1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
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5 IN THE MATTER OF:
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7 PERMITTING PROCEDURES FOR THE
8 LAKE MICHIGAN BASIN: 35 ILL. R99-8
9 ADM. CODE 301 and 309.141 (Rulemaking - Water)
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13 Proceedings held on December 8, 1998 at 10:00
14 a.m., at the Illinois Pollution Control Board, 600
15 South Second Street, Room 403, Springfield, Illinois,
16 before the Honorable Marie E. Tipsord, Hearing
17 Officer.
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21 Reported by: Darlene M. Niemeyer, CSR, RPR
CSR License No.: 084-003677
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24 KEEFE REPORTING COMPANY
11 North 44th Street
25 Belleville, IL 62226
(618) 277-0190 1
KEEFE REPORTING COMPANY
Belleville, Illinois
1 A P P E A R A N C E S
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3 Claire A. Manning, Chairman
G. Tanner Girard, Ph.D., Board Member
4 Nicholas J. Melas, Board Member
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STATE OF ILLINOIS, OFFICE OF THE ATTORNEY
6 GENERAL
BY: William D. Seith
7 Chief, Environmental Bureau
100 W. Randolph Street
8 Chicago, Illinois 60601
On behalf of the People of the State of
9 Illinois.
10 ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
BY: Richard C. Warrington, Jr.
11 Associate Counsel
Division of Legal Counsel
12 1021 North Grand Avenue East
Springfield, Illinois 62794-9276
13 On behalf of the Illinois EPA.
14 ILLINOIS ENVIRONMENTAL REGULATORY GROUP
BY: Whitney Wagner Rosen
15 Attorney at Law
215 East Adams Street
16 Springfield, Illinois 62701
On behalf of IERG.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 I N D E X
2 WITNESS PAGE NUMBER
3 TOBY FREVERT 14
4 THOMAS G. McSWIGGEN 17
5 WILLIAM D. SEITH 27
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 P R O C E E D I N G S
2 (December 8, 1998; 10:00 a.m.)
3 HEARING OFFICER TIPSORD: Good morning. My name
4 is Marie Tipsord, and I have been appointed by the
5 Board to serve as Hearing Officer in this proceeding
6 entitled, In the Matter of: Permitting Procedures for
7 the Lake Michigan Basin: Amendments to 35 Ill. Adm.
8 Code 301 and 309.141. The Docket Number is R99-8.
9 To my right is Dr. Tanner Girard, presiding Board
10 Member assigned to this matter. Also present, to his
11 right, is Board Chairman, Claire Manning.
12 CHAIRMAN MANNING: Good morning.
13 HEARING OFFICER TIPSORD: Two over to my left,
14 Board Member Nicholas J. Melas who is also assigned to
15 this rulemaking.
16 BOARD MEMBER MELAS: Good morning.
17 HEARING OFFICER TIPSORD: In addition to my
18 immediate left is a member of the Board's technical
19 staff, Anand Rao.
20 To Mr. Melas' left is his assistant, Joel
21 Sternstein.
22 Also with us today is Cindy Ervin, Chairman
23 Manning's Assistant, and Kathleen Crowley, our Senior
24 Attorney.
25 The purpose of today's hearing is twofold. First,
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 this rulemaking is subject to Public Act 90-489.
2 Public Act 90-489 became effective January 1, 1998,
3 and requires the Board to request that the Department
4 of Commerce and Community Affairs, DCCA, conduct an
5 Economic Impact Study on certain proposed rules prior
6 to the adoption of those rules.
7 If DCCA chooses to conduct the IcIS, DCCA has 30
8 to 45 days after such request to produce a study of
9 the economic impact of the proposed rules. The Board
10 must then make the IcIS, or DCCA's explanation for not
11 conducting the study, available to the public at least
12 20 days before a public hearing on the economic impact
13 of the proposed rules.
14 In accordance with Public Act 90-489, the Board
15 requested, by letter dated August 5, 1998, that DCCA
16 conduct an Economic Impact Study for the
17 above-reference rulemaking. The request letter
18 referenced a letter dated June 26, 1998, from DCCA.
19 In that letter, DCCA notified the Board that it would
20 not be conducting Economic Impact Studies on rules
21 pending before the Board during the remainder of FY
22 '99, because it lacked, among other things, the
23 financial resources to conduct such studies.
24 In the request letter the Board asked that DCCA
25 notify the Board within 10 days of receipt of the
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 request if DCCA intended to conduct an Economic Impact
2 Study on the proposed rules. The Board stated that if
3 it had not been notified within 10 days, the Board
4 would rely on DCCA's June 26 letter as the required
5 explanation for not conducting an Economic Impact
6 Study.
7 The 10 days for DCCA to notify the Board expired
8 and the Board did not receive any notification from
9 DCCA that it would conduct an Economic Impact Study on
10 this rulemaking. Accordingly, the Board relies on the
11 June 26th, 1998 letter as DCCA's explanation for not
12 producing this study.
13 We will hear testimony from anyone who wishes to
14 comment on DCCA's explanation at this hearing today.
15 Secondly, at today's hearing we will hear the
16 prefiled testimony of Illinois Environmental
17 Protection Agency, and allow questions to be asked of
18 the Agency. Anyone may ask a question. However, I do
19 ask that you raise your hand, wait for me to
20 acknowledge you, and after I have acknowledged you,
21 please state your name and who you represent before
22 you begin your questions.
23 Please speak one at a time. If you are speaking
24 over each other, the court reporter will not be able
25 to get your questions on the record.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 Please note that any questions asked by a Board
2 Member or staff are intended to help build a complete
3 record for the Board's decision and not to express any
4 preconceived notion or bias.
5 As we have received no other prefiled testimony,
6 we will allow anyone else who wishes to testify the
7 opportunity to do so as time allows.
8 Is there anyone here who anticipates that they
9 would like to testify at the close of the hearing
10 today?
11 MR. SEITH: Yes.
12 HEARING OFFICER TIPSORD: Okay, Mr. Seith. I will
13 ask that question again throughout the day in case new
14 people come in. But we will start with you as time
15 allows, Mr. Seith.
16 To my left there are sign up sheets for the notice
17 and service lists. There are also current copies of
18 both the service and notice lists. I ask anyone who
19 intends to file final comments to be sure and pick
20 those up. There have been changes in those lists very
21 recently, and so you do need to pick up a new copy.
22 There are also copies of the Hearing Officer's
23 order. And in addition, as those of you who have been
24 here before know, the rest rooms are locked, and there
25 are keys to the rest rooms on the table to the left.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 In addition, we have a Coke machine back in the office
2 if at a break anyone would like to get a Coke or
3 something, it is available.
4 At this time I would like to ask Dr. Girard if he
5 wishes to say anything.
6 BOARD MEMBER GIRARD: I would just like to welcome
7 everyone to the hearing this morning, and thank you
8 for coming. We look forward to your comments and
9 questions. And the Board is committed to completing
10 this rulemaking in an efficient manner, and we need as
11 much in the record as we can to make the best
12 decision. So thank you for your input.
13 HEARING OFFICER TIPSORD: Chairman Manning, would
14 you like to add anything?
15 CHAIRMAN MANNING: Nothing to add. Thank you.
16 HEARING OFFICER TIPSORD: Member Melas?
17 BOARD MEMBER MELAS: Nothing to add. Thank you.
18 HEARING OFFICER TIPSORD: All right, then. Let's
19 proceed. Let me first ask, is there anyone here who
20 wishes to comment on DCCA's decision regarding the
21 performance of an IcIS?
22 Seeing none, we will then proceed with the
23 Agency. And could I ask you to introduce your
24 witnesses, and then we will have them all sworn.
25 MR. WARRINGTON: Thank you. Would you like me to
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 reprise my opening statement from the previous
2 hearing?
3 HEARING OFFICER TIPSORD: If you would like to,
4 sure.
5 MR. WARRINGTON: Thank you. On behalf of our
6 Director, Mary A. Gatey, I would like to express our
7 appreciation to the Illinois Pollution Control Board
8 for scheduling this hearing to receive testimony on
9 this rulemaking proposal. We are here to continue the
10 dialogue between the Office of the Attorney General,
11 the Joint Committee on Administrative Rules, and our
12 Agency on the best set of rules to implement the Great
13 Lakes Initiative for Illinois.
14 Our rulemaking proposal today has three parts.
15 First is an amendment to update the addition of 40 CFR
16 136 to the 1996 edition, thus making it consistent
17 with the edition incorporated by reference in other
18 rules. This part of the Code of Federal Regulations
19 includes the test methods required to be used by
20 dischargers to measure the concentration of
21 contaminants. The United States Environmental
22 Protection Agency periodically updates the test
23 methods to incorporate the latest scientific advances,
24 and we are here today to ask the Board to do
25 likewise.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 The second part of the our rulemaking proposal
2 consists of definitions previously adopted, 35
3 Illinois Administrative Code 352.104, that give
4 meaning to the rules proposed at 35 Illinois
5 Administrative Code 309.141(h). In two instances,
6 301.411, total maximum daily load, and 301.421, waste
7 load allocation, the definitions apply to terms
8 already used by the Board in 309.141(d)(3) and
9 309.142.
10 The third part of our rulemaking proposals
11 contains selected sections from 35 Illinois
12 Administrative Code 352. Our role here is to ensure
13 that the Board has every opportunity for discussion
14 and review of the best rules possible to implement its
15 water quality standards for Lake Michigan.
16 Today we are pleased to announce that we have
17 brought Mr. Toby Frevert and Mr. Tom McSwiggin to
18 answer questions on this proposal.
19 We remain willing to work with the Board, the
20 Office of the Attorney General, and other interested
21 parties to resolve concerns and to improve the quality
22 of Lake Michigan.
23 That concludes my opening statement. If you would
24 like to swear the witnesses or myself in for any
25 questions, we would be perfectly willing to do that.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 HEARING OFFICER TIPSORD: All right. Would you
2 please swear in the witnesses.
3 (Whereupon Mr. Warrington, Mr. Frevert, and Mr.
4 McSwiggin were sworn by the Notary Public.)
5 HEARING OFFICER TIPSORD: I think it is probably
6 easiest on the prefiled testimony, if you have no
7 objection, just to go ahead and read the prefiled
8 testimony, given the shortness of it, if that's okay.
9 That way if there are any follow-ups, we will have it
10 all in one place in the record.
11 MR. WARRINGTON: No problem. For the benefit of
12 the court reporter, we can have a copy made available
13 for her to correct my diction, as the case may be.
14 Good morning. My name is Rich Warrington,
15 Associate Counsel with the Division of Legal Counsel
16 of the Regulatory & Permit Appeals Unit for the
17 Division of Water Pollution Control of the Bureau of
18 Water of the Illinois Environmental Protection
19 Agency. My testimony --
20 HEARING OFFICER TIPSORD: Excuse me, Richard. I
21 am sorry. I meant the prefiled testimony that you
22 filed for today's hearing.
23 MR. WARRINGTON: Oh, I am sorry. I was starting
24 with something we already entered into the record in
25 summary form.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 HEARING OFFICER TIPSORD: Right.
2 MR. WARRINGTON: All right. Today we have
3 basically --
4 HEARING OFFICER TIPSORD: You answered a couple of
5 questions on the record, and you filed it as a part of
6 your response.
7 MR. WARRINGTON: Maybe if I could summarize it.
8 HEARING OFFICER TIPSORD: Do you need a copy of
9 it?
10 MR. WARRINGTON: I think we have it here
11 somewhere. Thank you.
12 At the conclusion of the last hearing, the Hearing
13 Officer asked whether certain questions from the
14 audience should be posed to the agencies who were
15 unavailable to attend that previous hearing.
16 And the question from the Hearing Officer was,
17 just to clarify, Ms. Bucko, would you also like the
18 last series of questions about personal involvement
19 with 88-21, cases to be addressed to Mr. Frevert and
20 Mr. McSwiggin. Ms. Bucko answered, yes, and the
21 Hearing Officer ordered that we will put those on the
22 record and they can answer it.
23 Since then we have referred these questions to Mr.
24 Frevert and Mr. McSwiggin. And the questions were,
25 now, were you involved in any of the proposals? Were
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 you personally involved in any of the earlier
2 rulemaking on the toxic substances? And I answered at
3 that hearing, no, I don't believe so.
4 And Ms. Bucko, with a follow-up question, asked me
5 were you involved in any of the actual litigation in
6 Granite City? And I answered I was not. And we
7 basically posed those questions to Mr. Frevert. And
8 Mr. Frevert has indicated that he was directly
9 involved with the preparation, presentation, and
10 defense of R88-21 from the proposal to review of the
11 briefs filed in the litigation in Granite City.
12 And Mr. McSwiggin, having been posed the same
13 questions, responded that he was not directly involved
14 with the R88-21 proposal or litigation.
15 That's the summary of our supplemental testimony.
16 Thank you.
17 HEARING OFFICER TIPSORD: At this time are there
18 any additional questions of the Agency?
19 Okay. I just have one question. I am not sure
20 which of you is the best to answer it, so I will pose
21 it to you as a panel. We have some information on the
22 economic justification in the rulemaking. As you
23 know, the Board is also required to talk about the
24 technical feasibility.
25 My question to all of you, or to whichever of you
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 wishes to answer this, do you believe that the rules,
2 as proposed, are technically feasible?
3 MR. FREVERT: I am not sure I know what that
4 means. This originally started as our development of
5 the procedures that we would use for our
6 administrative operation of the NPDES permit program,
7 and specified how we were intending to operate to
8 carry out our responsibility to make sure that in
9 limiting discharges and authorizing discharges under
10 the NPDES permit program, we would assure that we
11 would have adequate conditions to meet the Board's
12 water quality standard in the stream at whatever point
13 it applied --
14 HEARING OFFICER TIPSORD: Could you speak up.
15 MR. FREVERT: Or at the end of a pipe. And as a
16 result of that, we laid out some procedures, which I
17 would call default procedures, that primarily the
18 reasonably potential concept, which is a federal
19 concept, but it basically says, in my opinion, it
20 acknowledges in establishing permit limits to meet a
21 water quality standard that there is never absolute
22 certainty unless your limit is zero discharge, I
23 guess. But it recognizes there needs to be some
24 reasonableness to supply in permit limits that are
25 adequate to protect the water quality standards, yet
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 don't have such extreme conservatism to them that they
2 become a practical problem for the operator.
3 And the U.S. EPA suggested perhaps the way to
4 approach that is with a statistical procedure that
5 accomplishes the 95th percentile, the certainty of a
6 95 percent limit. We have laid out a procedure to do
7 that, and then in addition to that procedure we have
8 also indicated it is acceptable for us for a
9 discharger to propose another approach, if that other
10 approach is adequate in accomplishing the same 95th
11 percentile confidence that we get the right limit.
12 So these procedures that we have laid out, we
13 believe are generally feasible, and in my mind they
14 constitute a default procedure that we would
15 essentially put the world on notice that we intend to
16 operate by, unless somebody can propose or
17 substantiate some other procedure.
18 And in that light, I believe we have that
19 flexibility or allowance that it should be technically
20 feasible virtually across the board. But it was not
21 proposed or even adopted in our process through JCAR
22 as an absolute, more or less a generic or default
23 procedure that we couldn't deviate from unless the
24 scientific justification is there.
25 I believe the same is true in the procedure where
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 we identify what we believe is the proper technical
2 conversion between dissolved and total metals, and
3 there is a provision in our procedures that allows an
4 applicant to propose an alternative to those values we
5 have established as our generic defaults if they can
6 substantiate that scientifically other numbers are
7 appropriate. I believe those same allowances are also
8 in the version of this procedure that we have elevated
9 to the Board's consideration.
10 So in that regard, I just want to make sure
11 everybody understands these procedures are not
12 absolute procedures. These are generic things that we
13 can deviate from periodically. And, again, it is an
14 estimate of what we think is necessary and appropriate
15 and equitable to meet the water quality standards,
16 which we believe is absolute. The water quality
17 standard is absolute. The permit limit and the
18 procedure that we use to set the permit limit is kind
19 of a site specific determination of the best thing we
20 can do to meet the absolute water quality standard.
21 And I believe that -- maybe I can bump the ball
22 over to Tom. I believe Tom's permits he also has
23 standard terms and procedures that do identify the
24 absolute nature of the water quality standard. That
25 permit limit notwithstanding. Is that correct?
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 MR. McSWIGGIN: All of our permits contain a
2 provision that the water quality standard must be
3 met. That is kind of a standard language. That is
4 there to be utilized if we are having difficulty with
5 the permitted limit meeting the water quality
6 standard. It is kind of a fallback. It is very
7 seldom used.
8 MR. FREVERT: Does that answer your question
9 adequately?
10 HEARING OFFICER TIPSORD: And just also for the
11 record, we are talking about part of a permit process
12 and setting a permit limit in all of this?
13 MR. FREVERT: That's correct. This entire package
14 of material is to give the public notice and to
15 standardize the generic practice we follow in carrying
16 out our permitting responsibilities. And how we, in
17 doing that permitting, produce permit limits that we
18 believe are appropriate to meet that absolute water
19 quality standard in the Board's regulations.
20 HEARING OFFICER TIPSORD: Are there any other
21 questions?
22 MR. RAO: Can I ask a follow-up question?
23 HEARING OFFICER TIPSORD: Yes.
24 MR. RAO: Mr. Frevert, you mentioned that some of
25 the concepts that you have in this proposal came from
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 the federal U.S. EPA?
2 MR. FREVERT: That's correct.
3 MR. RAO: Those federal requirements, are they
4 part of the GLI guidance document?
5 MR. FREVERT: Yes, I believe. Again, I will ask
6 Tom to follow up. But my understanding is that the
7 GLI guidance document was the first time these
8 permitting procedures that we have been using since
9 the onset of the NPDES program, 20 some years ago,
10 were actually required to be adopted in some kind of
11 official capacity.
12 We have been required to go through this process
13 by federal NPDES regulations and also by 309.141 of
14 the Subtitle C from the onset. This is the first
15 time, in my recollection, that they wanted us to
16 elevate that process beyond merely recognizing federal
17 guidance, federal regulations, and actually adopt them
18 as official state procedures.
19 Do you agree with that, Tom?
20 MR. McSWIGGIN: Yes, that's correct. For the
21 first 20 years of the NPDES program all of the
22 materials put out by the U.S. EPA how to go from the
23 water quality standard to a limit has been in the form
24 of guidance. There has been various forms of that
25 over the years, and a lot of it was actually reflected
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 in the GLI materials, but it has never been elevated
2 to the requirement of a standard until this point.
3 MR. RAO: So would you say the proposal
4 requirements are consistent with what the GLI guidance
5 required for the procedure requirements for
6 implementing the standards?
7 MR. FREVERT: Yes.
8 MR. RAO: Thank you.
9 BOARD MEMBER GIRARD: I have a more specific
10 question along those lines, Mr. Frevert.
11 So, for example, the statistical procedures that
12 you were talking about, those are recommended in the
13 GLI guidance document for carrying out this program?
14 MR. FREVERT: That's correct.
15 HEARING OFFICER TIPSORD: Anything further?
16 BOARD MEMBER GIRARD: No further questions.
17 CHAIRMAN MANNING: Does the Agency consider those
18 procedures -- just so that I have a clear
19 understanding of what the Agency's position is on
20 this, Mr. McSwiggin, I think you referred to that as a
21 standard. Does the Agency consider this to be a
22 standard?
23 MR. FREVERT: I noticed that word, too. It is an
24 operating standard, in terms of that is the
25 administrative process that Tom has to adhere to in
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 running the NPDES program. But it is not a standard
2 in the sense of the water quality standard or a
3 specific enforceable requirement for the water body
4 itself, for the environmental condition. It is a
5 standard for operating the permit program. It is not
6 a standard for a stream or a lake.
7 MR. McSWIGGIN: That is correct, if you are
8 talking about the requirement that that procedure be
9 applied.
10 BOARD MEMBER GIRARD: So are you saying it is more
11 of a procedure than a standard?
12 MR. FREVERT: It is a requirement on how the state
13 is expected and required to operate and administer the
14 NPDES program. And that is administratively separate
15 from the portion of the Clean Water Act of the federal
16 program that requires states to set water quality
17 standards for their water resources.
18 CHAIRMAN MANNING: For purposes of the record, how
19 does the Agency determine working with the discharger,
20 how this particular part of it is -- it sounds like
21 there is a degree of flexibility in terms of it being
22 more of a guidance than -- you agree to what the
23 standards are going to be, and it goes into the permit
24 and if there is a violation of that, then it becomes a
25 permit violation?
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 MR. McSWIGGIN: That's correct. If you end up
2 following this procedure, going from the water quality
3 standard, and as a result of that effluent permit
4 limit, once that limit is put into the permit and that
5 permit is issued, you have then something that that
6 discharger must live by, because he now has a specific
7 permit limit that is enforceable. That's been the
8 foundation of the permit program ever since I have
9 been involved with it.
10 In fact, if you look at the way the U.S. EPA
11 approaches it, they can't enforce it until it is in a
12 permit limit. We have a little bit more flexibility
13 at the state level. I don't know if I am getting to
14 your question or not. Do we -- how do we go about
15 putting that in there? When you sit down to write a
16 permit there is a -- there is several things that you
17 have to examine before you really look at what is that
18 permit limit.
19 First of all, you have to determine whether or not
20 there is a technology base limit in the state or
21 federal regulation that may be more stringent than
22 whatever limit you may develop from working with the
23 water quality standards. If there is, then that is an
24 exceedance of your water quality standard, if you put
25 the more stringent limit in there. If there is no
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 categorical technology based on the limit, then you
2 examine the water quality and look at the protocol
3 that is applicable to go from the water quality
4 standard to the permit limit.
5 What we are looking at in today's case is that
6 protocol, what procedures do we apply in the
7 development of that permit limit. As I indicated
8 earlier, this protocol has always been in the form of
9 guidance up to this point. There have been several
10 documents out over the years that define how the U.S.
11 EPA views this process to go from the water quality
12 standard to go to a permit limit.
13 Up to this point when we get to the decision that
14 we have to write a permit application on the water
15 quality standard, then we follow the U.S. EPA
16 guidance, unless the discharger has brought in, as
17 part of his application materials, some other argument
18 that is, in our opinion, as stringent as we would have
19 gotten using the guidance material and in looking at
20 the GLI, we would be looking at following a
21 standardized procedure.
22 Once that is done, then we then go back to the
23 applicant with the draft permit for his review.
24 Generally that review could result in a discussion of
25 that limit. We don't give really much, say, credence
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 to arguments to come off of that standard at that
2 point, because at that point we generally are looking
3 to see if we had made a mistake in interpreting his
4 application. We can have a lot of discussion. But
5 very seldom do we have to back off the number that we
6 originally imposed, like I say, unless we made a
7 mistake in interpreting the application.
8 MR. FREVERT: If I can add to that. There is the
9 appeal prospect of the permit. If the permittee feels
10 strongly that the procedure we adhered to and the
11 limit that we produced from that procedure results in
12 a product that is incompatible with the standard
13 itself, either inadequate, too conservative, or not
14 conservative enough. That's our job, essentially, is
15 to find a permit limit that will protect that
16 standard, that water quality standard with some degree
17 of conservatism. And that that degree of conservatism
18 is not overly burdensome to the applicant, not over
19 necessarily burdensome to the applicant.
20 MR. RAO: Can I ask a follow-up?
21 HEARING OFFICER TIPSORD: Sure.
22 MR. RAO: How do you deal with those constituents
23 for which there are effluent standards in the Board
24 regulations when writing a permit?
25 MR. FREVERT: In writing a permit there are four
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 or five things, the Pollution Control Board effluent
2 standard, discharge standard, a U.S. EPA promulgated
3 category for industrial effluent limitation, a water
4 quality based permit limit and perhaps there are
5 several others. It is our job to look at all of those
6 requirements, and the most restrictive requirement
7 motivated by those various program elements would be
8 the one that would probably become the permit limit.
9 And there are many times when a parameter is
10 regulated both as a discharge limitation and also
11 there is a water quality standard. In some instances
12 one may govern and in another instance the other may
13 govern. It is our job to determine which one drives
14 the permit limit.
15 MR. RAO: Thank you.
16 HEARING OFFICER TIPSORD: Anything further?
17 KATHLEEN CROWLEY: This is a follow-up to a
18 question that was referred to you from the last
19 hearing.
20 The Attorney General had addressed some issues
21 related to the R88-21 water toxics docket and the
22 resulting court case there. Briefly, the R88-21
23 proceeding involved a narrative standard, essentially
24 no toxics in toxic amounts, and the Board rules went
25 on to include criteria which had previously been
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 developed by the Agency for it use to derive the
2 numbers that would be used in setting permit limits in
3 enforcement cases and that sort of thing.
4 Does anyone in this panel see any real difference
5 between those numbers and the way -- those procedures
6 and the way they would be used in these procedures?
7 MR. FREVERT: Yes. My recollection, in my
8 opinion, that whole proceeding was focused on a number
9 that was derived through a toxicity evaluation
10 procedure that would become the enforceable standard
11 for that segment of water body. That is not a permit
12 limit. That is a standard for a water body. And in
13 this day and age with tens of thousands of chemicals,
14 both the State of Illinois and the federal government
15 recognized that there needs to be a way to regulate
16 toxicity that is a little more administratively
17 expedient than rulemaking for individual chemicals.
18 So that process was put in place, and that process
19 requires strict adherence to a statistical and a
20 toxicity evaluation process that ultimately produces a
21 number or a set of numbers that constitutes the water
22 quality standard for that water body, which is
23 fundamentally different from a permit limit that may
24 subsequently be derived from that standard. And I
25 believe we don't even call it a standard in that
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1 instance. We call it criteria. Fundamentally, it
2 meets the intent of being a standard in the water act
3 requirement for the states that have water quality
4 standards for toxic substances.
5 MR. McSWIGGIN: And once that criteria is
6 developed in the permit development process, it is
7 treated as if it were a water quality standard in the
8 protocol for developing the permit, and then it is
9 applied.
10 MR. FREVERT: Essentially we would derive a
11 standard criteria or value. Those words are used
12 interchangeably in the Lake Michigan Water Quality
13 Standards, and that number would be the starting point
14 for doing the permit analysis. The effluent limit
15 would be the finishing point, and we have consciously
16 made a distinction between the Board's specifying in
17 very great detail the process to produce that water
18 quality standard, and then a second step being the
19 administrative process we go through to determine what
20 that permittee needs to do to make sure he meets that
21 water quality standard.
22 KATHLEEN CROWLEY: Thank you. I wanted to make
23 sure that that was addressed by you.
24 HEARING OFFICER TIPSORD: Anything further?
25 Seeing nothing, then I thank you, Agency, and we
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1 appreciate you coming. And at this time I think we
2 will proceed with Mr. Seith.
3 Mr. Seith, I believe you indicated that you would
4 like to testify. Let's go off the record for a
5 second.
6 (Discussion off the record.)
7 HEARING OFFICER TIPSORD: All right. Let's go
8 back on the record.
9 We will have you sworn in.
10 (Whereupon Mr. William D. Seith was sworn by the
11 Notary Public.)
12 MR. SEITH: Good morning Madam Hearing Officer,
13 Madam Chairman, Members of the Board, and staff.
14 My name is William Seith, and I am here on behalf
15 of the Illinois Attorney General's Office. I believe
16 Mr. Melas indicated last time that this was one of the
17 first hearings that he has ever participated in. On
18 regulatory matters I have to say that in ten years at
19 the Attorney General's Office, this is my first
20 opportunity to testify either for or against a
21 particular rule of procedure, so please bear with me.
22 I don't think there is any secret and, in fact,
23 the Agency has made much of it in the record, and the
24 Illinois Environmental Regulatory Group has also on
25 its motion to dismiss, that there has been a dispute
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1 between the Attorney General's Office and the Illinois
2 EPA with respect to whether or not this proceeding is
3 necessary, whether or not the Board needs to adopt
4 these regulations that are before you in this
5 proceeding.
6 Quite frankly, the Illinois Attorney General's
7 Office thought that that issue had been resolved.
8 After much of discussion at the end of last year and
9 through the early part of this year, we thought that
10 we had reached a resolution and agreed upon what
11 regulations were going to be proposed to you and that
12 you were not going to have to deal with this issue.
13 And upon further reflection, frankly, I think it
14 is an issue that you really do not need to deal with
15 for the simple reason that this Board, irrespective of
16 whether or not the Illinois EPA has the authority to
17 promulgate the regulations, this Board clearly does
18 have the authority to promulgate these regulations.
19 And I think that that authority can be found in
20 Section 13 of the Act, take your pick, quite frankly,
21 Section 13(a)(1), (2) or (3). But more importantly in
22 Section 13(b) the statute reads, not withstanding any
23 other provision of this Act, and for purposes of
24 implementing an NPDES program the Board shall adopt
25 and then it goes on in number one to state,
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1 requirement, standards, and procedures which together,
2 with other regulations adopted pursuant to this
3 Section 13 are necessary or appropriate to enable the
4 State of Illinois to implement and participate in the
5 National Pollution Discharge Elimination System
6 pursuant to and under the Federal Water Pollution
7 Control Act. It is now and herein after amended.
8 Well, we have an amendment, and a very significant
9 amendment, and that's the Great Lakes Initiative that
10 has been referred to here in the Federal Register.
11 And in the opening comments to 40 CFR, Parts 9-122,
12 123, 131 and 132, the Agency notes that under the
13 Clean Water Act the States of Illinois, Indiana,
14 Michigan, Minnesota, New York, Ohio, Pennsylvania and
15 Wisconsin must adopt, must adopt, provisions into
16 their water quality standard and NPDES permit programs
17 within two years, by March 23 of 1997, that are
18 consistent with the guidance, or EPA will promulgate
19 the provisions for them. They must adopt those
20 regulations.
21 You have heard testimony here today that the rules
22 and regulations that are being proposed to you are, in
23 fact, mandated by the GLI program, and as a
24 consequence it seems to me clear under the statute
25 that this Board has the authority to adopt these
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1 regulations. And as a consequence, the Attorney
2 General's Office would support the adoption of those
3 regulations.
4 And there is some precedent for doing these types
5 of regulations. If the Board looks at its own
6 regulations at 35 Illinois Administrative Code,
7 Section 302.601, et seq., Subpart F, of the water
8 pollution control standards, that is that section or
9 series of sections, entitled procedures for
10 determining water quality criteria. And it is a very
11 similar set of regulations that mirror the type of
12 regulations that are being proposed here, and I think
13 it provides some precedent for the Board adopting
14 these types of regulations.
15 The issue of whether or not the Agency has
16 authority to adopt these regulations has been well
17 briefed on IERG's motion to dismiss, and our response
18 to that, and the Agency's response to that. But I,
19 again, feel that it is not an issue that this Board
20 needs to reach in order to adopt these regulations.
21 Because, again, I think the authority is clear within
22 the Environmental Protection Act.
23 And so the Attorney General's Office, for the sake
24 of ensuring the enforceability of the Great Lakes
25 Initiative Water Program and continued enforceability
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1 of the State of Illinois NPDES program, the Illinois
2 Attorney General's Office, on behalf of Jim Ryan,
3 moves the adoption of the regulations. Thank you.
4 HEARING OFFICER TIPSORD: Thank you. Are there
5 any questions of Mr. Seith?
6 MR. FREVERT: I am not sure I heard his last
7 sentence. Can you read it back?
8 (Whereupon the requested portion of the record was
9 read back by the Reporter.)
10 MR. FREVERT: Prior to that.
11 (Whereupon the requested portion of the record was
12 read back by the Reporter.)
13 MR. FREVERT: Is that your opinion, that this is
14 necessary for those federal program activities that
15 are delegated to us to be enforceable?
16 MR. SEITH: It is the opinion of the Attorney
17 General's Office that there is enough of a question
18 about the Agency's ability to adopt these regulations
19 that, quite frankly, we fear that we are going to
20 continue to see this issue come up down the road when
21 the Agency submits referrals to our office or the
22 State's Attorneys Office for the enforcement of those
23 permit requirements. So it seems to me maybe perhaps
24 a belt and suspenders approach, but warrants the
25 Board's adoption of these regulations in order to
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1 ensure that that is never a question.
2 MR. FREVERT: So if I am hearing you right, I
3 think you are saying if we issue a permit with these
4 procedures and that permit is not challenged, and it
5 goes into effect, and over the course of time we
6 identify some noncompliance issues based on those
7 limits, and we refer an enforcement action to you, do
8 you question the validity of that permit that has been
9 issued and has been in place for some time?
10 MR. SEITH: We have faced this issue I think in
11 similar types of enforcement actions where the Agency
12 has adopted, for example, drinking water quality
13 standards. Several cases come to mind, and Amoco
14 being one of them, where through the process of
15 attempting to enforce those regulations under Sections
16 18 and 19 of the Environmental Protection Act, the
17 enforceability of the Agency standards and regulations
18 was challenged as not being a properly adopted
19 regulation enforceable under the Environmental
20 Protection Act.
21 I think that history, in my experience, dictates a
22 bit of caution in this particular case in order to
23 ensure the enforceability of the program, and the
24 limitations that are put into an IEPA permit. It
25 seems to me appropriate to adopt these regulations in
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1 order to take that question away.
2 MR. FREVERT: We would be happy to research that.
3 I don't know that there is a direct analogy between
4 the safe drinking water program and the NPDES
5 program. We would be happy to look into that.
6 CHAIRMAN MANNING: But your point, Mr. Seith, just
7 so that I understand it, is that your concern is that
8 a separate argument could be made, a jurisdictional
9 argument could be made, regardless of the permit
10 appeal having been filed or not filed, jurisdiction is
11 an issue at all times.
12 MR. SEITH: Correct.
13 CHAIRMAN MANNING: And your concern is that some
14 discharger would come and make an argument to you
15 regarding jurisdiction in the context of an
16 enforcement case?
17 MR. SEITH: Correct.
18 CHAIRMAN MANNING: Arguing that these rules should
19 have been promulgated by the Board and not the Agency
20 and, therefore, they are invalid. Is that your
21 point?
22 MR. SEITH: Yes. Thank you. I couldn't have said
23 it better myself.
24 HEARING OFFICER TIPSORD: Any other questions for
25 Mr. Seith?
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1 MR. WARRINGTON: Just one. What would prevent the
2 alleged violator of the Act, or the Board's
3 regulations, for raising this argument that the rules
4 are invalid even if the Board does adopt the proposed
5 regulations?
6 MR. SEITH: I guess I don't understand the
7 question. I suppose for $50.00 anybody can file a
8 lawsuit. But it seems clear to me that the statute,
9 the Illinois Environmental Protection Act, confers
10 upon this administrative agency, the Pollution Control
11 Board, the authority to adopt these regulations.
12 There is, I understand it, a position taken by the
13 Agency that a similar authority exists with the
14 Agency. Again, without rehashing the history of our
15 discussions over that particular issue, there is a
16 difference of opinion on that, and it is a difference
17 of opinion that very well could be used against us in
18 a future action. I don't think there is any dispute
19 about the Board's authority to adopt these
20 regulations. I don't think there can be any dispute.
21 MR. FREVERT: I guess I would like to explore that
22 a little further and find out just how vulnerable we
23 are here in the State of Illinois. There are over
24 2,500 NPDES permit holders in the State of Illinois
25 who we currently regulate and establish permit limits
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1 based on water quality requirements with no formally
2 adopted procedures other than 309.141 by either our
3 Agency or the Board. The GLI approach is
4 approximately 19 of those 2,500.
5 Are we vulnerable for the other 2,480 right now
6 for any water quality based permit limit that is in
7 there right now?
8 MR. SEITH: Well, I don't think the intent of my
9 testimony today or my comments today are to apply
10 generally to the entire NPDES program nor to suggest
11 that the Illinois EPA's program is somehow
12 inadequate. That is not the purpose or the thrust of
13 my comments whatsoever. I think in this particular
14 instance, we have a situation where the U.S. EPA has
15 given us a clear command that these regulations be
16 adopted.
17 Again, I think the Illinois Environmental
18 Protection Act gives this Board clear authority to
19 adopt those regulations. I think it is appropriate
20 for the Board to do so.
21 MR. FREVERT: I hear you. And since those same
22 requirements are in place for the other 2,400 plus,
23 the lack of necessity for some kind of an official
24 adoption process, nevertheless, it is clear in the
25 regulations that we have the obligation to go through
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1 this process although we really don't have to
2 formalize the procedure that we use. Do you feel
3 comfortable that we are safe in not needing an
4 equivalent Board action to carry out that part of the
5 program?
6 MR. SEITH: Well, again, it is not my intention
7 through today's proceeding to issue an Attorney
8 General's opinion with respect to the entire NPDES
9 program. I think that is certainly a discussion we
10 can have at a later point in time. I don't think it
11 is necessary to take the Board's time to continue that
12 discussion today.
13 MR. FREVERT: I just want to make sure that 19
14 dischargers don't jeopardize the whole state-wide
15 program.
16 MR. SEITH: I understand.
17 HEARING OFFICER TIPSORD: Is there anything
18 further?
19 All right. Thank you, Mr. Seith.
20 MR. SEITH: Thank you.
21 HEARING OFFICER TIPSORD: At this time I would
22 like to ask if there is anyone else who would like to
23 testify this morning?
24 Okay. Seeing none, I would like to take a ten
25 minute break so we can confer about final comments
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1 before the Board proceeds either to first notice or
2 dismiss any action, whichever position the Board
3 takes. So let's take ten minutes and we will
4 reconvene and go from there.
5 (Whereupon a short recess was taken.)
6 HEARING OFFICER TIPSORD: We are back on the
7 record.
8 At this time I would ask if anyone else would like
9 to make a statement on the record.
10 MS. ROSEN: Good morning. I am Whitney Rosen with
11 the Illinois Environmental Regulatory Group and,
12 again, Marie, I know you are preparing to announce
13 what time period by which post hearing comments are
14 going to be due. I would just again reiterate my
15 request to the Board that they rule on our motion to
16 dismiss, which was filed I believe prior to the first
17 hearing in this matter.
18 If they could rule on the motion to dismiss at
19 some time prior to going to first notice or, you know,
20 so we can resolve that issue and enable us to more
21 effectively comment on the proceeding if, in fact, you
22 chose to go ahead with the adoption of the proposal.
23 Thank you.
24 HEARING OFFICER TIPSORD: The Board will take that
25 under advisement.
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1 At this time, after consultation with the parties
2 and the Board Members present, we have determined that
3 January 14th will be the date that we will establish
4 for post hearing comments. And they should be served
5 to persons on the service list on that date and should
6 be received -- let's make them received by the Board
7 on that date as well, January 14th.
8 At this time let me ask once again, for the
9 record, is there anyone here who wishes to comment
10 regarding the DCCA position on the Economic Impact
11 Study?
12 Seeing none, is there anyone else who would like
13 to comment today?
14 Also seeing nothing further, at this time, I would
15 like to thank everyone for their participation. And I
16 appreciate all the well thought out comments we
17 received today, and it has been a pleasure. Thank you
18 very much. The hearing is closed.
19
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 STATE OF ILLINOIS )
) SS
2 COUNTY OF MONTGOMERY)
3
4 C E R T I F I C A T E
5
6 I, DARLENE M. NIEMEYER, a Notary Public in and for
7 the County of Montgomery, State of Illinois, DO HEREBY
8 CERTIFY that the foregoing 38 pages comprise a true,
9 complete and correct transcript of the proceedings
10 held on the 8th of December A.D., 1998, at 600 South
11 Second Street, Room 403, Springfield, Illinois, in the
12 matter of: Permitting Procedures for the Lake
13 Michigan Basin: 35 Ill. Adm. Code 301 and 309.141, in
14 proceedings held before the Honorable Marie E.
15 Tipsord, Hearing Officer, and recorded in machine
16 shorthand by me.
17 IN WITNESS WHEREOF I have hereunto set my hand and
18 affixed my Notarial Seal this 14th day of December
19 A.D., 1998.
20
21
Notary Public and
22 Certified Shorthand Reporter and
Registered Professional Reporter
23
CSR License No. 084-003677
24 My Commission Expires: 03-02-99
25
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KEEFE REPORTING COMPANY
Belleville, Illinois