BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

REVISIONS TO ANTIDEGRADATION

RULES:

35

ILL. ADM. CODE 302.105,

303.205,

303.206, AND 106.990

—

106.995

)

NOTICE OF FILING

TO:

Ms. Dorothy M. Gunn

Clerk ofthe Board

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

(VIA

AIRBORNE EXPRESS)

Marie E. Tipsord, Esq.

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

(VIA

AIRBORNE EXPRESS)

(PERSONS ON

ATTACHED SERVICE LIST)

PLEASE TAKE NOTICE that I have filed today with the Clerk of the Illinois

Pollution Control Board an original and nine copies of PRE-FILED TESTIMONY

OF

DEIRDRE K. HIRNER, PRE-FILED TESTIMONY OF JEFFREY P. SMITH,

PRE-FILED TESTIMONY OF FREDERIC P. ANDES,

and

PRE-FILED

TESTIMONY OF BILL COMPTON,

copies ofwhich are herewith served upon you.

Dated: January 18, 2001

Respectfully submitted,

ILLINOIS ENVIRONMENTAL

REGULATORY GROUP,

By:

One ofIts Attorneys

Katherine D. Hodge

HODGE & DWYER

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

Karen L. Bernoteit

Illinois Environmental Regulatory Group

215 East Adams Street

Springfield, Illinois 62701

(217) 522-5512

)

)

)

)

RO 1-13

(Rulemaking)

THIS FILING SUBMITFED ON RECYCLED PAPER

---

CERTIFICATE OF SERVICE

I, Katherine D. Hodge, the undersigned, certify that I have served a copy of the

attached PRE-FILED TESTIMONY OF DEIRDRE K. HIRNER, PRE-FILED

TESTIMONY OF JEFFREY P. SMITH, PRE-FILED TESTIMONY OF FREDRIC P.

ANDES, and PRE-FILED TESTIMONY OF BILL COMPTON upon:

Ms. Dorothy M. Gunn

Clerk ofthe Board

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

Marie E. Tipsord, Esq.

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

by overnight delivery by depositing said documents in an Airborne Express drop box in

Springfield, Illinois, on January 18, 2001, and upon:

SEE ATTACHED SERVICE LIST

by depositing said documents in the United States Mail in Springfield, Illinois on

January 18, 2000.

~ Katherine D. Hodg

IERG:OO1/R Dockets!FiL’RO1-13 COS

—

Testimony

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SERVICE LIST

Ms. Kay Anderson

American Bottoms RWTF

One American Bottoms Road

Sauget, Illinois 62201

Frederic P. Andes, Esq.

Barnes & Thornburg

2600 Chase Plaza

10 South LaSalle Street

Chicago, Illinois 60603

Ms. Christine Bianco

Director ofRegulatory Affairs

Chemical Industry Council ofIllinois

9801 West Higgins Road

Suite 515

Rosemont, Illinois 60018

Christine S. Bucko, Esq.

Assistant Attorney General

Illinois Attorney General’s Office

Environmental Bureau

188 West Randolph Street

20th Floor

Chicago, Illinois 60601

Mr. Jack Darn

Sierra Club, Illinois Chapter

200 North Michigan Avenue

Suite 505

Chicago, Illinois 60601

Mr. Albert F. Ettinger

Environmental Law & Policy Center

35 East Wacker Drive

Suite 1300

Chicago, Illinois 60601-2110

Susan M. Franzetti, Esq.

Sonnenschein Nath & Rosenthal

8000 Sears Tower

233 South Wacker Drive

Chicago, Illinois 60606

James T. Harrington, Esq.

Ross & Hardies

150 North Michigan Avenue

Suite 2500

Chicago, Illinois 60601

John M. Heyde, Esq.

Sidley & Austin

Bank One Plaza

10 South Dearborn Street

Chicago, Illinois 60603

Richard J. Kissel, Esq.

Gardner, Carton & Douglas

Quaker Tower

321 North Clark Street

Suite 3400

Chicago, Illinois 60610-4795

Sharon Marie Neal, Esq.

Law Department

CornEd

-

Unicorn

125 South Clark Street

Chicago, Illinois 60603

Mr. Jeny Paulson

McHenry County Defenders

804 Reginact

Woodstock, Illinois 60098

Mr. Irwin Polls

Metropolitan Water Reclamation District

Environmental Monitoring

6001 West Pershing Road

Cicero, Illinois 60804-4112

Ms. Cindy Skrudkrud

4209 West Solon Road

Richmond, Illinois 60071

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Connie Tonsor, Esq.

Assistant Counsel

Division ofLegal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

Post Office Box 19276

Springfield, Illinois 62794-9276

Ms. Georgia Vlahos

Department ofthe Navy

Naval Training Center

260lA Paul Jones Street

Great Lakes, Illinois 60088-2845

Charles W. Wesselhoft, Esq.

Ross & Hardies

150 North Michigan Avenue

Suite 2500

Chicago, Illinois 60601

Mr. Stanley Yonkauski

Illinois Department ofNatural Resources

524 South Second Street

Springfield, Illinois 62701

IERG:OO 1/Fil/RO1-1 3/Service List

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

)

)

REVISIONS TO ANTIDEGRADATION

)

R01-13

RULES: 35 ILL. ADM. CODE 302.105,

)

(Rulemaking)

303

.205,

303 .206, AND 106.990

—

106.995

)

PRE-FILED TESTIMONY OF DEIRDRE K. HIRNER

NOW COMES the ILLINOIS ENVIRONMENTAL REGULATORY GROUP

(“IERG”), by one of its attorneys, Katherine D. Hodge ofHODGE & DWYER, and

submits the following Pre-Filed Testimony ofDeirdre K. Hirner for presentation at the

February 6, 2001 hearing scheduled in the above-referenced matter:

Testimony of Deirdre K. Hirner

Good Morning. My name is Deirdre K. Hirner, and I am the Executive Director

of the Illinois Environmental Regulatory Group (“IERG”). I hold a Ph.D. in Land Use

Planning from Texas Tech University, have served in the Office ofGovernor of the State

of Missouri as Chief Public Policy Advisor, and was, for six years, the Director of

Missouri’s largest conservation group, the 35,000-member Conservation Federation,

which focused on building broad-based support for a balanced approach to environmental

protection measures.

On behalf ofIERG and its member companies, I want to thank the Illinois

Pollution Control Board (“Board”) for the opportunity to present this testimony today.

As some ofyou may know, IERG requested that the Board schedule this third hearing for

the purpose of allowing additional testimony in response to the proposal ofthe Illinois

Environmental Protection Agency (“Illinois EPA” or “Agency”). IERG appreciates the

fact that the Board granted this request and is holding this hearing today. IERG believes

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that this hearing will provide the Board valuable information that will allow the Board to

more completely consider the Agency’s proposal and promulgate a fairer and more

effective final rule.

My testimony today is offered to present IERG’s proposed revisions to the

Agency’s proposal and to provide more detailed testimony on IERG’s areas ofconcern

with that proposal and in support of IERG’s proposed revisions. In conjunction with my

testimony today, representatives of two of IERG’s member companies, and attorney Fred

Andes of the law firm of Barnes & Thornburg, will present testimony in support of

IERG’s proposed revisions.

Background

As I noted in my testimony on behalfofIERG at the December 6, 2000, hearing

in this matter, IERG has several general areas of concern regarding the Agency’s

proposal. Again, those areas ofconcern are as follows:

1.

the Agency’s proposal does not contain a significance test to

determine the need for a comprehensive antidegradation review;

2.

the Agency’s proposal does not contain needed exceptions to the

individual demonstration pursuant to the proposed Board standard;

3.

the Agency’s proposal requires extensive up-front data

submissions from an applicant for an NPDES permit or Section 401 certification

which may not be necessary;

4.

the Agency’s proposal does not contain sufficient requirements for

ORW designations; and

2

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5.

the Agency’s proposal lacks clarity as it relates to definitions of

some ofthe provisions and terms proposed.

In preparation for this hearing, IERG has filed proposed revisions to the Agency’s

proposal that address IERG’s concerns. See Exhibit A to my pre-filed testimony, which

contains IERG’s Proposed Revisions to the Agency’s Proposal for Part 302 and Exhibit

B, which contains IERG’s Proposed Revisions to the Agency’s Proposal for Part 303. I

would like to take this opportunity to briefly explain IERG’s proposed revisions and to

demonstrate how those revisions would result in a clearer, more workable set of

regulations that would still accomplish the goal ofantidegradation.

Significance Determination

As noted in my December 6, 2000 testimony, the business community believes

that antidegradation procedures should be applied in a tiered fashion similar to that

practice suggested in USEPA’s Region VIII Guidance: “Antidegradation

Implementation,” dated August 1993. The first step in this process should be a

determination ofwhether a proposed action is ofsuch significance that a formal

antidegradation review is necessary. Ifnot, a finding ofinsignificance should, in and of

itself, constitute an appropriate antidegradation review. IERG firmly believes that some

increased loadings warrant an insignificance determination because they are, by their

nature, ofsuch limited significance that they do not require a comprehensive

antidegradation assessment.

Accordingly, IERG has proposed a revision to the Agency’s proposed Section

302.l05(c)(2) that would provide for such a tiered approach. IERG’s proposed revision

would allow applicants for certain new, renewed, or modified NPDES permits or CWA

3

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Section 401 certifications to ask the Agency, as part of its application, to determine

whether the proposed increase in pollutant loading or other activity or discharge will have

a significant impact on the overall water quality or existing uses ofthe receiving water.

Any applicant seeking such a determination would be required to provide the Agency

necessary information relating to the nature of the proposed discharge and the quality and

characteristics ofthe receiving water to assist the Agency in making the determination.

If the Agency determined that the proposed increase in pollutant loading or

activity or discharge would nQI have a significant impact on the overall water quality or

existing uses ofthe receiving water, no further review would be required. Ifthe Agency

determined that the proposed increase in pollutant loading or activity or discharge would

have a significant impact on the overall water quality or existing uses ofthe receiving

water, the Agency would conduct a further review ofthe application. This further review

would assure that (1) the applicable numeric or narrative water quality standard will not

be exceeded as a result ofthe proposed activity; (2) all existing uses ofthe receiving

water will be fully protected; (3) all technically and economically reasonable measures to

avoid or minimize the extent ofthe proposed increase in pollutant loading have been

incorporated into the proposed activity; and, (4) the proposed activity will benefit the

community at large. Details ofthe Agency’s significance determination would be

included in the permit fact sheet, a component ofthe Agency’s proposed implementation

procedures.

Incorporating this tiered approach into the antidegradation review procedure is

consistent with the exceptions from antidegradation review contained in the Agency’s

proposed Section 302.105(d). The fact that the Agency has included such exceptions in

4

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that provision recognizes that some effects on water quality are truly insignificant and

should not be subjected to a comprehensive antidegradation review. IERG’s proposed

inclusion ofa tiered approach to antidegradation review expands on this concept by

providing for only a limited review of those proposed discharges that are not excepted

from review under proposed Section 302.105(d) but are still “insignificant.” This will

allow proponents ofproposed discharges and the Agency to protect water quality by

focusing their time and resources on those increased loadings that truly are “significant.”

Limited Exceptions

The Agency has recognized the need for exceptions to the requirement for a

comprehensive antidegradation assessment by including six such exceptions in proposed

Section 302.105(d). IERG applauds the Agency’s recognition ofthe need for exceptions

to a comprehensive antidegradation review. As stated in my December 6, 2000

testimony, the absence of such exceptions would bog the Agency down in an endless

review ofpermits that have virtually no environmental impact.

IERG has proposed that additional, similar exceptions be included in proposed

Section 302.105(d). Many of these proposed exceptions have been implemented by other

Region V states. Mr. Fred Andes of the law firm ofBarnes & Thornburg will present

testimony regarding the experience of these other states with these exceptions and in

support ofthe inclusion ofthese exceptions in Illinois’ regulations.

As Mr. Andes testimony will demonstrate, like the exceptions proposed by the

Agency, none ofthe exceptions proposed by IERG would pose any threat to the quality

ofwater in Illinois. Rather, they would only allow for activities that (1) are already in

compliance with other applicable laws to go forward without subjecting the persons

5

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conducting those activities to the time and expense ofanother review of information that

either the state or federal government has already reviewed, and/or (2) result in an

improvement to water quality.

IERG has also proposed an exception for increases in pollutant loading that would

result in a de minimis lowering of water quality. By the term “de minimis,” IERG means

that the proposed increase in mass discharge is less than ten percent (10) ofthe unused

loading capacity of the receiving water.

Several other states in USEPA’s Region V have found such a de minimis

approach to be workable and protective ofwater quality. Further, the Agency indicated

at the November 17, 2000 hearing in this matter that it was not opposed to the concept of

a de minimis exception to the requirement ofa comprehensive antidegradation review.

Mr. Andes will provide further testimony in support of this de minimis exception.

Up-Front Data Submissions

As noted in my previous testimony, while IERG agrees that the Agency must

have the information that it needs to conduct an antidegradation review, IERG believes

that the language proposed by the Agency places an undue burden upon an applicant for

an NPDES permit or a Section 401 certification to provide volumes of information that

may be unnecessary for the Agency to thoroughly conduct its review. Accordingly,

IERG has proposed revisions to proposed Section 302.105 that would require applicants

to file only information that is necessary for the Agency’s review. The Agency would, of

course, be able to request any further information that it required.

This proposed revision gives the Agency the ability to exercise discretion as to

what information applicants must submit and lessens the burden on applicants by

6

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relieving them of the obligation to file information that would not be helpful to the

Agency. Further, this proposed revision is consistent with the testimony of Agency

witness Toby Frevert at the November 17, 2000, hearing in this matter, where Mr. Frevert

stated that there are many instances in which some ofthe data submissions required by

the Agency’s proposed rule would not be needed by the Agency to conduct its

antidegradation review.

S~

November 17, 2000, Transcript at pp. 78 to 80.

IERG has also proposed a revision at subsection 302.

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

that would

allow the Agency to rely on its own data sources when conducting an antidegradation

review, such as data or reports in the Agency’s possession and Agency experience with

factually similar permitting scenarios. This data will be invaluable to the Agency when

conducting an antidegradation review, and this regulation should explicitly provide that

the Agency is authorized to consider such data when conducting such a review. Further,

IERG’s proposed revision is consistent with the testimony of Mr. Frevert at the

November 17, 2000, hearing in this matter indicating that the Agency intends to consider

any information at its disposal when conducting an antidegredation review, regardless of

where that information came from. ~ November 17, 2000, Transcript at pp. 61 to 63.

ORW Designations

As the Agency recognized at the November 17, 2000, hearing in this matter, the

designation ofa water body as an ORW has the potential for profound economic impact,

environmental restriction and broad ramifications for surrounding property owners,

particularly in terms of land use options. ~ November 17, 2000, Transcript at pp. 88 to

89. The implication of designating a stream segment as an ORW is well beyond

protecting biological and recreational values of unique waters; it is land use regulation.

7

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Accordingly, IERG has proposed revisions to clarify the process by which an ORW

designation would occur.

First, IERG has proposed a revision to proposed Section 303.205 to clarify that

the process by which a person may petition the Board for designation of a water body as

an ORW is the adjusted standard procedure contained in Section 28.1 ofthe Act (415

ILCS 5/28.1) and Subpart D of Part 104 of Title 35 ofthe Illinois Administrative Code.

(35 Ill. Admin. Code Part 104.Subpart D) IERG proposes this clarification because of

the analogy between ORWs and Class III Groundwater, the designation of which takes

place through the adjusted standard procedure. Further, clarifying that a person seeking

to designate a water body as an ORW must follow the adjusted standard procedure

provides a clearer framework for those seeking such designation, and those who would be

affected by such designation, than the Agency’s current proposal.

Second, IERG has proposed further revisions to proposed Section 303.205 to

clarify that the burden of proofin a proceeding to designate a water body as an ORW is

on the person seeking such a designation, and to clarify what information a person

seeking an ORW designation must submit in support ofthat designation. Again, the

designation of a water body as an ORW has the potential for profound economic impact

and environmental restriction. Due process mandates that a person seeking to create such

an impact has the burden of establishing that such impact is justified, and further

mandates that property owners’ rights not be taken away from them without a

consideration ofall relevant information. Mr. Bill Compton will provide further

testimony in support ofIERG’s proposed revisions to Part 303.

8

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Clarity

Finally, as noted in my December 6, 2000, testimony, IERG has identified several

primary areas ofconcern that it feels require clarification in the proposed rule. IERG has

proposed revisions to the rule to effect the necessary clarification. Most significantly,

IERG has proposed a revision in proposed Section 302.105(c)(2) to clarify that the

minimum threshold to trigger an antidegradation review is “an 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). Specifically, IERG has

proposed a revision to proposed Section 302.105 to make clear that the requirements for

an antidegradation review do not apply to all loadings “subject” to an NPDES permit, but

only to any permit application for a new, renewed or modified NPDES permit that

requires a new or increased limit. This proposed revision is consistent with the testimony

of Mr. Frevert at the November 17, 2000, hearing in this matter that the Agency’s

proposed rule would not apply “were there is no proposed increase in any pollutant

parameter activity.” November 17, 2000, Transcript at p. 45, 11. 1-2.

Also, IERG believes that revisions to the Agency’s Part 354 are necessary. IERG

ofcourse understands that Part 354 is not before the Board in this proceeding. But, the

Agency has submitted its proposed Part 354 to the Board in this proceeding, and this

provision is relevant to this proceeding, as it demonstrates the Agency’s intended

approach for implementing proposed Sections 302A05 and 303.205. While we intend to

provide our proposed revisions to Part 354 to the Agency, we believe the most significant

revision to Part 354 should be to provide that a permit applicant for a new, renewed or

modified NPDES permit must only submit that information that is necessary for the

9

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Agency to determine whether any increase in pollutant loading or other proposed activity

would result in degradation of the receiving water. IERG intends to request that Section

354.103 be revised to provide that the Agency may request additional information from

an applicant to assist the Agency in its antidegradation review, as well.

Additionally, IERG has proposed further revisions to the Agency’s proposal for

Parts 302 and 303 to clarify our understanding of the Agency’s intent, based on the

testimony offered at the prior hearings.

Conclusion

As noted above, in addition to my testimony, representatives oftwo IERG

member companies, and attorney Fred Andes, are presenting testimony today in support

of IERG’s proposed revisions to the Agency’s proposal. Specifically,

Mr. Jeffrey Smith, ofAbbott Laboratories, located in North Chicago, Illinois,

will present testimony regarding the general requirement proposed by the

Agency that the burden for providing all information necessary for the

Agency to conduct an antidegradation assessment be placed entirely on the

permittee when, in fact, some or all ofthe required information may already

reside within the Agency, and in support ofIERG’s proposal to include

additional categories ofactivities as exceptions in proposed Section

302. 105(d).

•

Mr. Fred Andes, ofthe law firm of Barnes & Thornburg, will also present

testimony in support of IERG’s proposed process for significance

determination and additional exceptions from further antidegradation review,

10

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and will present testimony regarding the experience ofother states located in

USEPA’s Region V with such exceptions; and,

• Mr. Bill Compton, of Caterpillar Inc., located in Peoria, Illinois, will offer

testimony in support of reviewing petitions to designate ORWs through the

adjusted standard process already provided for in the Board’s rules.

IERG urges the Board to consider these persons’ testimony as well as IERG’s

proposed revisions to the Agency’s proposal and my testimony here today.

Thank you for the opportunity to testify today; I would be pleased to answer any

questions the Board may have at this time.

* **

IERG reserves the right to supplement ormodify this pre-filed testimony.

Respectfully submitted,

By:

~C~L

Kathenne D. Hodge

Dated: January 18, 2001

Katherine D. Hodge

HODGE & DWYER

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

IERG:OO1/R Dockets/FiIIRO1-13/Pre-fi!ed Testimony of D. K. Hirner 1.18.01

11

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IERG’S PROPOSED REVISIONS TO THE AGENCY’S PROPOSAL FOR PART 302

TITLE

35:

WATER QUALITY STANDARDS

Section 302.105 Antidegradation

The purpose ofthis Section is to maintain high quality waters and to preventunnecessary

deterioration of waters ofthe State.

a)

Existing Uses

Uses actually attained in the surface water body or surface 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 ofdegradation of

existing uses ofthe waters ofthe State include but are not limited to:

1)

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

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

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

e~and

2)

an action that would result in a loss ofa resident or indigenous species-

whose presence is necessary to sustain commercial or recreational

activities.

b)

Outstanding Resource Waters

1)

Waters that arc classified designated as ~ Outstanding Resource Waters

(ORW~)pursuant to and listed in 35 Ill. Adm. Code 303 .20~must not be

lowered in quality cxcept as providcd bclow:. provided, however, that the

follow activities and discharges may be allowed if the Agency determines

that the requirements for High Quality Waters. set forth in subsection (c)

ofthis Section. have been met. and that all existing uses of the ORW water

will be fully protected:

A)

An activity Activities that results in short-term, temporary (i.e.,

weeks or months) lowering of water quality in an ORW e~

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B)

Existing site stormwater discharges into an ORW that comply with

applicable federal and state storm watcr stormwater management

regulations and th~Ido not result in a violation ofany water quality

standards; and

C)

Activities that result in an increase in pollutant loading into an

ORW that necessitates the issuance of a new, renewed, or modified

Thc proponent of any activity requiring a National Pollutant

Discharge Elimination System (NPDES) permit. with a new or

increased permit limit, or a Clean Water Act (CWA) Section 401

certification, is required. provided that the proposed increase in

pollutant loading is necessary for an activity that will improve

water quality in the ORW and that such water quality improvement

could not be practicably achieved without the proposed increase in

pollutant loading, must also submit a demonstration to thc Agcncy

meeting thc rcquircmcnts of subsections b(2) and c(2) of this

Section.

—J

i

He activities referenced in subsection (b)(1) or proposed

pollutant loading

A)

All existing uses of the ORW water will be fully protected;

B)

in~~~.~4f1-r

~

loading is

~

for an

activity that will improve water quality in the ORW; and

C)

The improvement

practicably achieved without the

i~rnr”~~

increase in pollutant loading.

3)

Any proposed increase in pollutant loading requiring an NPDES permit or

a CWA 401 certification for an ORW must be assessed nursuant to 35 Ill.

Adm. Code Part 354 to determine ~nmn1innr’

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 exceeds established standards ofthis Part

must be maintained in their present high quality, unless the Agency

determines, the proponent can demonstrate pursuantto subsection (c)(2) of

this Section, that allowing the lowering ofwater quality~is necessary to

accommodate important economic or social development.

2)

Any proposed increase in pollutant loading that necessitates a new.

renewed, or modified subject to a NPDES permit, with a new or increased

-

permit limit, or ~ CWA Section 401 eertification~must be assessed by the

Agency pursuant to 35 Ill. Adm. Code Part 354 to determine compliance

~f

tnn~

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with this Section. whether allowing the lowering ofwater quality is

necessary to accommodate important economic or social development.

A)

In making its assessment, the Agency shall determine, upon a

request by an applicant pursuant to subsection (e)(2)(A)(i) ofthis

Section. and in accordance with subsections (c)(2)(A)(i) through

(vi) ofthis Section. whether the proposed increase in pollutant

loading will have a significant impact upon the overall water

quality, or the existing uses, of the receiving water. Ifthe Agency

determines that the proposed increase in pollutant loading will not

have a significant impact upon the overall water quality or the

existing uses of the receiving water, such increase in pollutant

loading shall be deemed to comply with the provisions of

subsection (c)(2)(B) ofthis Section.

i)

Any applicant for a new. renewed, or modified NPDES

permit or CWA Section 401 certification may file with the

Agency. as part ofits application, a request for a

determination that the proposed increase in pollutant

loading (or other activity or discharge) will not have a

significant impact upon the overall water quality, or the

existing uses, ofthe receiving water.

ii)

Such request shall set forth. as necessary, information on

the proposed increase in pollutant loading, the nature of the

discharge in general. including timing. location and

physical characteristics. and may also include any other

information which may assist the Agency in making its

determination.

iii)

In making its significance determination, the Agency may

consider:

a)

the volume. constituents. and concentrations of

parameters in the proposed increase in pollutant

loading:

b)

the nature ofthe proposed increase in pollutant

loading, including location of the discharge. and

timing and physical characteristics ofthe discharge:

and

c)

the nature and condition ofthe receiving water.

including existing water quality characteristics, the

chemical and physical characteristics ofthe water

3

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and of the water body, and any relevant biological.

chemical, or physical characteristics ofthe water

which will affect the impact ofthe 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 ofthe proposed activity and

whether all existing uses will be fully protected.

iv)

In making its significance determination, the Agency may

utilize the information sources set forth in subsection

(e)(2)(B)(iii) of this Section.

vi)

The Agency shall make significance determinations in

accordance with its antidegradation implementation

procedures.

vi)

Ifthe Agency determines that the proposed increase in

pollutant loading is significant. it shall so inform the

applicant, in which ease, the applicant then may comply

with the provisions of subsection (e)(2)(B) of this Section

or may appeal the Agency’s determination to the Board in

accordance with 35 Ill. Adm. Code 105.Subpart B.

B)

Ifthe Agency determines that the proposed increase in pollutant

loading will have a significant impact upon the overall water

quality or the existing uses ofthe receiving water, such proposed

increase in pollutant loading shall be assessed by the Agency in

accordance with its antidegradation implementation procedures. In

making its assessment:

The Agency shall consider the fate and effect of any

parameters proposed for an increased pollutant loading~

i

tie nrnnnn~nt of an increased pollutant loading shall

demonstrate the following: The Agency shall determine

whether:

a)

The applicable numeric or narrative water quality

standard must

~ffl

not be exceeded as a result ofthe

proposed activity;

b)

All existing uses must

~ifl

be fully protected;

4

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c)

All technically and economically reasonable

measures to avoid or minimize the extent of the

proposed increase in pollutant loading load increase

have been incorporated into the proposed activity;

and

d)

The activity that results in ~ ih~

increase4 In

pollutant loading

mt~st

~fflbenefit the community

at large.

iii)

In making its assessment. the Agency may utilize the

following information sources:

a)

Information, data or reports available to the Agency

from its own sources:

b)

Information, data or reports supplied by the

applicant:

c)

Agency experience with factually similar permitting

scenarios: and/or

d)

Any other valid information available to the

Agency.

d)

Activities Not Subject to a Further Antidegradation Demonstration Assessment

The following activities shall be deemed to comply with the provisions ofthis

Section and shall not be subject to ai~a further antidegradation demonstration

assessment pursuant to subsection (c) ofthis Section.

1)

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

2)

Bypasses that are not prohibited at 40 CFR 122.4 1(m);

3)

Response actions pursuant to the Comprehensive Environmental

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

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 ofhazardous substances,

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

welfare;

4)

Thermal diseharge~that has 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. and that the Agency

has approved the use ofany additives present in specific discharge:

Discharges permitted under a current general NPDES permit as provided

by 415 ILCS

5/39(b),

are not subject to facility specific antidegradation

review. ~

7)

Changes to or inclusion ofa 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 orrevised

technology or water quality based effluent limits (WQBELs):

8)

Site stormwater discharges covered by a Stormwater Pollution Prevention

Plan. as required in an individual NPDES permit. provided that the

discharge will not cause or contribute to a violation of Illinois water

quality standards:

9)

New or increased discharges ofa pollutant where the permit applicant has

made a contemporaneous and enforceable decrease in the actual loading of

that pollutant at the source such that there is no net increase in the loading

ofthat pollutant into the same surface water body or surface water body

segment:

10)

Discharges authorized by a site-specific regulation. adjusted standard. or

variance issued by the Board:

11)

Discharges authorized by a Consent Order or Consent Decree entered by a

court ofcompetentjurisdiction:

12)

An increase in pollutant loading that ~‘i~1fc

1,.__.._..~___.

in

~

~ 1c~w~rinonfw~f~rnirnlifv

•1~~~~”.’

that is less than a de minimis lowering of water quality. As used in this

provision, a “de minimis lowering of water quality” occurs if all ofthe

following are satisfied for the constituent under consideration and such a

determination is consistent with any other applicable requirements and

limitations in this Part:

A)

The proposed increase in mass discharged is less than ten percent

(10) ofthe unused loading capacity. The proposed increase in

mass discharged shall be determined as follows:

Mo~MF=

Pronosed increase in mass discharued

6

---

Where M~

Monthly averaae mass effluent limitation for the parameter in the

proposed discharge.

Monthly average mass effluent limitation for the parameter in the existing

permit. If the existing permit does not contain a monthly average mass

effluent limitation for the parameter. but does contain a weekly average or

daily maximum mass limit, the existing weekly average or daily

maximum permit limit shall be converted into a monthly average value to

be used in this equation. Ifthe existing permit does not contain a mass

limit for the parameter. but does contain a concentration limit, this

concentration limit shall be converted into a mass value, using the

discharge flow rate, to be used in this equation. Ifthe existing permit does

not contain an effluent limit for the parameter. the actual monthly average

mass discharged shall be used in this equation.

B)

For the purposes ofthis subsection. “Total loading capacity”

means the product ofthe applicable water quality criterion times

the sum of the existing effluent flow and the stream design flow for

the water body in the area where the water quality is proposed to

be lowered, expressed as a mass loading rate: and “Unused loading

capacity” means that amount ofthe total loading capacity not

utilized by point source and nonpoint source discharges. The

unused loading capacity is established at the time the request to

lower water quality is considered.

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 bioaceumulative chemicals of

concern found at Section 302.521 ofthis Part.

IERG:001/R Dockets/FiVRO1- 13/Part 302 1.18.01

7

---

IERG’S PROPOSED REVISIONS TO THE AGENCY’S PROPOSAL FOR PART 303

TITLE

35:

STANDARDS

Section 303.205

Outstanding Resource Waters

An Outstanding Resource Water (ORW) is a surface water body or surface water

body segment that is of uniquely high biological or recreational quality~..and shall be

designated by the Board pursuant to 35 Ill. Adm. Code 106, Subpart L. The Board shall

make ORW designations in accordance with the procedures for adjusted standards in

Section 28.1 ofthe Act and 35 Ill. Adm. Code 104.Subpart D. and the procedures set

forth below:

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 106, Subpart L. Any person may petition the Board to designate

an ORW. In any such proceeding to designate an ORW. in addition to the

requirements of Section 28.1 ofthe Act and 35 Ill. Adm. Code 104.Subpart D. the

petition shall contain, at a minimum, the following information:

1)

The identity ofthe surface -water body or surface water body segment for

which the ORW designation is requested:

2)

A detailed description ofthe specific surface water body or surface water

body segment for which the ORW designation is requested. and that

surface waterbody’s or surface water body segment’s oresent designation:

A detailed description of the area in which the specific

surface water bMv

or surface water body segment exists including, but not

limited to:

A)

the existence of wetlands or natural areas:

the life contained within th2t ~re~i including endangered or

threatened species ofplants. 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:

3)

B)

---

4)

Documentation in support ofthe proposed ORW designation including.

but not limited to, documentation relating to the health, environmental.

recreational, aesthetic or economic benefits ofthe proposed ORW

designation:

5)

A statement identifying and detailing the anticipated impact of the ORW

designation on economic and social development. This statement must be

supported by current, verifiable information, and must address at least the

following issues:

A)

impacts on the regional economy:

B)

impacts on regional employment:

C)

impacts on the community: and

D)

a comparison of the health and environmental impacts of the

proposed ORW designation to the economic impact ofthe

proposed ORW designation:

A dpf~,i1pd

d~rintinn

ofthe existing and anticipated uses ofthe speciE”

surface water body or surface waterbody segment for which the ORW

designation is requested:

-

7)

A detailed description ofthe existing and anticipated quality ofthe

specific surface water body or surface water body segment warranting-the

ORW designation:

8)

A synopsis ofall testimony to be presented by the proponent at hearing:

9)

Copies ofany material to be incorporated by reference within the

proposed designation pursuant to Section 5-75 ofthe Illinois

Administrative Procedure Act

(5

ILCS 100/5-75):

10)

Unless the proponent is the Agency or the Illinois Department of Natural

Resources (IDNR). or the proponent receives a waiver from the Board, a

petition in support of the request for ORW designation signed by at least

200 persons:

Proof that the proponent h2s comnlied with the notice recrnirements of 35

-

Ill. Adm. Code 104.408: and.

12)

Proof that the proponent served copies ofthe petition upon the Agency.

the IDNR. the Illinois Attorney General, the States Attorney ofeach

county in which the surface water body or surface water body segment

6)

11)

---

runs, the chairman of the County Board of each county in which the

surface water body or surface water body segment runs, each member of

the General Assembly from the legislative district in which the surface

water body or surface water body segment runs, current NPDES

permittees and NPDES permit applicants for discharges into the surface

water body or surface water body segment. applicants for federally

permitted activities that require a certification from the Agency pursuant

to Section 401 ofthe Clean Water Act for the surface water body or

surface water body segment. all owners ofreal property which is located

adjacent or contiguous to the surface water body or surface water body

segment. and to other persons as required by law.

44-k) Where a proponent of an ORW designation concludes that any information

required by subsection (a) ofthis Section is inapplicable or unavailable, the

proponent must provide a complete justification for such inapplicability or

unavailability.

e)

When considering a petition for ORW designation. the Board shall consider all

information submitted by the proponent ofthat designation pursuant to

Subsections (a) and (b) ofthis Section and all information submitted by any party

in response to the submission(s) ofthe proponent.

d)

The Board may only designate a surface water body or surface water body

segment as an ORW when the Board determines, after consideration of all of

information and argument submitted by all parties to the proceeding. that the

proponent ofthe ORW designation has demonstrated that the benefits of

protection ofthe surface water body or surface water body segment from future

degradation substantially outweigh the benefits ofeconomic or social

opportunities that will be lost as a result of the designation.

a~) ORWs shall be listed in Section 303.206 ofthis Part. In addition to all other

applicable use designations and water quality standards contained in this Subtitle,

an ORW is subject to the antidegradation provisions of Section 302.1OSQ$.

W)

Stream segments that have a 7QlO low flow of zero will generally

~ffl

not be

considered a candidate for this ORW designation.

g)

For purposes ofthis Part, the term “Surface Water Body” means a natural body of

water on the ground surface including, but not limited to, lakes, ponds. reservoirs,

retention ponds. rivers, streams, creeks and drainage ditches. “Surface Water

Body” does not include puddles or other accumulations ofprecipitation. run-offor

groundwater.

Section 303.206

List of Outstanding Resource Waters (Reserved)

IERG:00 1/R Dockets/FiLTRO 1-1

3’Part

303 1.18.01

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

)

)

REVISIONS TO

ANTIDEGRADATION )

R0l-13

RULES: 35 ILL. ADM. CODE 302.105,

)

(Rulemaking)

303 .205, 303 .206, AND 106.990

—

106.995 )

PRE-FILED TESTIMONY OF JEFFREY P. SMITH

NOW COMES the ILLINOIS ENVIRONMENTAL REGULATORY GROUP

(“IERG”), by one ofits attorneys, Katherine D. Hodge ofHODGE & DWYER, and

submits the following Pre-Filed Testimony of Jeffrey P. Smith for presentation at the

February 6, 2001, hearing scheduled in the above-referenced matter:

Testimony of Jeffrey P. Smith

My name is Jeffrey P. Smith. I am employed by Abbott Laboratories (“Abbott”)

as the manager ofLake County Environmental Water Compliance, a position I have held

forjust over three years. Before joining Abbott, I was employed by Commonwealth

Edison (“Edison”) for approximately 21 years. Much ofmy experience while at Edison

was in its Environmental Services Department as a supervisor ofthe water permitting

section. In my current position, I am responsible for water and wastewater compliance

matters concerning Abbott’s Lake County, Illinois facilities. In this capacity, I regularly

interact with the Illinois Environmental Protection Agency (“Agency”) concerning a

variety ofNPDES permit issues, including permit negotiations and the implementation of

federal and state water pollution regulations. I hold a Bachelor’s Degree in Civil

Engineering and a Master’s Degree in Sanitary Engineering. I also possess an MBA

degree.

---

I very much appreciate the opportunity to provide testimony to the Illinois

Pollution Control Board (“Board”) on this important rulemaking. My testimony is being

offered on behalf of the Illinois Environmental Regulatory Group (“IERG”), ofwhich

Abbott Laboratories is a member.

Before proceeding with my testimony, I want to both acknowledge and

compliment the Agency for its efforts in shepherding this extremely important, but

somewhat controversial, rulemaking to its present status as a proposed rule. I was an

active participant on the Agency’s antidegradation advisory group. When the group first

met over two years ago, there was little agreement on how an antidegradation regulation

should look, or even on whether amendments to Section 302.105 were necessary.

However, through a series ofmeetings and discussions over various “straw man”

regulatory proposals, the advisory group achieved some consensus on the overall format

of the present proposal and on several important elements contained in today’s proposal.

Without the Agency’s perseverance and skills in promoting a constructive dialogue, I’m

certain the Board’s task would have been significantly more difficult than the present

situation in which the Board will be contemplating a proposal that has been developed

and refined with much input by interested stakeholders.

Introduction to Testimony

My testimony today will address four topics. First, I will address the general

requirement proposed by the Agency that the burden for providing all information

necessary for the Agency to conduct an antidegradation assessment be placed entirely on

the permittee when, in fact, some or all ofthe required information may already reside

within the Agency. Second, I will address IERG’s proposal to include an additional

---

category ofactivities under Section 302.105(d) that would not be subject to an

antidegradation assessment, namely activities that do not result in additional pollutant

loading. Third, I will discuss including an “offsetting” provision as an additional

permitting situation not subject to an antidegradation assessment under Section

302.105(d). Lastly, I will discuss including an exception, again under Section

302.105(d), for stormwater discharges covered under an individual NPDES permit.

Section 302.105(c): Required Information for Antidegradation Review

Proposed Section 302.105(c) specifies the procedure by which the Agency must

conduct an antidegradation review. This includes a reference to the Agency’s proposed

Part 354, which contains criteria for the kinds ofinformation that the Agency must

consider when conducting such a review.

As proposed by the Agency, Section 302.105(c), coupled with proposed Part 354,

mandates that the applicant for a new or modified NPDES permit proposing a pollutant

loading increase or seeking a Section 401 certification must submit ~fl information

required for the antidegradation review.

-

This requirement does not take into account the

fact that the Agency already possesses much ofthis information, particularly as relating

to water quality data.

Arbitrarily requiring an applicant to provide all the information required for an

antidegradation review would result in duplicative and wasteful efforts. For example, the

Agency may already have at its disposal an extensive database ofchemical or biological

data for the water segment ofinterest. This most likely will be true for larger waterways.

Ifthe permittee were to be required to provide such information without consideration of

whether the Agency already possesses it, this would at a minimum delay the application

3

---

from going forward until the information was obtained through other sources, such as a

literature review or an actual sampling study ofthe receiving water. In either case, the

ensuing effort would be wasteful; an extensive chemical or biological sampling study can

easily cost from several thousand to several hundreds ofthousands of dollars and take

weeks or months to complete. Under some situations, it is conceivable that such

additional expense or delay could even undermine the project’s viability.

Additionally, any sampling investigation may only provide a “snapshot” of

current conditions as opposed to characterizing long-term trends or seasonal variations

which may, in fact, be possible using water quality databases maintained by the Agency

or the Illinois Department ofNatural Resources (“IDNR”).

IERG recommends amending the Agency’s proposal to include new subsection

302.105(c)(2)(B)(iii), to clarify that the applicant is responsible for assuring that the

Agency has at its disposal all information necessary for conducting an antidegradation

review, without requiring the applicant to necessarily provide all ofthat information,

This approach is consistent with the Agency’s proposed Section 354.104, which

promotes early communications between the permittee and Agency to “help assure the

adequacy ofinformation necessary to constitute an antidegradation demonstration..

.

Section 302.105(d) Activities Not Subject to an Antidegradation Demonstration: No

Increase in Pollutant Loading

IERG also recommends adding additional situations to the list of activities not

subject to an antidegradation demonstration, which list is contained in proposed Section

302.105(d). One such situation would be where a new permit limit is applied, or an

existing limit is revised, yet here is no actual increase in the loading ofa pollutant. Such

circumstances may arise due to the availability ofimproved monitoring data, new

4

---

analytical testing methods, or imposition of new or revised technology or water quality-

based effluent limitations.

This proposed exemption surfaced at several meetings ofthe Agency’s

antidegradation advisory group, and was modeled after similar provisions contained in

the GLI’s antidegradation regulation and other states’ antidegradation rules. However,

the provision was not included in the Agency’s final antidegradation proposal, as the

Agency believes that it is evident that such situations do not involve pollutant loading

increases, and therefore are not subject to the antidegradation rule at Section 302.105.

Nonetheless, for clarification purposes and to avoid possible future

misunderstandings, IERG believes it is beneficial to include the following provision in

Section 302.105(d):

Changes to or inclusion ofa 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 effluents (“WQBEL’s”).

IERG’s proposed Section 302.1 05(d)(7).

Section 302.105(d) Activities Not Subject to an Antidegradation Demonstration: Internal

Facility Offsets

IERG also believes it is necessary to include a provision in Section -302.105(d)

which exempts new or increased pollutant loadings from the antidegradation

demonstration requirement in those instances where there is an internal offsetting

reduction ofthe pollutant made by the permittee, and the discharges involve the same

body ofwater.

Such a provision would be highly desirable where a permittee has two permitted

outfalls discharging to the same water body. Suppose, for example, that due to

5

---

equipment problems, the facility needed to shift manufacturing between two production

buildings each of which discharges to a different outfall. Assuming in this example that

there is no net increase in the overall pollutant loading from the facility, under the

Agency’s proposed antidegradation rules, the facility would still be subject to the

antidegradation demonstration requirement in addition to possibly being required to

modify its NPDES permit. In this example, subjecting the facility to the antidegradation

demonstration requirement seriously impacts the facility’s operating flexibility. Such an

outcome seemingly goes beyond the intent and purpose ofthe antidegradation concept,

which is to maintain and protect surface water bodies at their existing level of quality.

Therefore, IERG recommends that Section 302.105(d) be amended to include the

following new provision:

New or increased discharges of a pollutant where the permit applicant has

made a contemporaneous and enforceable decrease in the actual loading of

that pollutant at the source such that there is no net increase in the loading

ofthat pollutant into the same surface water body or surface water body

segment;

Section 302.105(d) Activities Not Subject to an Antidegradation Demonstration:

Stormwater Discharges Covered by An Individual NPDES Permit

Finally, many industrial facilities have stormwater discharges which are

permitted under an individual NPDES permit. Such situations are commonly

found at facilities which discharge non-stormwater waste streams together with

stormwater that is subject to contamination from outdoor industrial activities. The

Agency’s practice is to regulate the stormwater discharges by including a

Stormwater Pollution Prevention Plan (“SWPPP”) requirement in the facility’s

individual NPDES permit.

6

---

As proposed, Section 302.105(c)(2) could be construed to require an

antidegradation review for outdoor plant modifications or construction at facilities

operating with an individual NPDES permit for their stormwater discharge(s).

For example, the construction of a new building, lay-down area orplant roadway

may have the affect ofincreasing the volume of stormwater runoff if the amount

of impervious surface area increased. Additionally, certain kinds ofdevelopment

or construction may inherently increase the potential for stormwater discharge. In

either situation, even though such changes would be regulated by the SWPPP

requirement in the facility’s individual NPDES permit, it could be argued that

under proposed Section 302.105 (c)(2), an antidegradation review is still

necessary.

It is important to note that the proposed exemption in Section

302.105(d)(6) would not be applicable to the above scenarios as this exemption

applies only to discharges covered by a general NPDES permit.

-

At the Board’s December 6th hearing, when questioned about such

hypothetical situations, Mr. Toby Frevert indicated that the Agency would take

the position that such modifications or construction would not be subject to an

antidegradation review provided the plant was not expandingto a new property

not already covered by the SWPPP requirement in its current permit. However,

as proposed, Section 302.1

05(c)(2)

does not specifically provide the Agency with

the discretion to make this exemption.

Industrial facilities possessing an individual NPDES permit for their

stormwater discharges may face another unintended dilemma under Section

7

---

302.105 when they apply for a renewal of their NPDES permit. Specifically,

some individual NPDES permits impose loading limits on specific pollutants

present in a stormwater discharge. When these permits are renewed, the facility is

required to provide updated precipitation data in its permit renewal application.

The Agency, in turn, considers the updated precipitation information when

establishing pollutant-loading limits for the new permit. Should precipitation

levels happen to increase during the intervening years since the previous permit

application, the Agency likely would propose a higher loading limit in the new

permit because of the improved, broader precipitation data base. Consequently,

although nothing at the facility has changed, the permittee may find itself facing

an antidegradation review requirement through no fault ofits own.

To remedy these very real, but unintended problems, IERG recommends that

Section 302.105(d) be amended to include the following newprovision:

Site stormwater discharges covered by a Stormwater Pollution Prevention

Plan, as required in an individual NPDES permit, provided that the

discharge will not cause or contribute to a violation ofIllinois water

quality standards;

8

---

Conclusion

On behalf of

IERG, I very much appreciate the Board’s consideration ofthese

comments and would be happy to answer any questions you may have.

***

IERG reserves the right to supplement or modify this pre-filed testimony.

Respectfully submitted,

By:_________

Katherine D. Hodge

Dated: January 18, 2001

Katherine D. Hodge

HODGE & DWYER

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

IERG:001/R Dockets/FiIIRO1-13/Pre-filed Testimony of Jeffrey P. Smith

9

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

)

)

REVISIONS TO ANTIDEGRADATION

)

R01-l3

RULES: 35 ILL. ADM. CODE 302.105,

)

(Rulemaking)

303.205, 303 .206, AND 106.990

—

106.995

)

PRE-FILED TESTIMONY OF FREDRIC P. ANDES

NOW COMES the ILLINOIS ENVIRONMENTAL REGULATORY GROUP

(“IERG”), by one of its attorneys, Katherine D. Hodge ofHODGE & DWYER, and

submits the following Pre-Filed Testimony ofFredrie P. Andes for presentation at the

February 6, 2001, hearing scheduled in the above-referenced matter:

Testimony of Fredric P. Andes

My name is Fredric P. Andes. I am an environmental lawyer, Of Counsel in the

Chicago and Washington, D.C. offices ofBarnes & Thornburg. I have been practicing

environmental law for over 20 years and for the last eight years, have focused

particularly on regulatory issues arising under the Clean Water Act (“CWA”). I am

currently serving as Coordinator ofthe Federal Water Quality Coalition, which is a group

ofindustrial, municipal, and agricultural parties that seek to influence rulemaking and

other actions ofthe United States Environmental Protection Agency (“USEPA”) under

the CWA. Also, I was selected by USEPA to serve on the Federal Advisory Committee

(“FACA”) regarding the Total Maximum Daily Load (“TMDL”) program. In addition to

these federal activities, I have been very involved in clean water issues being dealt with

by the Midwest States. I have served since 1993 as counsel for the Great Lakes Water

Quality Coalition (“GLWQC”), an association of regulated companies and municipalities

that has been very active in USEPA’s rulemaking process to adopt the Great Lakes

---

Initiative (“GLI”) requirements. Also, I have been involved in the individual states’

efforts to adopt their own rules to implement the GLI program, representing affected

dischargers in those states. In addition, I have served on state advisory groups regarding

antidegradation regulations in Indiana, Ohio, and Illinois, and state advisory groups

regarding the TMDL program in Ohio and Indiana.

In 1995, USEPA issued the GLI rules, which directed each of the Great Lakes

States to adopt certain requirements concerning water quality standards, procedures to

-

implement those standards in permits and antidegradation provisions. The

antidegradation requirements in the GLI rule covered only a limited class of22

compounds, called “bioaccumulative chemicals ofconcern” or “BCCs.” The BCCs

include mercury, dioxin, PCBs and a number ofpesticides that have been banned for use

in the United States. States were allowed some latitude in determining the specific

requirements to adopt as to these substances, as long as the state procedures were

“consistent with (as protective as)” the provisions specified by USEPA in the GLI rule.

In developing these antidegradation rules, some ofthe states decided to adopt

requirements for non-BCCs as well.

All of the Great Lakes States already had general antidegradation standards that

covered all regulated substances, but few had developed specific procedures to

implement those general standards, and USEPA Region V had been telling the states that,

under the federal antidegradation policy, contained in 40 C.F.R. § 131.12, they needed to

have antidegradation implementation procedures in place. Therefore, the other Region V

states ended up adopting detailed, specific antidegradation implementation rules as to

both BCCs and non-BCCs. In the course ofdoing so, these states carefully considered

2

---

and made decisions on the appropriate scope and nature oftheir antidegradation

programs, including the specification ofexceptions to antidegradation review and the use

ofde minimis levels. Those decisions can, we think, be very instructive to this Illinois

Pollution Control Board (“Board”) in making decisions as to the specifics of the Illinois

antidegradation program.

As an initial matter, it is important to note that, except for BCC discharges in the

Great Lakes Basin (as to which this Board has already adopted a set of requirements),

USEPA has always allowed states across the country a great deal oflatitude in

determining the appropriate procedures to implement their antidegradation standards.

The federal policy, located at 40 C.F.R. § 131.12, contain no specific directions as to

what state procedures should look like, and USEPA’s Water Quality Standards

Handbook provides little specific direction. In practice, USEPA has allowed states to

determine the particularprocedures that they feel to be most appropriate for their

individual situations. USEPA has not required states to subject every single new or

increased discharge, no matter how small, to antidegradation review, and USEPA has not

kept states from determining that certain types ofactivities automatically satisfy some or

all ofthe antidegradation requirements.

Working within that federal system, states in the Midwest have included

exceptions and de minimis levels in their antidegradation rules. For example, Indiana has

adopted some thirteen (13) exceptions to antidegradation review, plus a de minimis level.

Michigan has included ten (10) exceptions in its program, in addition to a de minimis

level. Wisconsin has a very broad class of discharges that are classified as de minimis,

and therefore are exempt from review, but also has a specific exemption for noneontact

3

---

cooling water. Many of the exceptions in these rules have also been included in the

proposed rules that are currently before the Board, and we encourage the Board to

include those exceptions in these rules when they are adopted. However, some of the

exceptions and de minimis levels that other states have adopted are not included in the

Illinois rules as proposed by the Illinois Environmental Protection Agency (“Agency” or

“IEPA”), and we urge the Board to seriously consider those provisions for inclusion in

the adopted rules.

It is important to recognize, in considering these issues, that each of the states that

I mention has decided to put its exceptions and de minimis levels into its detailed Board-

approved rules. (In Michigan, there is no Board, so there is only one set ofAgency-

issued rules, and the exceptions and de minimis levels are included in those rules.) It is

not appropriate to include general requirements in the Board rules, and then put the

exceptions and de minimis levels in separate Agency-adopted rules. This would raise the

possibility that the Board rules would be interpreted, because oftheir broad scope and

lack of exceptions or de minimis levels, to cover all new or increased discharges, raising

questions as to whether the Agency rules could even include exceptions or de minimis

levels. To avoid these problems, the specific exceptions and de minimis levels need to be

included in the Board rules.

In the testimony provided today by Ms. Hirner and Mr. Smith, the Illinois

Environmental Regulatory Group (“IERG”) has explained why it is important for the

State’s antidegradation program to include appropriate exceptions and de minimis levels.

Without these provisions, the State could be forced to conduct a full antidegradation

review for every new or increased discharge, no matter how minor. This is in addition; it

4

---

should be stressed, to the review of water quality issues that is already performed

whenever a facility seeks to modify the effluent limits in its permit. Antidegradation

review requires the IEPA to evaluate the social/economic worth ofa project. This is a

task that is not related to the Agency’s environmental focus, and the Agency is not well

equipped to perform this function, particularly if it must do so for every small new or

increased discharge. Antidegradation review has always been intended to be conducted

for major new activities that have potential for significant impacts on water quality. Any

broadening of that scope will result in substantial extra work for IEPA, less focus on the

major activities that really need the review, and a great deal ofdelay and additional costs

for the many small changes in facility operations that take place on a daily basis across

the State. In order to avoid that result, the Board’s antidegradation rules need to be very

focused. Appropriate exceptions and de minimis levels are critical in attaining that goal.

In addition to the provisions discussed by Mr. Smith, IERG has included in its

proposal a number ofother exceptions and de minimis-related provisions. Most of them

cover situations that have also been addressed by other states in their antidegradation

rules, while a few (such as one relating to adjusted standards) deal with Illinois-specific

circumstances. Some of these provisions cover minor discharges that should not have to

be covered by antidegradation review. Other provisions address situations that clearly

have significant social/economic benefit, so that there is no need to evaluate these factors

again in the antidegradation process. Inclusion ofthese provisions in the Illinois

antidegradation rules would help substantially in creating a program that protects water

quality without adversely affecting economic development in the State,

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Finally, IERG proposes that an increase in pollutant loading be considered “de

minimis,” and thus not subject to the comprehensive antidegradation review, if it uses

less than ten percent (10) of the assimilative capacity of the surface water body at

issue. IERG believes that this proposed test for what constitutes a “de minimis” increase

in pollutant loading represents a reasonable balance between the need ofIEPA to limit

the number ofpollutant loading increases that are subjected to the detailed

antidegradation demonstration requirements and the need to protect and maintain water

quality.

Conclusion

On behalfofIERG, I appreciate the Board’s attention to the issues raised in this

testimony. I would be happy to answer any questions.

***

IERG reserves the right to supplement or modify this pre-filed testimony.

Respectfully submitted,

By:_________

Katherine D. Hodge

Dated: January 18, 2001

Katherine D. Hodge

HODGE & DWYER

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

IERG:001/R DocketslFil!R01-13/Prefiled Testimony of Fredric P. Andes

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

)

)

REVISIONS TO ANTIDEGRADATION

)

R01-13

RULES: 35 ILL. ADM. CODE 302.105,

)

(Rulemaking)

303.205, 303.206, AND 106.990

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106.995 )

PRE-FILED TESTIMONY OF BILL COMPTON

NOW COMES the ILLINOIS ENVIRONMENTAL REGULATORY GROUP

(“IERG”), by one ofits attorneys, Katherine D. Hodge ofHODGE & DWYER, and

submits the following Pre-Filed Testimony ofBill Compton for presentation at the

February 6, 2001, hearing scheduled in the above-referenced matter.

Testimony ofBill Compton

Good Morning. My name is Bill Compton, and I am presenting testimony today

in support ofthe revisions to the Illinois Environmental Protection Agency’s (“Agency”

or “IEPA”) proposal filed by the Illinois Environmental Regulatory Group (“IERG”).

My testimony today is specifically offered in support of IERG’s proposed revision that

would clarify the procedure by which the designation of a surface water body as an

Outstanding Resource Water (“ORW”) would occur.

By way ofpersonal introduction, I have been with Caterpillar Inc. (“Caterpillar”),

a founding member ofIERG, for over twenty-six years, and am a member of the

Corporate Environmental Affairs Department ofCaterpillar’s Corporate Auditing and

Compliance Division. I have broad corporate-wide responsibilities at Caterpillar in the

area of facility environmental management systems program development, administration

and performance assessment. One of my areas ofspecial concentration is oversight of

Caterpillar facilities worldwide that are classified as public water supplies.

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Prior to my employment by Caterpillar, 1 was employed for two years as the

Laboratory Director of the Occupational Health Studies Group in the Department of

Environmental Sciences and Engineering, School ofPublic Health, University of North

Carolina at Chapel Hill. Before that, I was the Manager ofthe Air and Water Pollution

Laboratory in the Life Sciences Division, Syracuse University Research Corporation,

specializing in surface water quality field and laboratory studies.

I have been involved in a variety of environmental initiatives in Illinois related to

water issues. Presently, I am a citizen/business member ofthe Governor’s Groundwater

Advisory Council and serve as its Chairman. Also, I am a citizen/business member and

Chairman ofthe Central Regional Groundwater Protection Planning Committee, one of

the first three priority region committees established under the Illinois Groundwater

Protection Act. Additionally, I am a founding Trustee ofthe Groveland Township Water

District in Tazewell County and have served as the Chairman ofits Board ofTrustees

since 1986. Further, I serve as a member, in an environmental capacity, on the

Governor’s State Government Accountability Council.

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I am also involved as a member of the IEPA Citizens and Technical Source Water

Advisory Committee, and have served as a member ofthe IEPA Antidegradation

Workgroup, whose efforts have led to these proceedings.

Use of Adjusted Standard Procedure for ORW Designation

Caterpillar and IERG support the inclusion in Illinois’ antidegradation regulations

of a procedure by which waterbodies can be designated as ORWs. If a surface water

body truly has a sufficiently unique high biological or recreational quality, that surface

water body should be preserved for the use ofall citizens of the State of Illinois.

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Both Caterpillar and IERG are concerned, however, that the Agency’s proposal

does not clearly specify the procedure by which persons should seek the designation ofa

surface water body as an ORW. When IERG addressed this issue to the Agency’s

witness, Mr. Toby Frevert, at the November 17, 2000, hearing in this matter, Mr. Frevert

indicated that the Agency “want~ed to adhere to a fairly open regulatory process.”

November 17, 2000, Transcript at p. 88, 11. 9-10. Mr. Frevert further testified, however,

that:

the ramifications ofa decision to designate a surface water body as an

ORW are fundamentally more significant than the ramifications ofa

typical adjusted standard or even a statewide standard in that we are not

setting a target to protect an environmental use here. We are setting an

absolute prohibition on some activities. And that has greater ramifications

on property owners and other citizens in the community than changing the

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

***

You are not only talking about surface property rights, but even mineral

rights~, and with an outstanding resource water other than a very few

things you are almost precluded in any development.

November 17, 2000, Transcript at p. 88, 11. 11-19. And, Mr. Frevert continued by stating

that in light of the ramifications ofthe designation ofa surface water body as an ORW,

the Agency’s goal is “to make sure that the people that have something at stake and are

effected sic have a better chance ofgetting notice early on so they can participate.”

November 17, 2000, Transcript at p. 89, 11. 12-15.

In response to this testimony, IERG inquired ofMr. Frevert whether the Agency

saw any similarity between the designation of special resource groundwaters, which

currently takes place through the adjusted standard procedure contained in the Board’s

regulations, and the designation ofORWs. November 17, 2000, Transcript at pp. 93 to

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94. Mr. Frevert acknowledged that the designation ofa special resource groundwater and

the designation ofan ORW would both impose “significant.

. .

restrictions” on property

owners. November 17, 2000, Transcript at p. 94, 11. 2-8. In fact, Mr. Frevert testified that

it was his understanding that the limitations associated with the designation of an ORW

“may be even more restrictive for outstanding resource waters than the limitations placed

on groundwaters.” November 17, 2000, Transcript at p. 94, 11. 9-12.

Caterpillar and IERG agree with Mr. Frevert that the ramifications of the

designation of a surface water body as an ORW on property owners would be great, even

greater than those imposed on property owners in connection with special resource

groundwaters. We further agree with Mr. Frevert that those persons whose rights would

be affected by the designation ofa surface water body as an ORW must be protected as

the process ofsuch a designation goes forward. With these concerns in mind, we submit

that the adjusted standard procedure currently contained in the Board’s regulations should

be the procedure by which persons seek designation ofa surface water body as an ORW.

First, the Agency’s proposal does not sufficiently designate the process by which

ORW designations should be sought. As Mr. Frevert noted in his testimony, the Agency

contemplates that the mechanism by which such designations would be sought would be

a “fairly open regulatory process.” However, Mr. Frevert acknowledged that the process

would take away the rights ofspecific property owners, which implies the need for an

adjudicatory process.

The Agency’s proposal comes out somewhere in between, providing for some sort

of quasi-regulatory, quasi-adjudicatory proceeding. We feel that specifying that the

procedure to be used is the adjusted standard procedure already provided for by the

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Board’s regulations would provide much more clarity to those persons seeking ORW

designations and to parties interested in such proceedings as to how the proceedings are

to take place. This will promote smoother proceedings and will make the jobs ofthe

proponent ofORW designation, interested parties and of the Board easier.

Second, given the Agency’s acknowledgement that the designation of a surface

water body as an ORW would have tremendous impact on the rights ofowners of

property adjacent to that surface water body, an adjudicatory process such as the current

adjusted standard procedure is the only fair way to consider an application for ORW

designation. Unlike the 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 when making its decision. And, an adjudicatory process such as the

adjusted standard procedure would provide all affected property owners and other

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

Third, the Board has acknowledged that the adjusted standard procedure is

appropriate for ORW designation by adopting that procedure as the mechanism by which

special resource groundwaters are designated. As the Board is aware, “special resource

groundwater” is:

a)

groundwater that is determined by the Board.

. .

to be:

1)

Demonstrably unique (e.g., irreplaceable sources of

groundwater) and suitable for application ofa water quality

standard more stringent than the otherwise applicable water

quality standard specified in Subpart D; or

2)

Vital for a particularly sensitive ecological system; or

b)

Groundwater that contributes to a dedicated nature preserve.

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35 Ill. Admin. Code § 620.230. Similarly, the Agency proposes to define “ORWs” as “a

water body or water body segment that is of uniquely high biological or recreational

quality.” Proposed Section 303.205.

As noted above, I am Chairman of the Central Regional Groundwater Protection

Planning Committee, Chair of the Governor’s Groundwater Advisory Council, and

Chairman ofthe Board ofTrustees ofthe Groveland Township Water District in

Tazewell County, Illinois. I participated on the committee that considered the revisions

to the Board’s regulations that resulted in Section 620.230 and the application of the

adjusted standard procedure to the designation of special resource groundwaters. I can

represent to the Board that that committee on which I served concluded that, in light of

the effect of such a designation on the uses of real property that contains special resource

groundwaters, the procedures ofthe adjusted standard process were necessary to assure

that the rights and interests ofall parties were represented before the Board in

proceedings to designate special resource groundwaters.

Further, as Mr. Frevert acknowledged in his November 17, 2000, testimony,

owners ofreal property that contains special resource groundwater must observe special

rules relating to that groundwater, which rules limit the use of their property. ~

35 Ill. Admin. Code § 620.430. Similarly, as Mr. Frevert acknowledged, the designation

of a surface water body as an ORW would significantly limit the uses ofproperty

surrounding the surface water body.

In fact, again, Mr. Frevert acknowledged that the restrictions placed on the owner

ofproperty adjacent to an ORW would likely be greater than those placed on the owner

of property that contained a special resource groundwater. The Board decided that

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property owners that would be impacted by the designation ofa special resource

groundwater needed the protection of the adjusted standard. £~35 Ill. Admin. Code §

620.260. In light of the greater burdens that would be imposed by ORW designation,

property owners that would be impacted by such a designation need such protection as

well. Accordingly, IERG has proposed a revision to the Agency’s proposed Section

303.205 to clarify that proceedings to designate water bodies as ORWs shall take place

pursuant to the adjusted standard procedures specified in Section 28.1 ofthe Act (415

ILCS 5/28.1) and 35 Ill. Admin. Code l04.Subpart D.

Support Necessary for ORW Designation

In addition, IERG has proposed further revisions to the Agency’s proposed

Section 303.205 to clarify what information persons who seek an ORW designation

would need to submit to the Board in support of such a designation. IERG modeled these

further revisions on the Agency’s proposed revisions to what was formerly Part 106 of

the Board’s regulations, but which is now codified as Part 104 ofthose regulations.

Under IERG’s proposed revisions, the information that persons who seek an

ORW designation would be required to submit includes: a description ofthe 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 ofthe designation); a statement of the impact

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

anticipated uses ofthe surface water body; and, information on the present and

anticipated quality of the surface water body. All of this information is necessary for a

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complete review ofa request for an ORW designation and a determination by the Board

ofwhether that designation is proper. Further, like the use ofan adjudicatory proceeding,

consideration by the Board of all relevant information will help ensure that ORW

designations are made in a fair and open process.

Other than clarifying the Agency’s proposed revisions to former Part 106 to fit the

context ofthe antidegradation regulations, IERG has proposed only three changes to the

Agency’s language. First, IERG has proposed amending the Agency’s proposed Section

303.205 to provide that the Board may only designate a surface water body as 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 ofthe designation. In light of

the significant burden that the Agency acknowledges an ORW designation would place

on owners ofproperty surrounding a surface waterbody, IERG believes that requiring the

Board to find that the benefits ofan ORW designation would “substantially” outweigh

lost economic and social benefits before granting an ORW designation is justified.

Second, IERG has proposed amending the Agency’s proposed Section 303.205 to

provide that, in support ofa petition for an ORW designation, the proponent ofsuch

designation must submit proof that it has served a copy of its petition on specified

interested parties. These include current NPDES permittees who discharge into the

surface water body at issue and owners ofreal property located adjacent to the surface

water body at issue. Again, an ORW designation would profoundly affect the rights of

these parties to use their land, and due process dictates that they be given proper notice of

any effort to secure an ORW designation.

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Third, IERG has proposed adding a definition ofthe term “surface water body.”

IERG’s proposed definition is for the most part identical to the definition of“surface

water body” contained in 35 Ill. Admin. Code § 732.103, and makes clear that the term

“surface water body” does not include groundwater, which may be protected under the

Special Resource Groundwater designation procedure discussed above.

Conclusion

In conclusion, Caterpillar and IERG believe that the Agency’s proposal must be

clarified to specify the procedure by which ORW designations are made. Further, for the

reasons stated above, we submit that the most appropriate mechanism for making ORW

designations is the adjusted standard procedure already provided for in Section 104 ofthe

Board’s rules and already utilized by the Board to consider petitions for designation of

special resource groundwaters. Finally, we submit that the Agency’s proposal should be

amended to clarify what information persons seeking an ORW designation must submit

in support ofthat designation.

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Thank you for the opportunity to testify today; I would be pleased to answer any

questions the Board may have at this time.

***

IERG reserves the right to supplement or modify this pre-filed testimony.

Respectfully submitted,

By:___

atherine D. Hodge

Dated: January 18, 2001

Katherine D. Hodge

HODGE & DWYER

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

IERG:00 1/R Dockets/Fil/RO 1-1 3/Pre-filed Testimony ofBill Compton2

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