impact.

16 MR. DARIN: The question is do you think that

17 that would be the appropriate decision in that

18 case?

19 MR. HARRINGTON: Yes. That is part of the

20 question.

21 MR. DARIN: I don't think I can answer that

22 question without knowing more of the details of

23 the specific case. I think if -- it depends what

24 other data would be available out there. I think

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1 that if there were recognized and accepted data

2 about the receiving waterway that for some reason

3 were not being considered in the scenario you

4 described, I would not find that acceptable.

5 MR. HARRINGTON: Assume they have all the

6 water quality data, they know the discharge will

7 not reduce the water quality because they have

8 been placed with inadequate data, they decide that

9 that is the end of the review, they don't need to

10 go further.

11 MR. DARIN: If they -- if they don't need to

12 go further in seeking additional data?

13 MR. HARRINGTON: Seeking additional data or

14 seeking data on other elements of the

15 demonstration such as alternative control

16 technologies and community impact.

17 MR. DARIN: I can guess it would depend on --

18 you mentioned they had all the available data.

19 MR. HARRINGTON: On water quality.

20 MR. DARIN: I guess I would have to say it

21 would depend on how much data all the available

22 data was.

23 MR. HARRINGTON: Thank you very much.

24 HEARING OFFICER TIPSORD: Anything further?

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1 MS. McFAWN: I have one question. Back to

2 page 2 of your testimony, in paragraph A, you

3 state that Section 302.105(d)(6) should be deleted

4 and you give one example. Could you give some

5 more examples of this?

6 MR. DARIN: General permit activities?

7 MS. McFAWN: Uh-huh.

8 MR. DARIN: Well, I think, you know, for

9 instance that there was some discussion earlier

10 about storm water activities, some storm water

11 permitting activities have been covered under

12 general permits in the past. There are also

13 different general permits under the federal act

14 regarding hydrologic changes to rivers and

15 streams, wetlands, fills that may still require

16 certification by the Agency. Those kinds of

17 things clearly have an impact on the quality of

18 the streams. We would like to see them

19 potentially considered under these procedures.

20 MS. McFAWN: So these activities would come

21 up in a different context before the Agency would

22 be aware that they could then visit the issue?

23 MR. DARIN: Right. For instance, through the

24 certification process under Section 401, the Clean

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1 Water Act.

2 MS. McFAWN: And that covers storm water?

3 MR. DARIN: No, I don't believe that does

4 cover storm water. I think Section 401 covers the

5 process for state certification of Army Corps

6 permits.

7 MS. McFAWN: In these examples -- well, the

8 one about construction activity, and maybe some

9 others that you can give us, how would the Agency

10 be aware that this activity is going to take place

11 so it knows to even visit this issue if is allowed

12 under its current NPDES permit?

13 MR. DARIN: Well, I think if it is allowed

14 under its current NPDES permit, if it is something

15 that is wholly covered by the permit, then I would

16 anticipate that it would have been subject to

17 review at the time that that permit was granted,

18 at least after these procedures are in place.

19 MS. McFAWN: And that is true about the

20 example you gave us?

21 MR. DARIN: Well, the example is a

22 hypothetical. It may or may not be covered by an

23 NPDES permit for construction activities in the

24 area of a nature preserve. It could be -- there

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1 are a lot of different general permits that might

2 be applicable to that. For instance, a filling of

3 a wetland under a certain amount of acreage, that

4 qualifies for exemption from general Section 404

5 of the Clean Water Act process, but it may still

6 be subject to a certification process. That would

7 be outside of the NPDES program but still under

8 the auspices of the Clean Water Act.

9 MS. McFAWN: You have to bear with me on

10 this. I am a little confused. 6 has to do with

11 NPDES permit and activity currently under it.

12 That is the one you propose be changed. So when

13 you start talking about these other activities or

14 other permits and certifications, I get confused.

15 Could you give me some examples in addition to --

16 now you said maybe the construction is not part of

17 the NPDES permit. Could you maybe today or at

18 some other time give us some examples of -- to

19 support further your proposal that this section be

20 deleted?

21 MR. DARIN: Yes, I would be happy to do that

22 in the future. I would like to go through and

23 review this. But I think the general concern here

24 is activities that are covered by a general permit

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1 that may not be covered by the NPDES permitting

2 process. So I would like to go back and review

3 that section and can see if I can provide specific

4 examples.

5 MS. McFAWN: That would be very helpful.

6 Thank you.

7 HEARING OFFICER TIPSORD: Is there anything

8 further?

9 MS. TONSOR: I have a question just to

10 clarify a misunderstanding, and with your

11 permission, I would like to direct it to Tom.

12 Because I think there is a misunderstanding as to

13 what general permits cover. And Tom can explain

14 to us what general permits cover.

15 MR. McSWIGGIN: General permits that the

16 Agency issues are all under Section 402 of the

17 Clean Water Act. There is another category of

18 permits out here under Section 404 that the Corps

19 issues called nationwides, and they are a

20 different piece altogether.

21 A general permit -- and the Agency has

22 general permit authority authorized by the

23 legislature which is issued prior to receiving an

24 application. When we have recognized that there

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1 is a group of similar activities out there that we

2 can write one permit to cover a group, we go ahead

3 and do that. Storm water runoff is -- during

4 construction is a very prime example. Storm water

5 runoff from industrial properties is another one.

6 We are contemplating one for livestock waste once

7 the USEPA finalizes the guidance on it. So what

8 we have is a process where we issue a permit up

9 front. It goes through a public notice process.

10 It goes through a USEPA review. And within the

11 terms of that permit, it establishes a process by

12 which the applicants that wish to come under that

13 permit submit what is a notice of intent.

14 That process then is the main operative

15 during the life of the permit for putting people

16 under it. The Agency has the option at any time

17 to reject a notice of intent and to make that

18 particular applicant, if there is reasons to do

19 so, to apply for a site specific permit. Just

20 because we have issued a general permit doesn't

21 mean that everybody should be put under it, even

22 though they may find themselves under this

23 particular definition.

24 If there is another reason for a set of

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1 circumstances with an agency to go site specific,

2 we have that right.

3 MR. ETTINGER: We are kind of out of order

4 here, but could I ask him a question now?

5 HEARING OFFICER TIPSORD: Sure.

6 MR. ETTINGER: So then you do get a notice or

7 you should get a notice from everyone who is

8 operating under a general permit?

9 MR. McSWIGGIN: That's correct.

10 MR. ETTINGER: So you would know of one

11 operating under a general permit, and you could

12 decide at that point whether further analysis like

13 antidegradation analysis would be appropriate in

14 that case. Only, I guess, in your rubric you

15 would say that you were not allowing them to

16 operate under the general permit; is that right?

17 MR. McSWIGGIN: That's right. Make it site

18 specific.

19 MS. McFAWN: So under the language where he

20 proposes at 6 where it says discharges permitted,

21 that permission only comes after the notice of

22 intent?

23 MR. McSWIGGIN: That is correct.

24 MS. McFAWN: Thank you very much for that

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1 clarification. I hope that will help you as well.

2 MR. DARIN: It does. Thank you, Tom.

3 HEARING OFFICER TIPSORD: Anything further?

4 Thank you very much, Mr. Darin.

5 MS. TONSOR: Mr. Frevert wanted to make an

6 additional comment. It relates to this issue.

7 HEARING OFFICER TIPSORD: Okay. Just one

8 second. Mr. Ettinger, that was the end of the

9 prefiled, right? Mr. Moore is going to testify in

10 Springfield?

11 MR. ETTINGER: Right. We may prefile some

12 more in light of what we have seen here.

13 HEARING OFFICER TIPSORD: Thank you.

14 Mr. Frevert, go ahead.

15 MR. FREVERT: I want to go and comment and

16 supplement what Tom said, and that is these

17 general permits also include with them some

18 operating limitations, and they are referred to as

19 storm water BMPs. And we believe in virtually all

20 of these circumstances that is the type of

21 alternative analysis, the type of antidegradation

22 restrictions that is consistent with the intent of

23 the standard. And as such, we sort of do a

24 generic antidegradation review in the context of

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1 drafting that general permit. And if there is a

2 particular situation where the square peg doesn't

3 fit the round hole, as Tom said, we have the

4 option to refuse allow them to operate under the

5 general permit and make them get a site specific

6 permit.

7 HEARING OFFICER TIPSORD: Mr. Ettinger?

8 MR. ETTINGER: Just to follow up on that, we,

9 meaning the citizens, would not know when you had

10 decided to allow them to run under a general

11 permit, would we? I am sorry, that wasn't one of

12 my better questions.

13 MR. FREVERT: As a notification process?

14 MR. ETTINGER: If you got a notification that

15 someone was going to operate under a general

16 permit and they were, I don't know, going to build

17 a dynamite factory next to a nature preserve and

18 decided that that did qualify under the general

19 permit, would the public get any notice of that?

20 MR. McSWIGGIN: There is no notice of intent.

21 The public process, public input has all been up

22 front when the general permit itself was issued.

23 MR. ETTINGER: So we had to make sure that

24 the general permit made clear that it didn't give

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1 you discretion to accept something like my

2 scenario under the general permit?

3 MR. McSWIGGIN: The group definition doesn't

4 say dynamite next to nature preserves.

5 MR. ETTINGER: Thank you.

6 HEARING OFFICER TIPSORD: Mr. Paulson, you

7 had a follow-up question as well?

8 MR. PAULSON: Earlier it was said that you

9 intend to admit the proposal.

10 MR. FREVERT: Can I interrupt for one minute?

11 Before Tom leaves, maybe it would be helpful if we

12 estimate how many storm water permits we have to

13 do if we didn't have the general approach on an

14 annual basis.

15 MR. McSWIGGIN: There is two basic for storm

16 water. The construction site runoff permit, we

17 have about 750 annualized a year depending on what

18 Mr. Greenspan has done. It is very sensitive to

19 interest rates. Industrial side of the house, we

20 have maybe 100, 175 in there. Because a lot of

21 small businesses don't survive, unfortunately, and

22 we go out in and out quite frequently. So we have

23 a lot of activity there.

24 So we are dealing with NPDES activity

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1 there that is about 800, maybe a little higher in

2 a given year. Whereas the total balance of the

3 other NPDES activity in a year is 400 to 600.

4 MR. FREVERT: So it is a workload issue.

5 MR. McSWIGGIN: Very heavy workload.

6 HEARING OFFICER TIPSORD: Mr. Paulson, go

7 ahead.

8 MR. PAULSON: Earlier you said your intent

9 was to amend your proposal to include the general

10 permits -- the nationwide permits under the 404.

11 And my question -- is that correct, right?

12 MR. FREVERT: That's correct. And I am

13 working on numbers, but it is created in the storm

14 water permits. It is likely to be in the

15 thousands.

16 MR. PAULSON: My question is now when the

17 general permits are promulgated for Illinois, you

18 do do a 401 certification for those. Do you also

19 do an antidegradation review for the nationwide

20 permits as are promulgated?

21 MR. FREVERT: The spin I would put on it, the

22 interpretation I put on it, the conditions and

23 restrictions that we incorporate into our generic

24 certification are designed to accomplish what we

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1 believe the intent of antidegradation is. So,

2 yes, we considered that issue what we can do about

3 it in terms of alternatives in order to minimize

4 pollutant discharge under those general permits

5 without basing it in a generic sense. We don't

6 say meet the water quality standard, we don't care

7 about anything else. We try to incorporate

8 management practices and construction techniques

9 as requirements that we believe will accomplish

10 the intent of that antidegradation.

11 MR. PAULSON: Thank you.

12 MR. MICHAEL: I have a question regarding the

13 site matter. What is the frequency with which the

14 notification process to you under a general permit

15 results in a denial or a modification that they

16 have to procure a site specific permit?

17 MR. FREVERT: I am sorry, I don't have an

18 answer there. Well, keep in mind I don't do these

19 reviews. Tom may be able to give you the numbers.

20 MR. MICHAEL: How about a ballpark?

21 MR. FREVERT: Seldom such is a weird duck

22 asks for a general permit. Obviously, you are not

23 eligible for this. This is beyond our intent.

24 Seldom do we get applications that, I think, we

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1 say, no, you have filed a tradition permit

2 application, go back and submit it. But I know it

3 has happened. I know it has happened. I don't

4 know the numbers. Tom has been through that.

5 MR. MICHAEL: Then this would give you a

6 mechanism of say you had a general permit

7 application in the area of a high -- or

8 outstanding resource water, to do that, would

9 there be any difference? Would you exercise any

10 different judgment about --

11 MR. FREVERT: I can almost guarantee you

12 right now if there is a water body that is

13 designated as outstanding water, we are not going

14 to issue a general permit for anything going on

15 with that water. There is no such classification

16 now. Hopefully there will be a classification.

17 Maybe some day a water body will be placed in a

18 classification. That is clearly a different set

19 of operating parameters than what we designed the

20 general permit for. So they would not get one.

21 It probably wouldn't be in the standard either.

22 HEARING OFFICER TIPSORD: Just as a point of

23 clarification, Mr. McSwiggin will be in

24 Springfield; is that correct?

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1 MS. TONSOR: One of the things, Mr. McSwiggin

2 has a conflict with the December 6th hearing.

3 However, he will be available to provide

4 information so that we can bring that information

5 and will try and see how flexible his scheduling

6 is on December 6th. I believe he is going to be

7 out of state on December 5th and was going to be

8 traveling the 6th.

9 We will provide the information of how

10 often we would deny a general permit or someone

11 seeking a general permit. I don't know the answer

12 to that question either.

13 MR. FREVERT: If we know the specific

14 questions and issues, he can either answer them

15 ahead of time and have the answer. Tom is not the

16 only one that can address the issues.

17 MS. McFAWN: Is there anyone else at the

18 Agency that could come in his place that would

19 have a general knowledge of the permitting system?

20 MS. TONSOR: He undoubtedly has a staff

21 person who has knowledge of the general permit

22 process.

23 MS. McFAWN: Or any of the NPDES permitting,

24 perhaps they can be there is my suggestion.

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1 MS. TONSOR: Oh, sure.

2 MR. FREVERT: Sure.

3 MS. McFAWN: Could we get a copy of that

4 general permit or some of your general permits

5 that you have adopted or issued?

6 MR. FREVERT: I think that is a request

7 rather than a question. Yes, we can get you it.

8 Certainly, we can get those to you.

9 HEARING OFFICER TIPSORD: Okay. Let's go off

10 the record for just a minute.

11 (Discussion had off the

12 record.)

13 HEARING OFFICER TIPSORD: Let's proceed.

14 MS. FRANZETTI: Talking about reasonable

15 alternatives, Toby. When an antidegradation

16 review is, in fact, triggered for a POTW, let's

17 assume --

18 HEARING OFFICER TIPSORD: Excuse me,

19 Ms. Franzetti? Could you please stand?

20 MS. FRANZETTI: Assume an antidegradation

21 review has, in fact, been triggered for a POTW.

22 Could you give us some examples, if you know them,

23 of what sort of alternatives should the POTW

24 consider in the alternative analysis that it would

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1 provide to the Agency?

2 MR. FREVERT: Sure, I would be happy to. The

3 POTW is typically they go through a facility

4 planning stage anyway where they look at

5 alternatives to serving their future needs. They

6 are usually looking at different types of proven

7 treatment technology. Some of them they look in

8 our discharge and technology like when an

9 application is -- it works in some situations, it

10 doesn't work in all situations. There are

11 different forms of biological treatment.

12 In many cases they actually have

13 alternative locations they can look at for

14 discharge. So obviously they need to treat sewage

15 and discharge treated waste water somewhere.

16 There may be a receiving body that is more

17 appropriate to receive that water than another

18 one. That happens more often than you would

19 imagine, actually.

20 Not everybody right on a big river can

21 do it, but other people have that option. Then

22 there are other things like tweaking or beefing up

23 design criteria. You have slightly oversizing and

24 things of that nature.

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1 Typically, unless there is an extremely

2 pressing environmental need or some obvious

3 ramification, we stop short of wholesale add-on

4 additional technology. We believe that is

5 generally more properly addressed in terms of

6 technology treatment standards in the course of

7 state and federal policies set in effluent

8 standards or arenas.

9 But in terms of better treatment

10 systems, maybe beefed up designs, maybe additional

11 controls on discharge, not only discharge

12 location, but discharge timing, how you can

13 accomplish these things would be even less impact

14 than perhaps what is environmentally acceptable

15 impact anyway, how do we minimize that to a

16 reasonable cost. That is the sort of thing we

17 look at.

18 MS. FRANZETTI: Does a POTW have to in order

19 to have fulfilled its obligation look at

20 reasonable alternatives? Does it have to go

21 upstream and look at what all its industrial

22 users can do or, no, that isn't necessarily

23 required?

24 MR. FREVERT: A lot of the larger POTWs have

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1 pretreatment programs, and we usually address the

2 industrial user issues with those programs. To

3 the extent that somebody may have had a blatantly

4 inadequate pretreatment plan, we may ask them to

5 spruce that up.

6 But routinely we do a whole separate

7 review in consideration of pretreatment ordinance,

8 pretreatment requirements. And that is considered

9 -- for the most part, that is pretty much accepted

10 as the best way to manage those sources, and we

11 don't review it again the second time in the

12 context of antidegradation.

13 MS. FRANZETTI: Thank you. That is all I

14 have.

15 HEARING OFFICER TIPSORD: Mr. Harrington,

16 would you like to proceed now?

17 MR. HARRINGTON: Couple of questions, cooling

18 water discharges do not contain any additives or

19 not -- or are exempt from the antidegradation

20 review; is that correct?

21 MR. FREVERT: We are proposing that cooling

22 water, once the cooling water discharges without

23 any additives, not be required to do a stand-alone

24 demonstration or not require the Agency to make a

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1 separate determination. They are subject to the

2 standard, and we are saying that that type of

3 operation sort of categorically meets the subject.

4 They are subject to the standard; they are not

5 subject to a review.

6 MR. HARRINGTON: If they do contain cooling

7 water additives, which many do, when they go --

8 are they then required to go through an

9 antidegradation review if there is an increase in

10 the cooling water discharge?

11 MR. FREVERT: What we do in those cases is a

12 review of the additives. It is toxicological

13 properties and the process on how the facility

14 selected that additive versus another additive.

15 And there have actually been instances where after

16 entering the dialogue with the discharge, when

17 they had multiple slime control or scale control

18 additives, they can go through based on

19 toxicologic or toxicity data, which I interpret as

20 a type of antidegradation in giving that example,

21 I have selected other alternatives that have been

22 economically and functionally viable for them.

23 MR. HARRINGTON: That is the standard review

24 you have been employing in the Agency for several

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1 years with cooling water additives; is that right?

2 MR. FREVERT: That's right.

3 MR. HARRINGTON: So would they be subject to

4 the requirements of these rules for high quality

5 waters if there is an increase in cooling water

6 discharge and there is an additive that you have

7 already permitted? Or would they be subject to

8 the categorical exemption, not exemption, but the

9 categorical review that is already contained here?

10 MR. FREVERT: I think the practical answer to

11 your question is if we review and decide that is

12 the proper and acceptable additive to that cooling

13 water and they propose to rampup the amount of

14 cooling water they discharge, it has made some

15 incremental addition of that additive, then that

16 is the antidegradation review we would do. We

17 have made the decision already that is an

18 acceptable substance with those concentrations and

19 that waste water and increment more on a true need

20 for additional cooling water.

21 Yes, they are subject to review, but I

22 just told you what the review is. We were not

23 going to send you out on a witch hunt for all

24 sorts of new data.

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1 MR. HARRINGTON: And the thermal component of

2 the discharge, would that have to go through

3 additional review?

4 MR. FREVERT: It is possible, but that review

5 is posed on meeting the thermal standards.

6 MR. HARRINGTON: Obviously, the presumption

7 here is it is going to meet water quality

8 standards. The question is would it have to go

9 through the antidegradation portion of the review.

10 MR. FREVERT: I would anticipate no

11 supplemental review for the thermal component of

12 that.

13 MR. HARRINGTON: Thank you very much.

14 HEARING OFFICER TIPSORD: Any further

15 questions?

16 MS. HODGE: I have just a few, and one is

17 related to this same section that Mr. Harrington

18 had just asked about, proposed Section

19 302.105(d)(5), which is the activity that would be

20 -- that the Agency has already conducted an

21 antidegradation review, noncontact. Please

22 explain what is meant by the term without

23 additives? What about in a situation where a

24 cooling water was initially chlorinated but then

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1 subsequently treated by dechlorination prior to

2 being discharged, would the Agency consider that

3 cooling water to be without additives?

4 MR. FREVERT: The bottom line is that again

5 dechlorination has to do with the alternatives

6 analysis and that would be acceptable to you. We

7 probably document that it is an additional load

8 planned for this facility. They are chlorinating

9 for whatever purposes. The alternatives show even

10 in the sense of the Clean Water Act shows they are

11 dechlorinating, there may be some incidental

12 increase in chloride or some other component.

13 But I don't anticipate that we would carry our

14 antidegradation review of any significant

15 additional consideration of those components.

16 You would get your permitted increase

17 and we document our logic and our thought on the

18 fact sheet, end of story.

19 MS. HODGE: With respect to the proposed

20 Section 302.105(d)(6), which would be the

21 discharges covered by current general NPDES

22 permit, does the word current refer to the

23 discharge already being in possession of the

24 general permit? Or is it meant to refer to the

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1 Agency's general permit being present?

2 MR. FREVERT: That means a permit that is

3 valid at that time. I think these general permits

4 even expire and have to be renewed. And also the

5 term of application of those general permits may

6 expire. If you had a general permit and let it

7 expire, you are not covered by a permit.

8 MS. HODGE: But this would be -- the Agency's

9 general permit is current or the applicability to

10 the discharge?

11 MR. FREVERT: Well, it would have to be both.

12 It doesn't apply to the discharge that has

13 expired.

14 MS. HODGE: Suppose an industrial facility

15 has an individual NPDES permit as opposed to the

16 general with an outfall from storm water runoff

17 from one or more industrial areas at the facility.

18 What sort of physical modifications to the

19 facility would trigger the need for the permittee

20 to apply for an antideg review? For example,

21 would installing a new 500 diesel oil tank on the

22 land trigger an antidegradation review?

23 MR. FREVERT: What I would view the intent of

24 antidegradation to do in that instance is to make

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1 sure the diesel storage tank was designed and

2 constructed and operated in the same way as any

3 other fuel storage tank within that -- covered

4 under that permit would. The same management

5 practices, the same rational protection would be

6 in play.

7 So I guess you could say the instant

8 that general permit applies to that piece of

9 property, those pollution control alternatives

10 apply to that piece of property and that is the

11 answer.

12 MS. HODGE: It is not a general permit, this

13 is a facility specific.

14 MR. FREVERT: Even those facility specific

15 permits have some kind of management requirements

16 in them for storm water. I am saying that company

17 X is doing, you know, A, B and C. Here is your

18 process discharge requirements. Here is your

19 storm water management requirements. And as you

20 add new facilities or expanded facilities in the

21 same general type that adhere to these management

22 requirements for that storm water, that is the

23 intent of antidegradation there in my mind.

24 We are managing that storm water in

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1 such a way with management alternatives that

2 minimizes the amount of additional contaminants

3 that need to go into the stream.

4 MS. HODGE: So would the activity to install

5 this new 500 diesel tank, would that trigger an

6 antidegradation review, would that trigger first a

7 permit application and then an antidegradation

8 review by the Agency?

9 MR. FREVERT: I don't even know that you need

10 a construction permit. That is a fuel storage

11 facility. You wouldn't need a construction

12 permit. You may need a permit from the local fire

13 district. You don't need authorization from us.

14 If that piece of property is contained in a

15 service area for the storm water permit that is

16 existing, as long as you adhere to those storm

17 water management practices, you don't need

18 anything from us.

19 MS. HODGE: Would your answer be the same for

20 a construction of new sidewalk or expanding

21 employee parking lot?

22 MR. FREVERT: Well, if I ever get the staff

23 to review parking lots and sidewalks, I would be

24 in hog heaven. Yes, we don't intend to do a use

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1 on those things.

2 MS. HODGE: That is all I have. Thank you

3 very much.

4 HEARING OFFICER TIPSORD: Yes.

5 MR. MOORE: Robert Moore, executive director

6 of the Prairie Rivers Network. What is the

7 current procedure for nominating outstanding

8 natural resource waters in Illinois?

9 MR. FREVERT: That classification doesn't

10 even exist in Illinois programs, so there is -- I

11 suppose the procedure would be you propose to the

12 Board, you create a classification with a

13 particular water body in it.

14 MR. MOORE: So that is one of the -- that is

15 one of the shortcomings of Illinois current

16 antidegradation policy that this proposal is

17 intended to address, is the creation of a

18 recognition of the outstanding resource water?

19 MR. FREVERT: An outstanding resource water

20 is not a unique difficult issue in the state of

21 Illinois. It is difficult in a lot of places.

22 There are states that have an outstanding resource

23 classification with absolutely no waters in that

24 classification because it is the same difficulties

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1 that we are talking about. Nevertheless, they

2 have created the category, even though there is

3 nothing in the category to get through the federal

4 review and approval process.

5 MR. MOORE: For the designation of

6 outstanding resource water, is there anything in

7 the federal guidance or in the federal regulations

8 that describes the economic analysis which is

9 described in the proposal?

10 MR. FREVERT: I don't believe so. But I do

11 believe there has been significant pressure and

12 campaigning to the USEPA for a number of years to

13 try to develop some criteria or some yardsticks to

14 deal with that issue and they haven't gotten it

15 done yet.

16 MR. MOORE: That is all the questions --

17 MR. FREVERT: Some things even they see as

18 difficult enough, they pass off to the states.

19 MR. MOORE: That is all the questions I have.

20 HEARING OFFICER TIPSORD: Anything from

21 anyone else in the audience? Mr. Paulson?

22 MR. PAULSON: Jerry Paulson. Toby, do you

23 think there are in your opinion any streams in

24 Illinois that would qualify as outstanding

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1 resource waters?

2 MR. FREVERT: I think this is a significant

3 enough issue that I would really like to separate

4 creation of the category from nomination of water

5 segments to go in it. Therefore, I wouldn't share

6 my opinion with you even if I had one.

7 We need to get down to ground rules for

8 what constitutes an outstanding resource water,

9 everybody understands the ramifications of it and

10 come up with what we think is a workable process

11 to entertain nominations. And I think that is a

12 big enough chore that I don't want to pick on the

13 risk of getting spun off into identifying whether

14 water body A or B should not be in that category

15 yet.

16 MR. FLEMAL: A follow up on that, you start

17 off by saying you know of no -- the question first

18 was regarding stream segments. Then you switch

19 the term to water body. You are allowing that the

20 ORW designation to apply to something other than

21 streams, does not apply to waters of the state

22 generally?

23 MR. FREVERT: Yes. And I think perhaps some

24 of the top candidates will not be streams, they

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1 will be other types of water bodies. I was

2 probably using those two terms interchangeably,

3 even though I know they are different.

4 For instance, I also think there was

5 some criticism that we suggested the Board not

6 consider even as nominations or candidates for

7 that classification streams of 7 Q 10 and less

8 than 0.

9 Lakes, reservoirs and wetlands may not

10 have any flow in them, but they are not streams.

11 And that language was not to exclude them from

12 consideration.

13 HEARING OFFICER TIPSORD: Okay. I just have

14 one quick question. And the Board does have

15 several questions, but I think the discussion we

16 had up here, I think we are going to prefile those

17 for you to give you more of an opportunity to

18 respond more fully to those questions.

19 MR. FREVERT: I haven't been responding fully

20 enough?

21 HEARING OFFICER TIPSORD: We are trying to

22 give you a break. The one minor question I have

23 and I toss out for you to also think about. You

24 have proposed to the Board that Section 303.206 be

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1 reserved to list outstanding resource waters as

2 they are developed. As a general policy, the

3 Illinois Secretary of State prefers that we not

4 reserve sections. So I just wonder if you have

5 any other suggestions. I mean, certainly if it is

6 possible, we could put some language in there that

7 says this section shall be used to list all

8 outstanding resource waters and they are or shall

9 be used to list. I think we did something like

10 that with the regulated recharge actually.

11 So just as a thought on what you might

12 prefer.

13 MR. FREVERT: I don't think it is a big deal

14 for me. I think the important thing is when and

15 if you do designate those things, they be housed

16 somewhere in Part 3, which is the use designation

17 subpart (c). Whether you have to reserve a

18 number, you know, it doesn't matter to us. It

19 would be nice to know where they belong, but deal

20 with it as best you can.

21 HEARING OFFICER TIPSORD: Okay. Thank you.

22 Anything else?

23 As I indicated, the Board does have

24 several questions and will prefile those on

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1 November 28th and we will send those to the

2 service list and they will be on the Board's web

3 page. If we get them done sooner, we will try and

4 get them out sooner.

5 At this time I would like to note that

6 the second hearing has been scheduled for 10:00

7 a.m. December 6, 2000, in Springfield, Illinois,

8 at the Board's offices. That address is actually

9 Room 403, 600 South Second Street.

10 We will begin with, I believe, the

11 prefiled testimony that we have already received,

12 which is Mr. Robert Moore's, and then we will go

13 to probably Agency follow-up, depending upon how

14 it works out when we see the other prefiled

15 testimony. We can set that schedule more firmly

16 on the day of the hearing.

17 Testimony should be prefiled by

18 November 28th, 2000. That is in the Board's

19 offices. The mailbox rule will not apply to

20 filing with the Board. We will allow you to serve

21 it by mail on that date to the members of the

22 service list.

23 Please contact my secretary Natalie

24 Williams at 217-245-9062 in Jacksonville to get

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1 the most current and up-to-date service list. It

2 is still a list that is changing fairly rapidly

3 for us.

4 The Board's transcript from this

5 hearing will be on the Board's web page, which is

6 located at www.ipcb.state.il.us.

7 And are there any other questions at

8 this time?

9 MS. TONSOR: I have a question. If

10 necessary, I will make it as a motion. Due to the

11 shortness of the time and the holiday, is it

12 permissible that we do our filing electronically?

13 If it needs to be in the Board's offices here in

14 Chicago on the 28th, that means we are going to

15 have to effectively get it in the mail before.

16 HEARING OFFICER TIPSORD: Actually, if you

17 call me that day, I will authorize fax filings.

18 We don't yet have anything actually in place to do

19 E-mail in those kinds of filings. So if you do

20 run up against a problem with getting them into

21 the Board's office, please give me a call and I

22 will be happy to authorize you a fax file to be

23 followed up by a hard copy.

24 I thank you all very much. I think we

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1 got a lot accomplished today, and I look forward

2 to seeing you in December. Thank you.

3 (Whereupon the proceedings in

4 the above-entitled case were

5 adjourned until December 6,

6 2000, at 10:00 a.m.)

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209

1 STATE OF ILLINOIS )

) SS:

2 COUNTY OF LAKE )

3 I, Cheryl L. Sandecki, a Notary Public

4 within and for the County of Lake and State of

5 Illinois, and a Certified Shorthand Reporter of

6 the State of Illinois, do hereby certify that I

7 reported in shorthand the proceedings had at the

8 taking of said hearing and that the foregoing is a

9 true, complete, and correct transcript of my

10 shorthand notes so taken as aforesaid, and

11 contains all the proceedings given at said

12 hearing.

14 ____________________________________

Notary Public, Cook County, Illinois

15 C.S.R. License No. 084-03710

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