5

Agency, Illinois Department of Natural Resources (IDNR), the Attorney General,

the States Attorney of each county in which the waters or water segment runs, the

Chairman of the County Board of each county in which the waters or water

segment runs, to each member of the General Assembly from the legislative

district in which the waters or water segment runs, to current NPDES permit

holders and NPDES permit applicants, applicants for federally permitted activities

that require a certification from the Agency pursuant to Section 401 of the Clean

Water Act, and to other persons as required by law. Prop. at 106.992.

Further, the Agency’s proposal would require the petitioner to publish notice of the petition in a

newspaper of general circulation in the county or counties through which the effected water body

flows.

The Agency proposal also discussed specific informational requirements for the petition.

In particular, the Agency proposes that the petitioner identify the water or water segment,

describe the specific surface waters, and include a statement describing the area in which the

specific surface water exists. Prop. at 106.994(a)-(c). The Agency also would have the petition

contain a statement supporting the designation, describing the impact on economic or social

development, existing or anticipated uses of the waters, and describing the existing or anticipated

uses warranting the ORW designation. Prop. at 106.994(d)-(g). The Agency proposal would

also require a synopsis of all testimony, copies of material to be incorporated by reference, and a

petition signed by 200 persons, unless the Agency or the Department is the petitioner or unless

waived by the Board. Prop. at 106.994(h)-(k). The Agency proposal also includes the reasons

why the Board would dismiss a petition and under what circumstances a designation would be

made. Prop. at 106.995.

Economic Reasonableness and Technical Feasibility of the Proposal

The Agency’s proposal also addressed the economic reasonableness and technical

feasibility of the proposal. The Agency indicated that this “regulatory requirement” within the

State’s water quality standards is a revision of the existing standard. Prop. at 6. The Agency

maintains that the revision updates and clarifies existing policy and is expected to lessen the

economic burden on the regulated community by listing activities that are already considered in

compliance with the requirements without the need for an individual antidegradation review.

Id

.

The Agency also asserts that the standard establishes criteria, which will provide better guidance

for determining compliance with the antidegradation standard.

Id

.

PUBLIC COMMENTS

At this time the Board has received 47 public comments in this proceeding. The

following is a table of public comments.

 

PUBLIC COMMENT DESCRIPTION

1 President, Illinois Paddling Council and State Representative, American

Canoe Association, MW Division

2 A group of eight citizens, submitted by A.G. Pilgrim

3 Jodie Randell, Naperville, Illinois

---

 

6

4 The Wetlands Initiative submitted by Albert E. Pyott, President

5 DeAnna Belz, Co-Director, LIVING upstream

6 Rhea Edge, President, John Wesley Powell Audubon Chapter of the

National Audubon Society

7 Illinois Public Interest Research Group submitted Diane E. Brown,

Executive Director,

8 Russell A. Dietrich-Rybicki, Urbana, Illinois

9 Patricia C. Riggins, Secretary, Madison County Conservation Alliance

10 Rebecca A. Hefter, Oregon, Illinois

11 Sally Paxton, Urbana, Illinois

12 Lake Michigan Federation submitted by Laurel O’Sullivan, Counsel and

Toxics Coordinator

13 Gretchen Grant

14 Richard H. Acker, Regional Land Use Coordinator, Openlands Project

15 Karen Crum

16 Dominic C. Camona

17 John W. Massman, Woods & Wetlands Group-Sierra Club

18 Brett M. Schmidt, Naperville, Illinois

19 Illinois Coal Association’s Prefiled Testimony submitted by Taylor

Pensoneau, President

20 Cynthia L. Skrukrud, President, Friends of the Fox River

21 Public Comments of The Prairie-Woods Environmental Coalition (PWEC),

Illinois Schools and the Families Against Rural Messes (F.A.R.M)

22 Richard Worthen

23 Linda Zamberletti, Georgetown, Illinois

24 Fran Lowman, Cherry Valley, Illinois

25 Debi Sieg, Carlock, Illinois

26 Stanna S. Breen, Bloomington, Illinois

27 Steve Ward, Bloomington, Illinois

28 Paar Caywood, Bloomington, Illinois

29 Dennis Hartung, Bloomington, Illinois

30 Phillip M. Caywood, Bloomington, Illinois

31 Phyllis Moore, Bloomington, Illinois

32 Marvin E. Nevmister, Bloomington, Illinois

33 Tom Ellis, Bloomington, Illinois

34 Nancy A. Dietrich-Rybicki, Urbana, Illinois

35 Prairie Rivers Network, Champaign, Illinois

36 William Freiwald, Westchester, Illinois

37 Duane R. Kimme, Champaign, Illinois

38 Prefiled Testimony of Brett J. Marshall submitted by Brett J. Marshall

39 Cynthia L. Quinby, Bettendorf, Iowa

40 Illinois Environmental Protection Agency Answers to Prefiled Questions

41 Chemical Industry Council of Illinois submitted by Christie M. Bianco

42 Prairie Rivers Network submitted by Robert J. Moore

43 Post Hearing Comments of the Environmental Groups submitted by Robert

---

 

7

Moore and Albert F. Ettinger

44 Post Hearing Comments of the Illinois Environmental Regulatory Group

submitted by Katherine D. Hodge

45 American Bottoms Regional Wastewater Treatment Facility submitted by

Susan M. Franzetti

46 Closing Comments of the Illinois Environmental Protection Agency

submitted by Connie L. Tonsor

47 Citizens Committee to Save Cache River submitted by Phyllis Oliver,

President

 

Several of the comments, such as PCs 40-46, included lengthy discussion of the issues

before the Board. Rather than summarize those comments individually, we will include

reference to those comments, where appropriate, when discussing specific issues below. Each of

the remaining comments, such as PCs 1-39, and PC 47, made at least one of the following points:

 

1. Antidegradation rules should be “strong” and not allow an increase of pollutants

in waterways, nor should the rules include the ability to add new pollutants. If

any business or company should petition the Board for relief, these petitions

should be handled on a case-by-case basis.

 

2. Citizens and/or citizens groups should be allowed to petition to have certain

waterways deemed an ORW and therefore protected from any harmful pollutants.

 

There were also other points mentioned in many of the public comments. Two comments

indicated that water is one of the most essential resources to our physical well being and that the

Board should seek to protect water values by strengthening the protection laws. PC 11 and PC

34. Lastly, a few of the public comments stated that the Clean Water Act does not say the only

objective is to maintain, but to “restore and maintain the chemical, physical, and biological

integrity of the Nation’s waters.” PC 10; PC 19.

PROCEDURAL BACKGROUND

On January 19, 2001, the Department prefiled testimony with the Board proposing that

four water bodies in Illinois be designated as ORWs in the instant rulemaking. On January 29,

2001, the Board received motions filed by IERG and Illinois Steel Group asking the Board to

strike the Department’s testimony.

3

On February 1, 2001, the Board entered an order denying

motions to strike the testimony of the Department. The Board agreed with IERG’s position that

one of the purposes of this rulemaking is to develop and establish a procedure by which waters

of the State of Illinois can be designated as ORWS. The Board also agreed that the procedural

regulations for designating ORWs were not in place, so, therefore, the Board will not designate

any specific water bodies as ORWS in this rulemaking. However, because in a rulemaking all

3

Dynegy Midwest Generation filed a comment (PC 38) in response to the prefiled testimony of

the Department prior to the Board ruling on the motions to strike. On the issue of designation of

ORWs, Dynegy indicated that the Board should adopt formal procedures for the designation of

ORWs before an attempt is made to name an ORW. PC 38 at 3.

---

 

8

information that is relevant and not repetitious or privileged may be admitted (see 35 Ill. Adm.

Code 102.426), the Board did not strike the Department’s testimony.

ISSUES

After three hearings and 47 public comments, the record in this rulemaking clearly

reflects that all the participants support some part of the rulemaking. However the participants

do not agree on several issues. First, IERG, CICI and American Bottoms proposed that the

Agency conduct a significance test prior to an antidegradation review. Second, those same

groups support a

de minimis

exception to the antidegradation requirements. Third, the

participants do not agree on the procedure the Board should use to determine that a water is an

ORW.

Significance Determination

 

The Agency’s proposal for high quality waters requires an antidegradation assessment or

review for any proposed increase in pollutant loading that necessitates a new, renewed or

modified NPDES permit or any activity that requires a CWA Section 401 certification. The

Agency testified that while all potential increases in pollutant loading would be subject to

antidegradation review on a case-by-case basis, the level of review would depend upon the

relative significance of the pollutant loadings. Tr. 11/17/00 at 73-74, PC. 46 at 10. In this

regard, the IERG and a number of other participants believe that the proposed regulations do not

allow the Agency to conduct anything other than a comprehensive antidegradation review

4

for

every increase in pollutant loading. PC 44 at 4. IERG has suggested changes to the Agency’s

proposal that provide for a “significance determination” to determine whether a proposed

increase in pollutant loading warrants a comprehensive antidegradation review.

 

IERG’s recommendations are supported by CICI and American Bottoms. PC 41 at 3 and

PC 45 at 11. IERG’s and Agency’s proposals concerning the issue of significance determination

is summarized in this section. This summary is followed by the Board’s discussion and findings

concerning significance determination.

 

IERG’s Proposal

 

IERG testified that the Board should adopt antidegradation implementation procedures

that parallel the tiered approach recommended by the USEPA Region 8’s Guidance on

Antidegradation Implementation. Tr. 12/6/00 at 80. IERG states that the first step of the

antidegradation review should involve the determination of whether an increased loading has a

significant impact on the receiving stream quality and uses. If an increased loading is

determined to have a significant impact, then the Agency should perform a comprehensive

review. In this regard, IERG notes that the states of Wisconsin, Minnesota and Massachusetts

have also provided for a significance review option. PC 44 at 7.

 

4

IERG and other participants refer to the Agency’s proposed antidegradation review

requirements at Section 302.105(c)(2) as “comprehensive” antidegradation review.

---

 

9

IERG has proposed amendments to the Agency’s proposal that add a significance

determination provision. This provision allows an applicant to request the Agency to determine

whether a comprehensive antidegradation review is necessary. The amendments require the

Agency, upon a request from an applicant, to determine whether the proposed increase in

pollutant loading will have a significant impact on the overall water quality, and existing uses of

the receiving stream. If the Agency determines that the increased loading will not have a

significant impact, such loading is considered to be in compliance with the Agency’s proposed

comprehensive antidegradation review provisions at Section 302.105(c)(2). On the other hand, if

the loading is determined to have a significant impact, the Agency is required to perform a

comprehensive antidegradation review. PC 44 at 4-5.

 

IERG’s proposal requires the Agency to perform a significance determination based on

information pertaining to the nature and characteristics of the discharge, and the receiving

stream. The proposal at Section 302.105(c)(2)(A)(iii) allows the Agency to make its

determination based on the following factors:

 

a) The volume, constituents. and concentrations of parameters in the

proposed increase in pollutant loading;

 

b) The nature of the proposed increase in pollutant loading, including

location of the discharge, and timing and physical characteristics of

the discharge; and

 

c) The nature and condition of the receiving water, including

characteristics of the water and of the water body, and any relevant

biological, chemical, or physical characteristics of the water which

will affect the impact of the proposed increase in pollutant loading

upon the waterway.

 

Or, alternatively the Agency may consider whether the applicable numeric

or narrative water quality standard will not be exceeded as a result of the

proposed activity and whether all existing uses will be fully protected.

 

IERG’s proposal requires the applicant to provide the necessary information pertaining to

the discharge, and allows the Agency to utilize other information sources specified in the

proposed regulations. IERG states that in performing the significance review, the Agency would

simply be conducting part of the analysis that the Agency would normally perform when

conducting a comprehensive antidegradation review under the proposed Section 302.105 (c)(2).

PC 44 at 5-6.

 

In this regard, IERG notes that the significance determination entails the review of the

same factors that must be considered by the Agency to evaluate the “fate and effect” of a

proposed increase in pollutant loading. Further, IERG’s proposed significance determination

allows the Agency to ensure that the applicable water quality standard would not be exceeded

and all existing uses would be fully protected. IERG states that if a proposed increase in

pollutant loading is determined to be not significant, then the Agency is not required to perform

the last two requirements of the proposed comprehensive antidegradation review. PC 44 at 6.

---

10

These requirements involve the evaluation of the alternatives to the proposed increase, and the

consideration of anticipated benefits to the community at large due to the activity that results in

the increased loading.

 

IERG states that the evaluation of alternatives and benefits analyses have the greatest

potential to adversely impact the timing relative to issuing an NPDES permit.

Id

. In this regard,

IERG notes that many of its industrial members experience a two to three-year lag time in the

Agency’s ability to act on NPDES renewal permit applications. IERG asserts that the Agency’s

inability to process current NPDES permit applications would worsen if comprehensive

antidegradation reviews are required for all increased loadings. IERG states that the inclusion of

the significance determination provides a tiered approach that promotes the Agency’s ability to

focus its time and resources on loadings that are truly significant. Tr. 2/6/01 at 10 and PC 44 at

6.

 

In addition, IERG testified that the proposed rules are very generally phrased and do not

provide any guidance for determining when to perform a comprehensive antidegradation review.

Tr. 2/6/01 at 34-35. IERG maintained that it is very important to clarify the proposed regulations

since the very general review criteria would result in subjective and arbitrary decisions. Tr.

2/6/01 at 38.

 

Agency’s Proposal

 

The Agency’s proposal does not provide for a separate significance determination. The

Agency’s position regarding the implementation of antidegradation standard for high quality

waters is that all potential increases in pollutant loading should be subject to the proposed

comprehensive review requirements at Section 302.105(c)(2). PC 46 at 10. However, the

Agency clarifies that the complexity of the review would be highly dependent upon the nature of

the activity, the pollutant and the character of the receiving stream.

Id

.

 

The Agency states that while all increases in pollutant loading do not require the same

level of review, even small amounts of increased loading of certain pollutants should not occur if

avoidable at no cost. The Agency explained that a review of a new loading of chloride would

differ significantly from a review for an increased loading of dioxin even if the pollutants are

being discharged into the same stream at the same time. Tr. 11/17/00 at 76-77. Although the

level of review depends on individual discharges, the Agency testified that it will perform the

reviews based on fate and effect, technology, and economic considerations. Tr. 11/17/00 at 77.

 

Regarding IERG’s proposal based on the USEPA Region 8 guidance, the Agency stated

that the Region 8 significance review is the same as the proposed antidegradation review. Tr.

11/17/00 at 75. The Agency testified that the issues suggested for consideration in the guidance

including alternative analysis are the same issues that the Agency considers in its antidegradation

review. Tr. 11/17/00 at 74. In this regard, the Agency argues that IERG’s proposal deviates

from the Region 8 guidance. The Agency notes that under IERG’s proposal, if a determination is

made that a discharge will not have a significant impact on the receiving stream, the Agency

would not have the opportunity to require an applicant to consider alternatives to avoid or

minimize the discharge even if no cost alternatives are available. PC 46 at 10. Thus, the Agency

---

11

asserts that IERG’s proposal goes beyond the significance review proposed in the USEPA

Region 8 Guidance. PC 46 at 12.

 

The Agency has expressed other concerns regarding IERG’s proposal. The Agency notes

that IERG’s proposal requires an evaluation of the impact of the pollutant loading on the water

body as a whole as opposed to an evaluation based on the impact of each parameter on the

receiving stream. PC 46 at 11. The Agency contends that as long as the overall water quality of

the stream is not significantly impacted, IERG’s proposal would allow increased loading without

an alternatives analysis even if a particular parameter has an impact on the receiving stream.

 

In addition, the Agency asserts that IERG’s proposal to allow for an appeal of any

Agency determination of significance is problematic since such a determination would not be the

Agency’s final permit decision. PC 46 at 12. The Agency states that it is not clear as to whether

an appeal of the Agency’s significance determination would allow third party participation.

Hence, the Agency contends that the significance determination as proposed by IERG may not

be federally approvable.

Id

.

 

The Agency testified that while it is not opposed to the concept of significance

determination, it is concerned about adding an additional step just to determine whether a review

should be done. Tr. 11/17/00 at 82. Further, the Agency maintained that if that additional step

of determining significance is more burdensome than doing the actual antidegradation review,

the determination would unnecessarily prolong the review process. Tr. 11/17/0082-83. In this

regard, the Agency noted that it would be willing to accept a process that reaches the same

significance decision without the burden of going through any additional time consuming

analyses.

 

USEPA Region 8 Guidance on Antidegradation Implementation

 

As noted above, IERG submitted the USEPA Region 8 guidance entitled “EPA Region

VIII Guidance: Antidegradation Implementation” to support its proposal to add a significance

determination provision. Exh. 1. The Region 8 guidance provides a framework for developing

antidegradation implementation procedures and addresses a number of critical antidegradation

issues, including significance determination. The Region 8 guidance provides for a “significant

degradation” determination to identify and eliminate from further review those activities that do

not present significant threats to water quality. Exh. 1 at 16.

 

The Region 8 guidance recommends that the significance determination should be made

on the basis of all water quality parameters that would be affected by the proposed activity. Exh.

1 at 16. Further, the guidance notes that such determination should be done on a parameter-by-

parameter basis. In addition Region 8 states that since significance determination is case

specific, it is not appropriate to specify rigid decision criterion.

Id

. Instead, the guidance sets

forth a comprehensive set of factors that the permitting authority may consider in making its

determination. These factors include the following:

 

  

a) Percent change in ambient concentrations predicted at the appropriate critical

conditions.

---

12

 

b) The difference, if any, between existing ambient quality and ambient quality that

would exist if all point sources were discharging at permitted loading rates.

 

c) Percent change in loadings, i.e. the new or expanded loadings compared to total

existing loadings to the segment or, for existing facilities only, the proposed

permitted loadings compared to the existing permitted loadings.

 

d) Percent reduction in available assimilative capacity.

 

e) Nature, persistence, and potential effects of the parameter of concern.

 

f) Potential for cumulative effects.

 

g) Predicted impacts to aquatic biota.

 

h) Degree of confidence in any modeling techniques utilized.

 

i) The difference, if any, between permitted and existing effluent quality.

 

The guidance states that special consideration should be given to activities that result in

increased loading of persistent toxics.

Id

. Further, the guidance recommends that the permitting

authority should make the significance determination based on appropriate modeling techniques

in conjunction with detailed characterization of the existing background water quality. Exh. 1 at

17.

 

In addition to the above factors, the guidance suggests different criteria for making the

significance determination such as lowering ambient water quality by more than 5% or reducing

assimilative capacity by more than 5%. However, the guidance states that the intent of a

significance determination should be to eliminate from review of only those activities that will

result in truly minor changes in water quality. In this regard, the guidance recommends that the

permitting authority be allowed to by-pass the significance determination when available

information clearly indicates that reasonable or less degrading alternatives to lowering existing

water exist. Exh. 1 at 18.

 

Board Discussion

 

IERG’s proposal to add a significance determination is intended to provide the regulated

community some degree of certainty as to how the Agency implements the antidegradation

provisions, and ensure that the Agency’s resources are used effectively on “truly” significant

loadings. While IERG’s intent is reasonable given the broad criteria proposed by the Agency,

the proposed significance determination procedure raises a number of concerns.

 

A major concern regarding IERG’s proposal is the limitation placed on the Agency’s

ability to perform alternatives and/or benefits analyses for discharges determined to have no

significant impact on receiving water quality. See IERG’s proposal at Section 302.105(c)(2)(A).

---

13

IERG’s proposal for adding a significance determination precludes the Agency from identifying

and implementing alternatives that either eliminate or reduce the pollutant loading for discharges

determined not to have a significant impact.

 

In this regard, the Agency testified that even small amounts of increased loading of

certain pollutants should not occur if avoidable at no cost. Tr. 12/6/00 at 126. As noted above,

the USEPA Region 8 guidance also recommends that the significance determination provision

should allow the permitting agency to perform analyses of alternatives and benefits when

available information clearly indicates that reasonable or less degrading alternatives to lowering

existing water exist. Exh. 1 at 18.

 

In addition while IERG’s significance determination is based upon the Region 8

guidance, it does not incorporate certain key concepts recommended by the guidance. First, as

noted by the Agency, IERG’s proposal requires the comparison of the impact of the pollutant

loading on the quality of water body as a whole. In this regard, the Region 8 guidance clearly

sets forth that significance determination should be made on a parameter-by-parameter basis for

all water quality parameters that would be affected by the proposed activity. Exh. 1 at 16. By

considering the impact of pollutant loading on overall water quality, IERG’s proposal would

allow increased loading without further review if the overall quality of the stream is not impacted

even if the particular parameter has an impact on the receiving stream.

 

Finally, as noted by the Agency, IERG’s proposal for significance determination does not

appear to allow for public participation that is an essential aspect of the antidegradation review.

It is not clear as to whether any opportunity for third party participation is available in an appeal

of the Agency’s significance determination that may not be its final determination on the NPDES

permit. In this regard, the Region 8’s guidance allows for public participation on the issue of

significance determination. The guidance specifically states that when a significance

determination is in dispute, the significance factors considered by the permitting agency should

be the focal point of opposing views of the applicant or the public. Exh. 1 at 16.

 

Regarding the Agency’s proposal, the Board notes that while the Agency’s proposed

antidegradation review does not include a significance determination step, any increased loading

would be subject to the review. Thus, the proposal assures the Agency’s ability to ensure

compliance with the proposed antidegradation standard. Although the Agency stated, in

response to IERG’s concerns, that each increase in pollutant loading would be reviewed on a

case specific basis and not all increases in loading would require the same level of review, the

Agency’s proposal does not require the review to be based upon a “sliding scale” or “tiered”

approach. The proposal allows the Agency to decide on a case-specific basis what level of

review is necessary.

 

Conclusion on Significance Determination

 

While the Board recognizes that all proposed increases in pollutant loadings should not

require the same level of review to demonstrate compliance with the proposed antidegradation

standard, the Board believes that implementation procedures should allow the Agency to decide

on a case-specific basis what level of review is appropriate. Further, the Board strongly believes

---

14

that antidegradation implementation procedures should not limit the Agency’s ability to ensure

compliance with the antidegradation standard’s main objective of identifying and implementing

alternatives that reduce or eliminate the increased loadings. In this regard, the Board finds that

IERG’s proposed significance determination procedure precludes the Agency from performing

analyses of alternatives and benefits unless the proposed increase is determined to have a

significant impact on the receiving stream.

 

IERG’s proposal requires the Agency to go through the “fate and effect” evaluation and

stop short of giving any consideration to any alternatives to the proposed activity even if

available information indicates that economically reasonable or no cost alternatives are available

to reduce or eliminate the proposed increased loadings. While it can be argued that under

IERG’s proposal the Agency could consider alternatives and benefits of a proposed activity by

determining that the activity would have a significant impact, the Agency would be unable to do

so until the resolution of any appeals stemming from the Agency’s significance determination.

Thus, IERG’s significance determination proposal may end up consuming more Agency

resources than intended. In light of this, the Board declines to adopt the significance

determination proposed by IERG.

 

Instead, the Board adopts for first notice the antidegradation provisions proposed by the

Agency at Section 302.105(c)(2). The Board finds that the proposed antidegradation review

criteria provides the Agency flexibility to perform on a case-by-case basis the appropriate level

of review without placing any undue limitations on its ability to ensure compliance with the

proposed antidegradation standard.

 

De minimis

Exception

 

IERG recommends that the Board include an exception from antidegradation review for

de minimis

discharges that use less than 10% of a receiving water body’s assimilative capacity.

Tr. 2/6/01 at 11 and PC 44 at 14. Dierdre Hirner, Executive Director of IERG, testified that

without a

de minimis

exception the Agency would be bogged down in an endless review of

permits that have virtually no environmental impact. Tr. 2/6/01 at 11. Hirner asserted that the

establishment of a

de minimis

exception would allow the Agency to more effectively use its

limited resources.

 

Fredric P. Andes, an environmental attorney from Barnes and Thornburg, testified on

behalf of IERG regarding the proposed

de minimis

exception. He stated that USEPA has

provided guidance to the states that makes it clear that states have a substantial amount of

flexibility in how to craft their antidegradation program. Tr. 2/6/01 at 29. In this regard, IERG

states that USEPA has endorsed the use of a 10%

de minimis

exception from antidegradation

review requirements in its proposed Water Quality Guidance for the Great Lakes System. PC 44

at 14. Further, IERG notes that USEPA has approved the use of a

de minimis

exception for

every other state in Region 5. IERG states that USEPA has approved the use of

de minimis

 

levels of 10% for Indiana, Michigan and Ohio, and 33% for Wisconsin. PC 44 at 15 and Tr.

2/6/01 at 33. IERG also notes that a number of states in other parts of the country including New

Hampshire and Texas have also received USEPA’s approval for

de minimis

exception to

antidegradation review. PC 44 at 15.

---

15

 

Regarding the Agency’s proposal, Andes testified that proposed rules are very generally

phrased and do not provide any guidance for determining when to perform a comprehensive

antidegradation review. Tr. 2/6/01 at 34-35. He maintained that it is very important to clarify

the proposed regulations since the very general review criteria would result in subjective and

arbitrary decisions. Tr. 2/6/01 at 38.

 

The Agency states that even though a number of states have incorporated some type of

de

minimis

exception in their implementation procedures, it has the same concerns regarding

de

minimis

exception as those with the significance determination. PC 46 at 14-15. The Agency

asserts that the assimilative capacity of a water body is not constant, and hence, it may take as

much effort to determine 10% of the remaining assimilative capacity as completing the

antidegradation review. Further, the Agency argues that IERG’s proposal to include a

de

minimis

exception is unlike the other exceptions proposed at Section 302.105(d). The Agency

notes that with the other exceptions it would have had the opportunity to review the proposed

increase in pollutant loading and to determine that the intent of Section 302.105 had been met.

PC 46 at 15. In contrast, the

de minimis

exception would require the Agency to determine if a

review is necessary.

 

Board Discussion

 

The Board notes that the

de minimis

exception proposed by IERG is similar to the

significance determination in that the exception defines what constitutes lowering of water

quality. While significance determinations may be viewed as a narrative standard, the

de

minimis

exception defines the lowering of water quality on a quantitative basis. As noted by

IERG, a number of other states have adopted different types of quantitative significance tests or

combination of quantitative or qualitative tests. Although

de minimis

exception may be helpful

in focusing Agency’s resources on only those increased loadings that pose a significant threat to

water quality, the proposed

de minimis

exception raises a number of concerns.

 

The Board notes that since the proposed exception does not make any distinctions based

on the nature and characteristics of the discharge, IERG’s proposal would allow discharge of

bioaccumulative and persistent chemicals without an Agency review as long as the increased

level is below the

de minimis

level. Discharge of even small amounts of such chemicals may not

be advisable in certain water bodies. Further, the Board agrees with the Agency that the actual

determination of the assimilative capacity of receiving water body may take as much effort as

performing the antidegradation review.

 

Conclusion on

De Minimis

 

 

Based on the above discussion, the Board declines to adopt the

de minimis

exception

proposed by IERG. The Board believes that the Agency should have the opportunity to review

any proposed increase in pollutant loading. In this regard, the Board notes that the Agency

would have had an opportunity to review the proposed increase in pollutant loading with respect

to all the exceptions proposed under Section 302.105(d).

 

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16

Designation of Outstanding Resource Waters

The participants do not agree on the issue of how an ORW should be designated. The

Environmental Groups believe that the process proposed by the Agency is cumbersome and will

make it nearly impossible for them to propose waters for designation as an ORW. The

Department agrees that the designation process proposed is too cumbersome, particularly in the

area of economic information required. On the other hand, business and industry argue for an

adjudicatory process to be used to determine if a water should be designated as an ORW.

Further, business and industry support the extensive notice requirements suggested by the

Agency and ask for even more information.

In the following discussion, the Board will summarize the positions of the Environmental

Groups, the Department, business and industry, and the Agency. Finally, the Board will discuss

the rationale for the ORW designation rules which appear in this first-notice order.

Environmental Groups

The Environmental Groups testified and presented public comments indicating that they

believe the Agency proposed requirements for petitioning for an ORW designation are too

onerous. The representatives of the McHenry County Defenders ask that groups be given a

reasonable opportunity to petition for ORW designation. Tr. 11/17/00 at Exh. 3, p. 3. McHenry

County Defenders assert that organizations such as theirs and even private citizens do not have

access to “current and verifiable information” on the impacts of an ORW that are required by the

Agency’s proposal.

Id

.

The representative from Prairie Rivers Network also testified that the requested economic

information is excessive and petitioners should only be required to provide what they know. Tr.

12/6/00 at Exh. 13, p. 3. Prairie Rivers Network maintains that the State and other participants in

the process could fill in any additional information, and that designation of an ORW is not a

prohibition of future economic development.

Id

. Prairie Rivers Network believes new

development could occur in the form of canoe liveries, fishing equipment stores and other

recreational and tourist based business.

Id

.

The Environmental Groups all assert that the proposed notice requirements are too

extensive on the one hand. However, the notice requirements do not include the original

petitioner for ORW designation in the case of a repeal of an ORW designation. Tr. 11/17/00 at

Exh. 6, p. 2-3; Tr. 2/6/01 at Exh. 30, p. 35. They maintain that the extensive list of entities to be

notified is wasteful and could have a chilling effect on requests for ORWs. Tr. 11/17/00 at Exh.

4, p. 2; Exh. 6, p. 3. The Environmental Groups argue that there is no need for notification more

extensive than the notification requirements of a variance, site-specific rule, or NPDES permit

proceeding. Tr. 12/6/00 at Exh. 13, p. 3.

Department of Natural Resources

The Department testified that the Agency proposal requires information on “various

benefits and economic impacts” that take “extensive analysis and access to data not readily

available to the public” in order for the requirements to have any meaning. Tr. 2/6/01 at Exh. 32,

p. 1. The Department further testified that an examination of benefits of an ORW designation

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17

would involve site specific studies and surveys on difficult to calculate concepts such as

aesthetic, environmental, recreational, and health benefits. Tr. 2/6/01 at Exh. 32, p. 2. The

Department maintained that these types of studies would take extensive resources to complete

and there could be strong disagreement on the validity of the analysis.

Id

. The Department

stated:

Consequently, this can be a burdensome process for individuals and organizations

that want to petition for ORW designation, requiring extensive technical and legal

support for each ORW designation petition. Designation of an ORW should be

based on water quality, biological criteria and significant recreational resources;

adding an economic analysis requirement may make it impossible to designate an

ORW.

Id

.

The Department testified that the process outlined in the Agency’s proposal is so burdensome

that the Department is “not sure . . . we could have the resources even within DNR to actually

meet” the requirements to designate an ORW. Tr. 2/6/01 at 181-82.

Chemical Industry Council of Illinois (CICI)

CICI indicated that it is important to recognize the “tremendous social, environmental

and economic impacts ORW designation would have on a given water body’s existing and future

uses.” PC 41 at 5. CICI commented that an ORW designation not only affects the water body

but it has major implications for property owners adjacent to the water body.

Id

. CICI maintains

that it is imperative that the final rule specifies what information must be submitted in support of

an ORW designation and to make the petitioner assure that property owners are not

compromised. PC 41 at 6.

Illinois Environmental Regulatory Group (IERG)

IERG maintains that designation of a water body as an ORW could have “profound

economic impact” and broad ramifications for surrounding property owners. Tr. 12/6/00 at Exh.

17, p. 7. Because of this, IERG believes that ORW designations should only occur after “a very

rigorous process” using definitive criteria with input from “all affected parties”.

Id

. IERG

further commented that designation of an ORW should only be made when the person

petitioning for an ORW “is fully prepared to articulate and prove the justification for the

designation. The burden of proof must be on the petitioner.”

Id

.

IERG believes that designating a stream segment as an ORW “is well beyond protecting

biological and recreational values of unique waters; it is land use regulation.” Tr. 2/6/01 at Exh.

24, p. 7. IERG therefore proposes amending the Agency’s proposal in two significant areas.

First, IERG is proposing changes at Section 303.205 to clarify that the process used to petition

the Board for an ORW designation is the adjusted standard procedures contained in Section 28.1

of the Act (415 ILCS 5/28.1 (2000)). Tr. 2/6/01 at Exh. 24, p. 8. IERG feels that the adjusted

standard process is appropriate for ORW designation because of “the analogy between ORWs

and Class III Groundwater, the designation of which takes place through the adjusted standard

procedure.”

Id

. Second, IERG is also proposing changes to clarify that the burden of proof will

be on the person seeking the designation and to clarify what information must be submitted.

Id

.

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18

Bill Compton testified on behalf of Caterpillar and IERG regarding the suggested

changes to the Agency’s proposal. Compton cited testimony by Toby Frevert of the Agency to

bolster the position of IERG. In response to questions by IERG, Frevert suggested that the

ramifications of a decision to designate and ORW are more significant than a typical adjusted

standard or a statewide rulemaking, as some activities will be prohibited. Tr. 11/17/00 at 88.

Frevert also opined that ORW designations and special resource groundwater designations would

impose significant restrictions on property owners. Tr. 11/17/00 at 94. Compton testified that

Caterpillar and IERG agree with Frevert’s testimony and submit that the adjusted standard

procedure should be the procedure used for designation of ORWs. Tr. 2/6/01 at Exh. 27, p. 4.

IERG believes that the adjusted standard procedure would provide more clarity on how

the proceedings will take place, thereby promoting a “smoother” proceeding. Tr. 2/6/01 at Exh.

27, p. 4-5. IERG maintains that given the impact of an ORW designation on the “rights of

owners adjacent” to the ORW, an adjudicatory process such as an adjusted standard “is the only

fair way to consider and weigh the rights and positions of all interested parties” when making a

decision. Tr. 2/6/01 at Exh. 27, p. 5. Compton testified that “[u]nlike a regulatory process an

adjudicatory process provides a formal mechanism by which the Board can consider and weigh

the rights and positions of all interested parties while making its decision.”

Id

. Compton opined

that an adjudicatory process would provide all affected property owners and other interested

parties with an opportunity to participate in a “fair and open process.”

Id

.

Compton suggested that “the Board has acknowledged that the adjusted standard

procedure is appropriate for ORW designation.” Tr. 2/6/01 Exh. 27, p. 5. According to

Compton, the Board’s acknowledgement is implied by similar regulations which allow the

adjusted standard procedure to be used to determine if a groundwater is a “special resource

groundwater” at 35 Ill. Adm. Code 620.

Id

. Also, IERG notes that the definition of special

resource groundwater found at 35 Ill. Adm. Code 620.230 is similar to the definition of ORW

proposed by the Agency.

Id

. Because of these similarities and because of the “greater burdens”

an ORW designation will place on property owners, IERG proposed revising to the Agency

proposal to require that ORWs be designated through adjusted standard procedures. Tr. 2/6/01 at

Exh. 27, p. 7.

IERG also suggested amendments to the Agency proposal to “clarify what information” a

petitioner for an ORW must include in the petition. Tr. 2/6/01 at Exh. 27, p. 7. IERG believes

that the information should include:

a description of the surface water body at issue, including whether any wetlands

are connected to the surface water body and whether any endangered or

threatened plant or animal life is present; information on the reasons for the

proposed designation (e.g., the health, environmental, recreational, aesthetic or

economic benefits of the designation); a statement of the impact of the

designation on economic and social development; information on the present and

anticipated uses of the surface water body; and information on the present and

anticipated quality of the surface water body.

Id

.

IERG testified that all of this information is necessary for a complete review of a request and a

subsequent determination by the Board.

Id

.

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19

IERG suggested clarifying the proposal with three additional changes. First, IERG

suggests that the rule be clarified to indicate that the Board will only declare a water is an ORW

“when the benefits of that designation will ‘substantially’ outweigh the benefits of economic or

social opportunities that will be lost as a result of the designation.” Tr. 2/6/01 at Exh. 27, p. 8.

Second, IERG’s suggested that the petitioner be required to provide proof of service of the

petition for designation on specified parties including NPDES permittees who discharge to the

surface water at issue and owners of real property located adjacent to the surface water.

Id

.

Finally, IERG suggests adding a definition of the term “surface water body” to the rule. Tr.

2/6/01 at Exh. 27, p. 9.

In its public comment, IERG reiterated its position on the ORW process. IERG urges the

Board to utilize the adjudicatory process of an adjusted standard for the determination of ORWs.

PC 44 at 18. IERG has proposed the use of adjusted standard because the burden of proof for a

proponent in an adjusted standard proceeding is well established.

Id

. IERG assert that the issue

of burden of proof is crucial for several reasons. First, IERG opines that because of the “severe

impact that an ORW designation would have” the burden of proof must be clear.

Id

. Second,

IERG argues that a clear burden of proof gives interested parties a clear direction on what they

must show to either support or oppose a designation. PC 44 at 19. Third, IERG states that the

burden of proof in an adjusted standard gives the Board a framework to utilize when considering

a petition to designate an ORW.

Id

. Fourth, and finally, IERG believes the use of an adjusted

standard proceeding “makes it much easier for a reviewing court to evaluate the Board’s

decision.” PC 44 at 20.

Finally, IERG reiterated the similarities between the ORW designation and special

resource groundwater. IERG points out that both are unique bodies of water and the designation

of either category would place “burdens on the owners of real property at which the waters are

located.” PC 44 at 21. For these reasons, IERG, though “not wedded” to the use of the adjusted

standard proceeding, believes that the process for determining if a water body is an ORW should

be an adjudicatory process.

Illinois Environmental Protection Agency (Agency)

The Agency’s final comment indicates that the Agency “believes” that the process to

designate an ORW “should be an open one in which interested groups could petition” the Board

for designation of an ORW. PC 46 at 16. The Agency compared the special resource

groundwater designation process to the ORW process and believes that ORW designation has

“greater impacts than” special resource groundwater designations and the ORW designation

“would impose prohibitions upon many types of activities.”

Id

. The Agency indicates that the

special resource groundwater designation “simply allows for the setting of a more protective

standard.” PC 46 at 17.

Board Discussion

The Board has carefully reviewed the testimony and comments presented on the issue of

what process the Board should use in making the ORW designation. For the reasons discussed

below, the Board is convinced that the proper avenue for ORW designation is rulemaking under

Title VII of the Act (415 ILCS 5/Title VII (2000)) and 35 Ill. Adm. Code 102 of the Board’s

---

20

procedural rules. Many of the concepts advocated by the commentors will be included in the

ORW designation rulemaking process. Additionally, by virtue of the rulemaking process, many

informational and service requirements sought by the Agency and IERG will be unnecessary.

Therefore the Board will propose amendments to the Board’s procedural rules found at 35 Ill.

Adm. Code 102, to set forth the process for designation of an ORW.

The rulemaking process is the best method for designating ORWs in Illinois for several

reasons. First, the many requirements of Title VII of the Act and the Administrative Procedure

Act (5 ILCS 100/1-1

et seq.

(2000)) will provide the Board with the tools to develop the most

comprehensive and complete record for ORW designation decisions possible. Second, the open

nature of a rulemaking process in Illinois will allow for more ample opportunities for all

individuals to testify or comment in support or opposition to an ORW designation proposal.

Finally, the ability to appeal a Board rule is more broad than the opportunity to appeal a Board

decision in an adjusted standard proceeding.

Many of the requirements of Title VII of the Act and the Administrative Procedure Act (5

ILCS 100/1-1

et. seq.

) will assist the Board in developing a complete record for its decision. For

example, a proposed rulemaking must be published in the

Illinois Register

for a minimum 45-

day public comment period. Then a proposed rule must be submitted to the legislative Joint

Committee on Administrative Rules (JCAR) for review. If JCAR does not object to the rule, the

rule may be proposed for final adoption and publication in the

Illinois Register

. The adopted

rule is then a part of the Illinois Administrative Code. This process will allow for statewide

publication and notice of a proposal as well as an opportunity for substantial comment prior to

the final designation of an ORW. Then once an ORW has been designated, the designation is

published as a part of the Illinois Administrative Code allowing anyone interested to readily

identify such designated waters.

Furthermore, Section 27 of the Act states, in part:

In promulgating regulations under this Act, the Board shall take into account the

existing physical conditions, the character of the area involved, including the

character of surrounding land uses, zoning classifications, the nature of the

existing air quality, or receiving body of water, as the case may be, and the

technical feasibility and economic reasonableness of measuring or reducing the

particular type of pollution. 415 ILCS 5/27(a) (2000).

This provision would require the Board to examine land use, including zoning, the body of

water, existing physical conditions of the body of water, technical feasibility, and economics as a

part of any rulemaking requesting an ORW designation. Thus, the Board would be required by

statute to examine many of the areas that the comments requested the Board review in an

adjudicatory process.

The Board does not agree with IERG’s position that a “burden of proof” must be

established in the ORW designation process. The Board’s rulemaking proceedings allow for

testimony, cross-questioning of testifiers, and comments from any person or group as long as the

testimony is relevant and not repetitious. 35 Ill. Adm. Code 102.426 and 102.430. The

proponent of a rule must present testimony in support of that rule. 35 Ill. Adm. Code 102.428.

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21

Thus, the rulemaking process will allow for development of the most complete record possible,

allowing ample opportunities for those in support or opposition to present opinions to the Board

on the designation of an ORW. The Board can then weigh all the information and evidence in

the record and determine if the designation of an ORW is warranted. Furthermore, this same

rulemaking process will be available to repeal an ORW designation should circumstances change

concerning that body of water.

Finally, the Board believes that a rulemaking is the more appropriate forum for

determining if a body of water should be designated an ORW because of the greater ability to

appeal a Board rule. Section 29(a) of the Act provides:

Any person adversely affected by any rule or regulation of the Board may obtain a

determination of the validity or application of such a rule or regulation by petition

for review under Section 41 of the Act. 415 ILCS 5/29(a) (2000).

The Board believes that an adjusted standard proceeding or other types of adjudicatory

proceeding would have several problems that are not associated with a rulemaking. First,

Section 28.1 of the Act provides:

 

After adopting a regulation of general applicability, the Board may grant, in a

subsequent adjudicatory determination, an adjusted standard for person who can

justify such an adjustment . . . . 415 ILCS 5/28.1(a).

 

Thus, Section 28.1 of the Act allows for an adjustment from a rule of general applicability.

There is no general designation rule for water or water segments in the State of Illinois, but

instead water or water segments are subject to the water quality standards. Therefore, requesting

that a water or water segment be designated an ORW is not an adjustment from a rule of general

applicability and such a proceeding would be inappropriate.

5

 

 

The other types of adjudicatory proceedings are variances and permit appeals. A

variance is of limited duration and is also a variance from a rule of general applicability. See

415 ILCS 5/35-38. A permit appeal would be an appeal from a decision of the Agency. See 415

ILCS 5/40. Clearly, either of these suggestions would be problematic.

 

The Board also notes that the appeal of an adjusted standard is provided for in Section

28.1(g), which merely provides that “[a] final Board determination under this Section may be

appealed pursuant to Section 41 of the Act.” 415 ILCS 5/28.1(g). Clearly the language of the

Act provides more extensive rights to appeal a rulemaking decision of the Board than an adjusted

standard determination by the Board.

 

5

Special use groundwater designations are an adjustment from a rule of general applicability at

35 Ill. Adm. Code 620.201 that classifies all groundwater of the State of Illinois. And in fact, the

opinion which accompanied the adoption of special resource groundwater classification rule (35

Ill. Adm. Code 620.260) states in part: “Section 620.260 specifies that reclassification of any

groundwater can occur as a result of an adjusted standard proceeding.” R89-14(B) slip. op. 15.

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22

Proposed Rule on ORW designation

 

Having determined that the Board will propose the rulemaking process be used for the

designation of ORWs, the Board will explain the specifics of the proposal on ORW designation.

First will be a discussion of the requirements for notice of an ORW designation petition. This

will be followed by an explanation of the informational requirements. Finally, the Board will

specify the procedures the Board will follow when receiving an ORW designation petition. The

Board notes that the caption in this proceeding will be amended to reflect that the Board is

proposing amendments to 35 Ill. Adm. Code 102.800-102.830.

As indicated above, the Agency’s proposal requires service of a petition for ORW

designation on a host of individuals, groups and even legislators. In addition to those the Agency

has listed, IERG’s proposal would serve the petition for ORW designation on “all owners of real

property” located “adjacent or contiguous” to the water or water segment at issue. Tr. 2/6/01

Exh. 24 at Appendix B, p. 3. The Board does not believe such extensive service of the petition is

necessary for several reasons. First, as discussed above, publication of the proposal in the

Illinois Register

, which contains all proposed and adopted Illinois rules, will notify the public of

the proposal. Second, the Board lists all new proceedings in the Board’s

Environmental Register

that has statewide distribution and is also found on the Board’s website. Third, the Board’s

website has already included the complete text of proposals for rulemaking among the

information that is readily available to the general public. Therefore, public notice will be in the

Illinois Register

and the

Environmental Register

and the proposal can be made available on the

Board’s web page. Once a proposal has been accepted, the Board will hold at least two public

hearings on the proposal and those hearings will also be publicly noticed as required by the Act

(415 ILCS 5/28 (2000)). The Board generally holds at least one public hearing in the area of the

State to be affected by the rulemaking and publishes notice in local newspapers of the hearings.

Thus, property owners and other affected individuals will have an opportunity to be aware of the

ORW proposal and meaningfully participate in a local hearing.

For all these reasons, the Board believes that an extensive service requirement proposed

by IERG and the Agency is not appropriate. The Board’s proposed rules will require service on

the Agency, the Department and the Attorney General, as it does in all rulemakings. Further, the

Board will not proceed with the Agency’s proposal requiring notice of the proposal be published

in a newspaper of general applicability. The Board’s general rulemaking provisions (35 Ill.

Adm. Code 102.202) do not include a requirement for publication by the proponent and the

Board sees no need to add one here. The APA requires that all state rule proposals be published

in the

Illinois Register

, and various interest groups already regularly scan that publication for

notices that may impact their constituents.

As to the information which must be included in the petition for an ORW designation, the

Board will propose for first notice the information requirements offered by the Agency’s

proposal with some slight changes. The Board understands the concerns of the Department and

the Environmental Groups. However a careful review of the Board’s rulemaking requirements at

35 Ill. Adm. Code 102.202 and 208 demonstrates that the informational requirements offered by

the Agency are not dissimilar to those required in a regular or site-specific rulemaking. The

Board will amend the language proposed by the Agency to insure consistency between the

proposed rule and the existing Board regulations.

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23

Inclusion of Agency Rules in Board Proposal

IERG noted in its final comment that it believes it is necessary to incorporate certain of

the Agency’s proposed procedures at Part 354 in the Board’s rulemaking. PC 44 at 9. IERG

stated that it believes that the manner in which the Agency requests information from an

applicant, revises that information and makes the results of its assessment known to the public is

inextricably linked to achieving the antidegradation standard. PC 44 at 10.

Discussion

The Part 354 amendments received many comments during this rulemaking, even though

not technically a part of the rulemaking. See Tr. 11/17/00 at Exh. 5; Tr. 11/17/00 at 33-35, 59-

63, 132-36; and Tr. 12/6/00 at Exh. 13. Thus, the Agency’s procedures for implementing the

antidegradation policy adopted by the Board appear to be linked to the actual policy. For this

reason, the Board will go forward with the change suggested by IERG in this first-notice

proposal. The Board will place in 35 Ill. Adm. Code 302(f), the Agency’s procedures for

implementing the antidegradation policy. The Board invites comment from all the participants

on this proposal.

Streams With Zero 7Q10 Flow

At the Board’s first hearing in this matter Edward L. Michael, testifying on behalf of the

Illinois Council of Trout Unlimited, indicated a concern that streams with a zero 7Q10 flow were

being excluded from consideration as an ORW in the Agency’s proposal. Tr. 11/17/00 at Exh. 4,

p. 2. Michael testified that some water bodies are by nature intermittent and have a specially

adapted flora and fauna.

Id

. In other instances intermittent flow is only one component of a

stream or the flow may disappear during low flow periods below the surface into underground

channels and reappear miles away.

Id

. Michael maintains that all of these instances of zero

7Q10 flow streams should be eligible for consideration as an ORW.

Dave Thomas, testifying on behalf of the Department, also believes that steams with zero

7Q10 flow should be eligible for consideration. Thomas indicated that some of these streams

might be “biologically productive ones.” Tr. 2/6/01 at 179-180. In fact three of the four streams

the Department would consider for immediate ORW designation are zero 7Q10 flow streams.

Tr. 2/6/01 at 180.

Discussion

The language of the Agency’s proposal states that: “Stream segments that have a 7Q10

low flow of zero will generally not be considered a candidate for this designation.” Based on the

testimony, the Board finds that a stream or stream segment with a zero 7Q10 flow may be

eligible for ORW designation. The biology of a stream will speak for itself during an ORW

designation process.

Other Suggested Changes

In addition to the specific changes discussed throughout this opinion, the Board also

made several changes suggested by the Agency in PC 46. Many of those changes clarified the

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24

language as originally proposed. The Agency also suggested accepting certain suggestions made

by the Environmental Groups and IERG. The Board also made changes to the proposal to insure

consistency administrative code rules and for clarity.

CONCLUSION

The Board today proposes for first notice amendments to the Board’s antidegradation

water rules and the Board will propose a procedure for designating waters of the State of Illinois

as Outstanding Resource Waters. The Board is proposing the antidegradation rules without an

exception for

de minimis

changes in discharges to waters of the State. Further, the Board has

determined at this time that it will not proceed with a significance determination included in the

rule. Finally, with regard to the designation of ORWs, the Board will propose a rulemaking

process for ORW designation in Illinois. The Board will schedule additional hearings by hearing

officer order at a later date.

ORDER

The Board directs the Clerk to cause the publication of the following rule for first notice

in the

Illinois Register

.

SUBPART H: OUTSTANDING RESOUCE WATER DESIGNATION

 

Section 102.800 Applicability

 

This Subpart applies to any person seeking an Outstanding Resource Water (ORW) designation

for a surface water or any water segment as provided by 35 Ill. Adm. Code 303.205.

Section 102.810 Petition

 

Any person may submit a petition for the adoption, amendment or repeal of an ORW

designation. The original and nine (9) copies of each petition must be filed with the Clerk and

one (1) copy each served upon the Agency, Illinois Department of Natural Resources, and the

Attorney General.

Section 102.820 Petition Contents

 

Each proponent must set forth the following information in its proposal:

 

a) The language of the proposed rule, amendment, or repealer identifying the waters

or water segment being proposed for designation as a ORW. Language being

added must be indicated by underscoring, and language being deleted must be

indicated by strike-outs. The proposed rule must be drafted in accordance with 1

Ill. Adm. Code 100.Subpart C;

 

b) A statement describing the specific surface water or water segment for which the

ORW designation is requested and the present designation of the surface water or

water segment;

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25

 

c) A statement describing the area in which the specific surface water or segment

exists including:

 

1) The existence of wetlands or natural areas;

 

2) The living organisms in that area including endangered or threatened

species of plants, aquatic life or wildlife listed pursuant to the Endangered

Species Act, 16 USC 1531 et seq. or the Illinois Endangered Species

Protection Act, 41 ILCS 10.

 

d) A statement supporting the designation including the health, environmental,

recreational, aesthetic or economic benefits of the designation;

 

e) A statement identifying the ORW designation’s anticipated impact on economic

and social development. This statement should include:

 

1) Impacts on the regional economy;

 

2) Impacts on regional employment;

 

3) Impacts on the community;

 

4) A comparison of the health and environmental impacts to the economic

impact of an ORW designation.

 

f) A statement describing the existing and anticipated uses of the specific surface

water or water segment for which the ORW designation is requested;

 

g) A statement describing the existing quality of the specific surface water or water

segment warranting the ORW designation;

 

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

 

i) Copies of any material to be incorporated by reference within the proposed

designation pursuant to Section 5-75 of the Administrative Procedures Act;

 

j) Proof of service upon all persons required to be served pursuant to Section

102.810 of this Part;

 

k) Unless the proponent is the Agency, Illinois Department of Natural Resources or

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

to Section 28 of the Act and Section 102.160(a); and

 

l) Where any information required by this Section is inapplicable or unavailable, a

complete justification for such inapplicability or unavailability.

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26

 

Section 102.830 Board Action

 

a) Dismissal

 

1) Failure of the proponent to satisfy the content requirements for proposals

under this Subpart or failure to respond to Board requests for additional

information will render a proposal subject to dismissal for inadequacy.

 

2) Failure of the proponent to pursue disposition of the petition in a timely

manner will render a petition subject to dismissal. In making this

determination, the Board may consider factors including the history of the

proceeding and the proponent’s compliance with any Board or hearing

officer orders.

 

3) Any person may file a motion challenging the sufficiency of the petition

pursuant to 35 Ill. Adm. Code 101.Subpart E.

 

 

b) Designation of ORW. The Board must designate a water body or water body

segment as an ORW and list it in 35 Ill. Adm. Code 303.206 if it finds:

 

1) The water body or water body segment is of uniquely high biological or

recreational quality; and

 

2) The benefits of protection of the water from future degradation outweigh

the benefits of economic or social opportunities that will be lost if the

water is designated as an ORW.

 

(Added at __________ Ill. Reg. __________, effective __________.)

 

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE C: WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 302

WATER QUALITY STANDARDS

SUBPART A: GENERAL WATER QUALITY PROVISIONS

Section

302.100 Definitions

302.101 Scope and Applicability

302.102 Allowed Mixing, Mixing Zones and ZIDS

302.103 Stream Flows

302.104 Main River Temperatures

302.105 Antidegradation

Nondegradation

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27

 

SUBPART B: GENERAL USE WATER QUALITY STANDARDS

Section

302.201 Scope and Applicability

302.202 Purpose

302.203 Offensive Conditions

302.204 pH

302.205 Phosphorus

302.206 Dissolved Oxygen

302.207 Radioactivity

302.208 Numeric Standards for Chemical Constituents

302.209 Fecal Coliform

302.210 Other Toxic Substances

302.211 Temperature

302.212 Ammonia Nitrogen and Un-ionized Ammonia

302.213 Effluent Modified Waters (Ammonia)

 

SUBPART C: PUBLIC AND FOOD PROCESSING WATER SUPPLY STANDARDS

Section

302.301 Scope and Applicability

302.302 Algicide Permits

302.303 Finished Water Standards

302.304 Chemical Constituents

302.305 Other Contaminants

302.306 Fecal Coliform

 

SUBPART D: SECONDARY CONTACT AND INDIGENOUS AQUATIC LIFE

STANDARDS

Section

302.401 Scope and Applicability

302.402 Purpose

302.403 Unnatural Sludge

302.404 pH

302.405 Dissolved Oxygen

302.406 Fecal Coliform (Repealed)

302.407 Chemical Constituents

302.408 Temperature

302.409 Cyanide

302.410 Substances Toxic to Aquatic Life

 

SUBPART E: LAKE MICHIGAN BASIN WATER QUALITY STANDARDS

 

Section

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28

302.501 Scope, Applicability, and Definitions

302.502 Dissolved Oxygen

302.503 pH

302.504 Chemical Constituents

302.505 Fecal Coliform

302.506 Temperature

302.507 Thermal Standards for Existing Sources on January 1, 1971

302.508 Thermal Standards for Sources under Construction But Not in Operation on

January 1, 1971

302.509 Other Sources

302.510 Incorporations by Reference

302.515 Offensive Conditions

302.520 Regulation and Designation of Bioaccumulative Chemicals of Concern (BCCs)

302.521 Supplemental Antidegradation Provisions for BCCs

302.525 Radioactivity

302.530 Supplemental Mixing Provisions for BCCs

302.535 Ammonia Nitrogen

302.540 Other Toxic Substances

302.545 Data Requirements

302.550 Analytical Testing

302.553 Determining the Lake Michigan Aquatic Toxicity Criteria or Values - General

Procedures

302.555 Determining the Tier I Lake Michigan Basin Acute Aquatic Life Toxicity

Criterion (LMAATC): Independent of Water Chemistry

302.560 Determining the Tier I Lake Michigan Basin Acute Aquatic Life Toxicity

Criterion (LMAATC): Dependent on Water Chemistry

302.563 Determining the Tier II Lake Michigan Basin Acute Aquatic Life Toxicity Value

(LMAATV)

302.565 Determining the Lake Michigan Basin Chronic Aquatic Life Toxicity Criterion

(LMCATC) or the Lake Michigan Basin Chronic Aquatic Life Toxicity Value

(LMCATV)

302.570 Procedures for Deriving Bioaccumulation Factors for the Lake Michigan Basin

302.575 Procedures for Deriving Tier I Water Quality Criteria in the Lake Michigan Basin

to Protect Wildlife

302.580 Procedures for Deriving Water Quality Criteria and Values in the Lake Michigan

Basin to Protect Human Health – General

302.585 Procedures for Determining the Lake Michigan Basin Human Health Threshold

Criterion (LMHHTC) and the Lake Michigan Basin Human Health Threshold

Value (LMHHTV)

302.590 Procedures for Determining the Lake Michigan Basin Human Health

Nonthreshold Criterion (LMHHNC) or the Lake Michigan Basin Human Health

Nonthreshold Value (LMHHNV)

302.595 Listing of Bioaccumulative Chemicals of Concern, Derived Criteria and Values

 

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SUBPART F: PROCEDURES FOR DETERMINING WATER QUALITY CRITERIA

Section

302.601 Scope and Applicability

302.603 Definitions

302.604 Mathematical Abbreviations

302.606 Data Requirements

302.612 Determining the Acute Aquatic Toxicity Criterion for an Individual Substance –

General Procedures

302.615 Determining the Acute Aquatic Toxicity Criterion - Toxicity Independent of

Water Chemistry

302.618 Determining the Acute Aquatic Toxicity Criterion - Toxicity Dependent on Water

Chemistry

302.621 Determining the Acute Aquatic Toxicity Criterion - Procedures for Combinations

of Substances

302.627 Determining the Chronic Aquatic Toxicity Criterion for an Individual Substance -

General Procedures

302.630 Determining the Chronic Aquatic Toxicity Criterion - Procedure for Combination

of Substances

302.633 The Wild and Domestic Animal Protection Criterion

302.642 The Human Threshold Criterion

302.645 Determining the Acceptable Daily Intake

302.648 Determining the Human Threshold Criterion

302.651 The Human Nonthreshold Criterion

302.654 Determining the Risk Associated Intake

302.657 Determining the Human Nonthreshold Criterion

302.658 Stream Flow for Application of Human Nonthreshold Criterion

302.660 Bioconcentration Factor

302.663 Determination of Bioconcentration Factor

302.666 Utilizing the Bioconcentration Factor

302.669 Listing of Derived Criteria

 

APPENDIX A References to Previous Rules

APPENDIX B Sources of Codified Sections

 

AUTHORITY: Implementing Section 13 and authorized by Sections 11(b) and 27 of the

Environmental Protection Act [415 ILCS 5/13 11(b), and 27]

 

SOURCE: Filed with the Secretary of State January 1, 1978; amended at 2 Ill. Reg. 44, p. 151,

effective November 2, 1978; amended at 3 Ill. Reg. 20, p. 95, effective May 17, 1979; amended

at 3 Ill. Reg. 25, p. 190, effective June 21, 1979; codified at 6 Ill. Reg. 7818; amended at 6 Ill.

Reg. 11161, effective September 7, 1982; amended at 6 Ill. Reg. 13750, effective October 26,

1982; amended at 8 Ill. Reg. 1629, effective January 18, 1984; peremptory amendments at 10 Ill.

Reg. 461, effective December 23, 1985; amended at R87-27 at 12 Ill. Reg. 9911, effective May

27, 1988; amended at R85-29 at 12 Ill. Reg. 12082, effective July 11, 1988; amended in R88-1 at

13 Ill. Reg. 5998, effective April 18, 1989; amended in R88-21(A) at 14 Ill. Reg. 2899, effective

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30

February 13, 1990; amended in R88-21(B) at 14 Ill. Reg. 11974, effective July 9, 1990; amended

in R94-1(A) at 20 Ill. Reg. 7682, effective May 24, 1996; amended in R94-1(B) at 21 Ill. Reg.

370, effective December 23, 1996; expedited correction at 21 Ill. Reg. 6273, effective December

23, 1996; amended in R97-25 at 21 Ill. Reg. 1356, effective December 24, 1997; amended in

R01-13 at __________ Ill. Reg. __________, effective __________.

 

Section 302.105 Antidegradation

 

The purpose of this Section is to protect existing uses of all waters of the State of Illinois,

maintain the quality of waters with quality that is better than water quality standards, and prevent

unnecessary deterioration of waters of the State.

 

a) Existing Uses

 

Uses actually attained in the water body or water body segment on or after November 28,

1975,

 

whether or not they are included in the water quality standards, must be maintained

and protected. Examples of degradation of existing uses of the waters of the State

include:

 

1) an action that would result in the deterioration of the existing aquatic

community, such as a shift from a community of predominantly pollutant-

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

 

2) an action that would result in a loss of a resident or indigenous species

whose presence is necessary to sustain commercial or recreational

activities; or

 

3) an action that would preclude continued use of a water body or water body

segment for a public water supply or for recreational or commercial

fishing, swimming, paddling or boating.

b) Outstanding Resource Waters

 

1) Waters that are designated as Outstanding Resource Waters (ORWs)

pursuant to 35 Ill. Adm. Code 303.205 and listed in 35 Ill. Adm. Code

303.206 must not be lowered in quality except as provided below:

 

A) Activities that result in short-term, temporary (i.e., weeks or

months) lowering of water quality in an ORW; or

 

B) Existing site stormwater discharges that comply with applicable

federal and state stormwater management regulations and do not

result in a violation of any water quality standards.

 

2) Any activity in subsections (b)(1)(A) or (b)(1)(B) that requires a National

Pollutant Discharge Elimination System (NPDES) or a Clean Water Act

(CWA) Section 401 certification must also comply with (c)(2).

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31

 

3) Any activity listed in subsection (b)(1) or proposed increase in pollutant

loading must also meet the following requirements:

 

A) All existing uses of the water will be fully protected;

 

B) The proposed increase in pollutant loading is necessary for an

activity that will improve water quality in the ORW; and

 

C) The improvement could not be practicably achieved without the

proposed increase in pollutant loading.

 

4) Any proposed increase in pollutant loading requiring an NPDES permit or

a CWA 401 certification for an ORW must be assessed pursuant to

subsection (f) to determine compliance with this Section.

 

c) High Quality Waters

 

1) Except as otherwise provided in subsection (d) of this Section, waters of

the State whose existing quality is better than any of the established

standards of this Part must be maintained in their present high quality,

unless the lowering of water quality is necessary to accommodate

important economic or social development.

 

2) The Agency must assess any proposed increase in pollutant loading that

necessitates a new, renewed or modified NPDES permit or any activity

requiring a CWA Section 401 certification to determine compliance with

this Section 302.105. In making this assessment, the Agency must:

 

A) Consider the fate and effect of any parameters proposed for an

increased pollutant loading; and

 

B) Assure the following:

 

i) The applicable numeric or narrative water quality standard

will not be exceeded as a result of the proposed activity;

 

ii) All existing uses will be fully protected;

 

iii) All technically and economically reasonable measures to

avoid or minimize the extent of the proposed increase in

pollutant loading have been incorporated into the proposed

activity; and

 

iv) The activity that results in an increased pollutant loading

will benefit the community at large.

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32

 

C) Utilize the following information sources, when available:

 

i) Information, data or reports available to the Agency from

its own sources;

 

ii) Information, data or reports supplied by the applicant;

 

iii) Agency experience with factually similar permitting

scenarios; or

 

iv) Any other valid information available to the Agency.

 

 

d) Activities Not Subject to a Further Antidegradation Assessment

 

The following activities will not be subject to a further antidegradation assessment

pursuant to subsection (c) of this Section.

 

1) Short-term, temporary (i.e., weeks or months) lowering of water quality;

 

2) Bypasses that are not prohibited at 40 C.F.R. 122.41(m);

 

3) Response actions pursuant to the Comprehensive Environmental

Response, Compensation and Liability Act (CERCLA), as amended,

corrective actions pursuant to the Resource Conservation and Recovery

Act (RCRA), as amended or similar federal or State authority, taken to

alleviate a release into the environment of hazardous substances,

pollutants or contaminants which may pose a danger to public health or

welfare;

 

4) Thermal discharges that have been approved through a CWA Section

316(a) demonstration;

 

5) New or increased discharges of a non-contact cooling water, without

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

defined by 35 Ill. Adm. Code 352.104, provided that the discharge

complies with applicable Illinois thermal standards;

 

6) Discharges permitted under a current general NPDES permit as provided

by 415 ILCS 5/39(b)

 

or a general CWA, Section 401 certification are not

subject to facility-specific antidegradation review; however, the Agency

must assure that individual permits or certification are required prior to all

new pollutant loadings or hydrological modifications that necessitate a

new, renewed or modified NPDES permit or CWA, Section 401

certification that affect waters of particular biological significance; or

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33

 

7)

Changes to or inclusion of a new permit limitation that does not result in

an actual increase of a pollutant loading, such as those stemming from

improved monitoring data, new analytical testing methods, new or revised

technology or water quality based effluent limits.

 

e) Lake Michigan Basin

 

Waters in the Lake Michigan basin as identified in 35 Ill. Adm. Code 303.443 are also

subject to the requirements applicable to bioaccumulative chemicals of concern found at

Section 302.521 of this Part.

 

f) Antidegradation Assessments

 

In conducting an antidegradation assessment pursuant to this Section, the Agency must

comply with the following procedures.

 

1) A permit application for any proposed increase in pollutant loading that

necessitates a new, renewed, or modified NPDES permit, with a new or

increased permit limit, or a CWA Section 401 certification, must include,

to the extent necessary for the Agency to determine that the permit

application meets the requirements of Section 302.105, the following

information:

 

A) Identification and characterization of the waters affected by the

proposed load increase or proposed activity and their existing uses.

Characterization must address physical, biological and chemical

conditions of the waters;

 

B) Identification and quantification of the proposed load increases for

the applicable parameters and of the potential impacts of the

proposed activity on the affected waters;

 

C) The purpose and anticipated benefits of the proposed activity. Such

benefits may include:

 

i) Providing a centralized wastewater collection and treatment

system for a previously unsewered community;

 

ii) Expansion to provide service for anticipated residential or

industrial growth consistent with a community’s long range

urban planning;

 

iii) Addition of a new product line or production increase or

modification at an industrial facility; or,

 

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34

iv) An increase or the retention of current employment levels

at a facility.

 

D) Assessments of alternatives to proposed increases in pollutant

loading or activities subject to Agency certification pursuant to

Section 401 of the CWA that result in less of a load increase, no

load increase or minimal environmental degradation. Such

alternatives may include:

 

i) Additional treatment levels including no discharge

alternatives;

 

ii) Discharge of waste to alternate locations including

publicly-owned treatment works and streams with greater

assimilative capacity; or

 

iii) Manufacturing practices that incorporate pollution

prevention techniques.

 

E) Any additional information the Agencv may request.

 

F) Any of the information sources identified in subsection 302.105(d)

(3).

 

2) The Agency must complete an antidegradation demonstration review in

accordance with the provisions of this Section.

 

  

A) The antidegradation assessment pursuant to this Section is a part of

the NPDES permitting process or the CWA Section 401

certification process. However, applicants may initiate

communication with the Agency, preferably during the planning

stage for any load increase. Communication will help assure the

adequacy of information necessary to constitute an antidegradation

demonstration and avoid or minimize delays and requests for

supplemental information during the permitting stage. The

Agency review process must be initiated by:

 

i) an informal or preliminary request of a proponent of a

project prior to filing of a permit application; or

 

ii) receipt of application for an NPDES permit issuance,

renewal or modification, or a CWA Section 401

certification.

 

B) A proponent seeking an immediate review of the results of the

Agency’s review pursuant to subsection (f)(2)(A)(ii) must do so

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35

within the NPDES permit process or the CWA Section 401

certification process.

 

C) After a review pursuant to subsection (f)(2)(A)(i), the Agency must

consult with the proponent and respond:

 

i) in writing to written requests. The written response will

include a statement by the Agency indicating whether the

demonstration, based upon the information provided or

information acquired by the Agency during the review

process, meets the criteria of this Section;

ii) verbally to verbal requests; or

 

iii) in a manner otherwise agreed upon.

 

D) After its review, the Agency must produce a written analysis

addressing the requirements of this Section and provide a decision

yielding one of the following results:

 

i) If the demonstration meets the requirements of this Section,

then the Agency must proceed with public notice of the

NPDES permit or CWA Section 401 certification and

include the written analysis as a part of the fact sheet

accompanying the public notice;

 

ii) If the demonstration does not meet the requirements of this

Section, then the Agency must provide a written analysis to

the applicant and must be available to discuss the

deficiencies that led to the disapproval. The Agency may

suggest methods to remedy the conflicts with the

requirements of this Section;

 

iii) If the demonstration does not meet the requirements of this

Section, but some lowering of water quality is allowable,

then the Agency will contact the applicant with the results

of the review. If the reduced loading increase is acceptable

to the applicant, upon the receipt of an amended

demonstration, the Agency will proceed to public notice; or

if the reduced loading increase is not acceptable to the

applicant, the Agency will transmit its written review to the

applicant in the context of a NPDES permit denial or a

CWA Section 401 certification denial.

 

3) The Agency will conduct public notice and public participation through

the public notice procedures found in 35 Ill. Adm. Code 309.109 or CWA

Section 401 certifications. The Agency must incorporate the following

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36

information into a fact sheet accompanying the public notice:

 

A)

A description of the activity, including identification of water

quality parameters which will experience the increased pollutant

loading;

 

B) Identification of the affected water segment, any downstream

water segment also expected to experience a lowering of water

quality, characterization of the designated and current uses of the

affected segments and identification of which uses are most

sensitive to the proposed load increase;

 

C) A summary of any review comments and recommendations

provided by Illinois Department of Natural Resources, local or

regional planning commissions, zoning boards and any other

entities the Agency consults regarding the proposal;

 

D) An overview of alternatives considered by the applicant and

identification of any provisions or alternatives imposed to lessen

the load increase associated with the proposed activity; and

 

E) The name and telephone number of a contact person at the Agency

who can provide additional information.

 

(Amended at __________ Ill. Reg. __________, effective __________.)

 

 

Section 302.105 Nondegradation

 

Except as otherwise provided in Section 302.520, waters whose existing quality is better than the

established standards at their date of their adoption will be maintained in their present high

quality. Such waters will not be lowered in quality unless and until it is affirmatively

demonstrated that such change will not interfere with or become injurious to any appropriate

beneficial uses made of, or presently possible in, such waters and that such change is justifiable

as a result of necessary economic or social development.

 

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE C: WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

 

PART 303

WATER USE DESIGNATIONS AND SITE SPECIFIC WATER QUALITY

STANDARDS

 

SUBPART A: GENERAL PROVISIONS

 

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37

Section

303.100 Scope and Applicability

303.101 Multiple Designations

303.102 Rulemaking Required

 

SUBPART B: NONSPECIFIC WATER USE DESIGNATIONS

Section

303.200 Scope and Applicability

303.201 General Use Waters

303.202 Public and Food Processing Water Supplies

303.203 Underground Waters

303.204 Secondary Contact and Indigenous Aquatic Life Waters

303.205 Outstanding Resource Waters

303.206 List of Outstanding Resource Waters

 

SUBPART C: SPECIFIC USE DESIGNATIONS AND SITE

SPECIFIC WATER QUALITY STANDARDS

 

Section

303.300 Scope and Applicability

303.301 Organization

303.311 Ohio River Temperature

303.312 Waters Receiving Fluorspar Mine Drainage

303.321 Wabash River Temperature

303.322 Unnamed Tributary of the Vermilion River

303.323 Sugar Creek and Its Unnamed Tributary

303.331 Mississippi River North Temperature

303.341 Mississippi River North Central Temperature

303.351 Mississippi River South Central Temperature

303.352 Unnamed Tributary of Wood River Creek

303.353 Schoenberger Creek; Unnamed Tributary of Cahokia Canal

303.361 Mississippi River South Temperature

303.400 Bankline Disposal Along the Illinois Waterway/River

303.430 Unnamed Tributary to Dutch Creek

303.431 Long Point Slough and Its Unnamed Tributary

303.441 Secondary Contact Waters

303.442 Waters Not Designated for Public Water Supply

303.443 Lake Michigan Basin

303.444 Salt Creek, Higgins Creek, West Branch of the DuPage River, Des Plaines River

 

SUBPART D: THERMAL DISCHARGES

 

Section

303.500 Scope and Applicability

303.502 Lake Sangchris Thermal Discharges

 

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38

APPENDIX A References to Previous Rules

APPENDIX B Sources of Codified Sections

 

AUTHORITY: Implementing Section 13 and authorized by Sections 11(b) and 27 of the

Environmental Protection Act [415 ILCS 5/13, 11(b), and 27].

 

SOURCE: Filed with the Secretary of State January 1, 1978; amended at 2 Ill. Reg. 27, p. 221,

effective July 5, 1978; amended at 3 Ill. Reg. 20, p. 95, effective May 17, 1979; amended at 5 Ill.

Reg. 11592, effective October 19, 1981; codified at 6 Ill. Reg. 7818; amended at 6 Ill. Reg. 11161

effective September 7, 1982; amended at 7 Ill. Reg. 8111, effective June 23, 1983; amended in

R87-27 at 12 Ill. Reg. 9917, effective May 27, 1988; amended in R87-2 at 13 Ill. Reg. 15649,

effective September 22, 1989; amended in R87-36 at 14 Ill. Reg. 9460, effective May 31, 1990;

amended in R86-14 at 14 Ill. Reg. 20724, effective December 18, 1990; amended in R89-14(C) at

16 Ill. Reg. 14684, effective September 10, 1992; amended in R92-17 at 18 Ill. Reg. 2981,

effective February 14, 1994; amended in R91-23 at 18 Ill. Reg. 13457, effective August 19, 1994;

amended in R93-13 at 19 Ill. Reg. 1310, effective January 30, 1995; amended in R95-14 at 20 Ill.

Reg. 3534, effective February 8, 1996; amended in R97-25 at 22 Ill. Reg. 1403, effective

December 24, 1997; amended in R01-13 at __________ Ill. Reg. __________, effective

__________.

 

Section 303.205 Outstanding Resource Waters

 

An Outstanding Resource Water (ORW) is a water body or water body segment that is of

uniquely high biological or recreational quality and must be designated by the Board pursuant to

35 Ill. Adm. Code 102.Subpart H.

 

a) Outstanding Resource Waters (“ORW”) shall be listed in Section 303.206 of this

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

standards contained in this Subtitle, an ORW is subject to the antidegradation

provision of Section 302.105(b).

 

b) A petition to designate a water or water segment as an ORW must be submitted to

the Illinois Pollution Control Board pursuant to the procedural rules found in 35

Ill. Adm. Code 102.Subpart H.

 

(Added at __________ Ill. Reg. __________, effective __________.)

 

Section 303.206 List of Outstanding Resource Waters

 

The Board has not designated any Outstanding Resource Waters pursuant to 35 Ill. Adm. Code

102.Subpart H.

 

(Added at __________ Ill. Reg. __________, effective __________.)

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39

 

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the

above opinion and order was adopted on the 21st day of June 2001 by a vote of 7-0.

 

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

 

 

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40

Appendix A

EXHIBITS FROM NOVEMBER 17, 2000 HEARING:

 

 

No. 1 EPA Region VIII Guidance: Antidegradation Implementation

 

No. 2 Prefiled testimony of Jeffrey S. Swano

 

No. 3 Prefiled testimony of Lenore Beyer-Clow and Jerry Paulson

 

No. 4 Prefiled testimony of Edward L. Michael

 

No. 5 Prefiled testimony of Cynthia L. Skrukrud

 

No. 6 Prefiled testimony of Jack Darrin

 

EXHIBITS FROM DECEMBER 6, 2000 HEARING:

 

 

No. 7 Answers of Agency Questions

 

No. 8 General NPDES Permit No. ILR00

 

No. 9 NPDES Permit No. ILR10

 

No. 10 NPDES Permit No. ILG84

 

No. 11 NPDES Permit No. ILG551

 

No. 12 General Permits List

 

No. 13 Prefiled testimony of Robert J. Moore

 

No.14 Supplemental Prefiled testimony of Robert J. Moore

 

No. 15 Biological Stream Characterization a 1989 IEPA publication

 

No. 16 The Kishwaukee River Basin a 1997 IDNR publication

 

No. 17 Prefiled testimony of Diedre K. Hirner

 

No. 18 Prefiled testimony of Robin L. Garibay

 

No. 19 Prefiled testimony of Gregory D. Cargill

 

No. 20 Wisconsin Administrative Code Chapter NR 102, Water Quality

Standards for Wisconsin Surface Waters

 

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41

No. 21 Indiana Environmental, Health and Safety Regulations Section 327 IAC 2-

1.5-4 Antidegradation Standard

 

No. 22 West Virginia Environmental, Health and Safety Regulations Section 46-

1-4 Antidegradation Standard

 

No. 23 Pennsylvania Environmental, Health and Safety Regulations Section 93.4a

Antidegradation Standard

 

EXHIBITS FROM FEBRUARY 6, 2001 HEARING:

 

 

No. 24 Prefiled testimony of Deirdre K. Hirner

 

No. 25 Prefiled testimony of Jeffrey P. Smith

 

No. 26 Prefiled testimony of Fredric P. Andes

 

No. 27 Prefiled testimony of Bill Compton

 

No. 28 Federal Register dated Tuesday July 7, 1998, Water Quality Standards

Regulation Proposed Rule

 

No. 29 EPA Water Quality Guidance for the Great Lakes System: Supplementary

Information Document March 1995

 

No. 30 Memorandum of Law and Supplemental Testimony of the Environmental

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

and Sierra Club

 

No. 31 Answers to Prefiled Questions for the Environmental Groups

 

No. 32 Prefiled testimony of David L. Thomas, Chief, Illinois Natural History

Survey, Illinois Department of Natural Resources