BEFORE THE

ROb BOARD

IN THE MATTER OF:

)

)

REVISION TO ANTIDEGRADATION RULES:)

35 ILL. ADM. CODE 302.105,303.205,

)

303.206,

and 106.990

—

106.995

)

)

RECEIVED

CLERK’S OFFICE

MAR

2

02001

STATE OP ILLINOIS

Pollutj~~ Control Board

RO1-13

(Rulemaking

—

Water)

TO:

DorothyM.

Gunn

Clerk ofthe Board

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago, fllinois 60601

(VIA FEDERAL EXPRESS)

Marie Tipsord

Hearing Officer

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

(VIA FEDERAL EXPRESS)

Attached Service List

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

Control Board the COMMENTS OF THE CHEMICAL INDUSTRY COUNCIL OF ILLiNOIS,

a copy is herewith served upon you.

Respectfiilly

Submitted,

By:

/~iY?/3/c{/y)Co

Christie M. Bianco

Date: March

19,

2001

Christie M. Bianco

Chemical Industry Council of Illinois

9801

West Higgins Road,

Suite 515

Rosemont, IL

60018

847/823-4020

---

RECEIVED

CLERK’SOFFICE

MAR

2

02001

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

STATE

OF

ILLINOIS

Pollution Control Board

IN THE MATTER OF:

)

)

REVISION

TO ANTIDEGRADATION RULES:)

RO1-13

35 ILL. ADM. CODE 302.105, 303.205,

)

(Rulemaking

—

Water)

303.206, and

106.990

—

106.995

)

)

COMMENTS OF THE CHEMICAL INDUSTRY COUNCIL OF ILLINOIS

NOW COMES the CHEMICAL INDUSTRY COUNCIL

OF ILLiNOIS

(CICI) through

its Regulatory Affairs Director, Christie M. Bianco, and

hereby submits the following comments

relating to the above-referenced matter.

CICI

is

a not-for-profit, statewide association that represents

189

corporations, over one

hundred ofwhich are

chemical firms who manufacture, blend,

distribute

and sell chemicals.

The

chemical

industry

in

the state of

Illinois

ranks third

in

the

United

States

in

chemical

exports,

fourth in value ofchemical shipments and maintains morethan 62,000 employees.

CICI appreciates the

opportunity

to

comment

on

the

Illinois

Environmental

Protection

Agency’s (Agency) Antidegradation

proposal

and

the process the

Agency

used

to draft

and

promulgate the proposal.

As members ofthe regulated community we welcomed the opportunity

to

participate in a workgroup,

established

by

the

Agency

in 1998,

to address antidegradation

issues.

CICI

members contributed

to the process

and

played

a

key

role

in

many

of

the

enhancements and modifications to the Agency’soriginal proposal.

CICI

has

worked

closely

with

the

Illinois

Environmental

Regulatory Group

(IIERG)

throughout this

rulemaking

process and

together both

groups

submitted

comments,

in

January

2000, to

the Agency’s antidegradation

proposal

(a

copy of those

comments

are attached). We

have reviewed

and

endorse

the

comments

submitted

by

1ERG

on

March

19,

2001

We

also

---

endorse IERG’sproposed revisions to the Agency’s proposalthat were submitted as part oftheir

pre-filed testimony at the February 6, 2001, Illinois Pollution Control Board (Board) hearing.

In the past, we have stated our belief that the current procedures utilized by the Agency to

make antidegradation determinations

are technically sound,

legally sufficient

and

conducted

in

a

manner consistent with the

intent ofFederal and State

laws and

regulations.

We also stated that

if such procedures

fall short in any manner, it is in the area ofpublic

disclosure and

Outstanding

Resource Water (ORW) designation procedures.

CICI still holds this

position.

The process for drafting the Agency’sproposal has been an open and

inclusive one.

We

thank the Agency for their efforts and

would

like to take this

opportunity to identify portions of

the Agency’s proposal that are of concern to

CICI

and

its

member

companies.

The following

issues will be addressed in these comments:

• The language

in

the Agency’sproposal is

ambiguous as to

which

kind ofpermit actions

trigger an antidegradation review;

• The Agency’somission of a

significance test to

determine the need for a

comprehensive

antidegradation review;

• TheAgency’s exclusionofany kind ofde minimis exemption;

•

Illinois

Department of Natural Resources’ proposal to

designate four streams as ORWs

and the importance ofa clear procedure for designating an ORW.

Clarification

Our

first

area of concern

is the

language

the

Agency

uses,

or does not use, to

describe

which

increases

in

pollutant

loading

trigger

antidegradation

review.

Section 302.105

of the

Agency’s proposal uses the

phrase,

“any proposed

increase

in

pollutant

loading

subject to an

NPDES permit or CWA Section

401

certification,” as the qualifier.

We would like to

clarify the

intent

of the

Agency

to mean only proposed

increases in

pollutant

loading,

which are above a

2

---

currently permitted or authorized level,

would be

subject to antidegradation review.

At the

first

Pollution Control Board hearing, held on November

17, 2000, Toby Frevert was asked to

clarify

the Agency’sintent.

In response to a question Mr.

Frevert stated,

“..

.the antidegradation review

would not come into

place unless

you

filed

an

application for an

increase

over and above those

levels that

are already

authorized

in your permit” (Frevert Testimony,

November

17,

2000,

Tr.

46). CICI supports this clarification.

Significance Determination

One issue the Agency and environmental groups have expressed concern over is the ever-

increasing burden on the Agency’sstaff and resources.

It

is exactly for this reason the Pollution

Control

Board

should endorse

the concept

of

a

significance

test

to determine

whether

a

comprehensive antidegradation review is necessary.

This in no way suggests that some increases

in loadings should not receive any kind ofreview by the Agency.

CICI

members

worked

closely

with

IERG

and

were

instrumental

in

drafting the

significance

determination

provisions

reflected

in

Section

302.1

05(c)(2)

of

the

proposed

revisions IERG submitted to the Board on January

18, 2001.

These revisions

would

require applicants seeking a

significance determination to provide

the Agency with information

(nature ofthe proposed discharge, quality and

characteristics of the

receiving

water,

etc.) necessary to

make the determination.

It

also

allows

the Agency to utilize

any

relevant

information or resources

they

might

have,

including

data, reports, and experience

with

similar

scenarios.

After

thoroughly reviewing

the information,

if the Agency

determines

that the

proposed

increase

in

loading

or activity

would

not

have

a

significant

impact on the

overall water quality or existing uses of the

receiving

water, then

no

fUrther

review

is

required.

However, if the Agency determines the

increase would have

a significant impact on the receiving

water, they would conduct a fUrther,

more in-depth review of the application.

This process saves

3

---

the

Agency

time

and

resources

by

allowing

them

to focus their attention

on applications that

propose increased loadings or activities that have a considerable impact on water quality.

Like the Agency, time

and

resources are at a premium for many businesses.

The current

language

requires an

applicant

of an

NPDES permit or

a

Section

401

certification to provide

volumes of information,

including social

and

economic

data

that

may

be unnecessary for

the

Agency

to

conduct

a thorough

review. Having

the option to

determine,

up

front,

whether the

proposed increase will have a significant impact on the quality ofthe receiving water is crucial.

De Minimis Exception

CICI has

always

supported a

de

minimis

exception

in

the antidegradation rule

and

endorses the de

minimis

exception

included

in

Section

302. 105(d)(12)

of IERG’s proposed

revisions.

The language

states that “an increase in

pollutant loading that results

in

a lowering of

quality

that

is

less than a de minimis lowering of water quality.. .shall not be subject to a fUrther

antidegradation assessment...” It goes on to state that a “de minimis

lowering of water quality”

occurs

if the

proposed

increase

in

mass

discharged

is

less

than

10%

of the unused

loading

capacity and

then

explains how to

calculate the increase

in

mass

discharged.

This

language

is

very comparable to language proposed

by U.S. Environmental Protection Agency (USEPA) in its

40

CFR Parts

122

et

al.

Water

Quality

Guidance for the Great Lakes

System

and

Correction:

Proposed Rules (Fed. Register, Volume

58,

Number 72,

April

16,

1993) and

provisions used by

other USEPA Region V states.

Ifthe information were available to make the de minimis

determination, it would save the

Agency

from

spending

unnecessary

time

and

resources

on

reviewing

an antidegradation

demonstration.

We

acknowledge

that

not

every

situation

will

qualify

for

a

de

minimis

determination.

However,

where

the

information

is available,

it

should

be

a viable

option to

an

antidegradation application.

4

---

Some have argued that allowing an arbitrary percentage increase is not scientific.

In their

proposed Water Quality Guidance, USEPA states:

.the

10

percent value chosen

as a threshold represents a reasonable balance between the

need of the regulatory

agencies

to

limit the number of actions involving

non-BCCs that

are subjected to the detailed antidegradation

demonstration requirements and the need to

protect and maintain water quality.

We

support

this

argument

and

ask the Board to

consider including

the

proposed de

minimis

language in its final decision.

Illinois Department ofNatural Resources’Proposal

A

final

issue

of concern

is

the

eleventh hour

proposal

by

the

Illinois

Department of

Natural Resources (IDNR) to

designate four streams as

Outstanding Resource Waters (ORWs)

and to

identify 41

additional streams and stream segments for fUture ORW listing.

Two

groups

(Illinois

Environmental

Regulatory

Group

and Illinois

Steel

Group)

filed

motions to strike the testimony,

first introduced as pre-filed testimony at the Board’sfinal public

antidegradation

hearing.

The groups

argued

that the purpose

of

rulemaking

proceeding

underway was to

establish the procedural

rules

by which the Board

will

designate ORWs.

The

reasoning

is

clear: since the procedural

regulations

are not yet

in

place,

it

is premature

for the

IIDKR to request designation ofspecific water bodies.

CICI agrees with this

argument

and thanks the Board for their decision not to

designate

the waters bodies at this time.

In terms of how ORW designation fits in with this proposed rulemaking,

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.

An ORW designation not only affects the

water

body;

it

also

poses major

implications

for property

owners

adjacent to the water

body.

5

---

Therefore,

it

is

imperative

that

any

final rules

specify

what

information a

person

seeking

an

ORW designation must submit in

support of the designation and make the petitioner ofan ORW

designation

responsible

for assuring that

property owner’s rights are not

compromised

without

considering all relevant information.

Mr. Frevert repeatedly testified that the Agency would not require more information than

necessary in a permit

application or require a full review where it is not necessary.

It is

extremely doubtful, however, that the proposed rules give the Agency authority to require less

than a fUll antidegradation review, including fUll consideration ofalternatives.

Moreover, it is

not clear that the Board would have the authority to

affirm an Agency decision based on less

than a complete application and review,

in the event ofa third party appeal.

Only through

amendments as proposed by IERG and

supported by these comments will the Agency be

authorized and required to consider such application; and the Board be given standards by which

to review the Agency’s decision.

We thank the Board for their consideration ofthese comments.

Respectfully Submitted,

Chemical Industry Council ofIllinois

B:

_______________

Christie M. Bianco

Dated: March

19,

2001

Christie M. Bianco

Regulatory Affairs Director

Chemical Industry Council ofIllinois

9801 West Higgins Road, Suite

515

Rosemont,

IL

60018

6

---

i~e

ff06

i~ois

Environmental

Regulatory

Group

215

East

Adams Street

217-522-5512

Springfield.

Illinois

62701

COMMENTS

ON BEHALF OF

THE ILLINOIS ENVIRONMENTAL REGULATORY GROUP

THE

CHEMICAL INDUSTRY COUNCIL OF ILLINOIS

The

following

comments are submitted on

behalf of the

business

community

by the

Illinois

Environmental

Regulatory

Group (IERG) and the Chemical Industry Council of Illinois (dcl).

Both IERG

and CICI have been, and will continue to

be,

active participants

in the discussions

regarding

the implementation

of a workable

anti-degradation

procedure

for

Illinois.

The

comments

attached

reflect the input

of our respective

memberships.

many of whom

will

be

directly affected by the outcome of these discussions.

Prior to

detailing

our

specific

comments.

we

believe it

is

imperative

to put such comments

in

perspective.

Accordingly, IERG and

CICI

request

that

LEPA

review our

comments with

the

following general principles

in mind:

I.

The

business community continues

to

believe

that

the

current procedures

utilized

by

the

LEPA

as regards anti-degradation

are

technically

and

legally

adequate.

If such procedures

fall short

in

any

manner, it would

be

in the area ofpublic

disclosure and ORW designation

procedures.

Accordingly,

we continue

to

maintain

the

position articulated in the proposal

submitted

to

the

LEPA

on

May

11.

1999.

and

would

urge that

the

LEPA

give

serious

consideration

to

this

course of action.

The

business community reserves

its

prerogative

to

advance this position in whatever forum necessary.

2.

Recognizing

that the IEPA may elect to proceed to

rulemaking, the business community has

prepared

a set

of

conceptual

comments

as

detailed

below.

We emphasize

the

word

conceviual

in

that our

comments

today

are

aimed

at

highlighting areas

of major concern

rather than attempting

to

propose

final language

suggestions.

As

discussions proceed. the

business

community

will

continue

to

offer

constructive

critique of any

proposed

language

and

input regardinu

increasinnlv

tine

tuned language.

It

is

important that

the

JEPA

understand

that

the

comments

we

offer

today do

not

constitute language

that

we

would

necessarijy

support

in

a Board

proceedinn.

While

we are

open

to

listening

to

rationajes for

why rulemaking

is

a necessary anci’orpreferred option, our current nositlon remains as Staten

in

#1

above.

—~

Dl

I~]9

-.

-‘

---

~.

The business commnnitv

believes the comments submitted today,

along with the comments

of other

interested

patties.

should

serve

as discussion

points for

future

meetings.

At

this

point, we believe another draft proposal

from the LEPA would

be counterproductive.

Rather

a compilation of comments reflecting the differing points of view should

be prepared by the

JEPA to

facilitate discussion on the merits ofthe major issues articulated by all parties.

4.

Our comments

below contain a briefrationale for our suggested changes as well as language

that would reflect such changes.

While we stress the issue raised in point #1

above, the basic

philosophical tenants that our suggestions attempt

to address are as follow:

A.

The scope ofan anti-degradation review must be

consistent with the intent ofthe Clean

Water

Act.

The

ultimate

decision-making

power,

as

to

whether a

discharge will

constitute unacceptable degradation, rests

with

the

JEPA

(with

appeal

procedures as

allowed under law).

How such a decision is made must be a blend ofsolid information.

experience and professional judgment.

To effectively utilize the resources ofboth the

regulators and the

regulated, a

reasonable

cut

must

be

made

regarding applicability.

There are specific activities and

levels of discharges that, through past experience and

judgmenL can be

eliminated from review.

To

not allow for up front exemptions would

cause review

for review’s sake.

The

business

community suggests

that

given the

limited resources available,

it would

be much more prudent to do a good reviewjob on

all

relevant

permits than a poorjob on all permits.

B.

Alternative options must

be

based

in

reality.

Clearly,

one can theorize a myriad of

technical

options for the ultimate

permit proposal.

However, when the decision-maker

must

determine if an

option should

be

utilized

—

or even considered

—

a measure of

feasibility and reasonableness must be applied.

The regulations must clearly state that a

rational benchmark for decision-making applies.

To

do

otherwise

would

simply

hold

each and

every permit

decision open

for appeal.

The business

community

is

rightly

concerned

that

an

open-ended review will, rather than yield a

final decision

avoiding

third pam permit anpeals. provide information for filing such appeals.

C.

In any petition

to

change a rule or reclassify

a reaulatorv designation,

the burden of

proof

rests

with the

petitioner.

Because

the

designation

of

Outstanding Resource

Waters will have profound impacts

on

land

use

and

landowners.

it

is

imnerative

that

petitioners meet a high standard ofproofin such cases.

As noted

above,

the business

community

believes

that

all

of

the above oniecuves

(absent

the

ORW issue) can be achieved under the frame’.vorkoutlined

in our May

11.

~999. proPosal.

Our

position

notwithstanding

and

in

an

effort

to

demonstrate

our

\viilingness

to

construc:iveiv

participate in

the ongoing

dialogue.

we offer

the

followinu comments

and

a brief ~:rionale §or

ench such comment.

We \viil

be orenared

to discuss these comments ~r the uncomine mee:~ne.

---

Section 302.105 nde~radat!pn AntiDe~radation

The business community supports and would urge the JEPA

to maintain the

JEPA

~‘

replacement

o] the

term

“necesswy” with

“important

“.

Ho~t’ever. the business

community believes

that.

rather than

include

the remainder of the

JEPA s proposed additions to this

section;

the

JEPA

should mirro,; to the extentpossible, the language utilized in section 40 ~FR

131. J2’aX2~,).

Such

language

would

more

effectively accomplish

the

goals of an

antidegradation

program.

We

would suggest thefolloiving:

Section 302.105 No~d.adatie~..AntiDegradation

(~}

Except

as~ otha~vise

provided in

Section

302.521,

waters

v.’hose existing

guali~

is

better than the established standards at their date ofadoption will be malntained in their

present ~gh

guali~.’.

Such

waters

v.’ill not

be

lowered

in

guaIi~’ unless

and

until it is

affirmatively demonstrated that such chanze will not interfere with or become injurious

to

an:~’ appropriate beneficial

uses

made

of, or presently possible

in, such waters

and

that

such

chanze

is justifiable as a result

of nec~ss~’ imuortant economic

or social

A

~,,

lnnrp..,.nn.

p4?

n,ntn,-

,,n

1..,

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4

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economic need

shall be

sufficiently res~cted

that it will not interfere with or become

iniurious to

(ffi~:

—~-~--~-~:

any beneficial uses

made

of. ar

(a)

Where the quality of the water exceeds levels necessary to support propagation of

fish, shellfish, and wildlife and recreation in and

on the water, that quality shall be

maintained

and

protected

unless

the Agency

finds

that

allowing

lower

water

quality

is

necessary

to

accommodate

important

economic or social

developments

in

the

area

in

which

the

waters

are located.

In

allowing

such degradation

or

lower quality, the Agency shall

assure water quality

adequate

to protect

existing

uses

fully.

Further,

the

Agency

shall

assure

that

there

shall

be

achieved

the

highest

statutory

and

regulatory requirements

for

all

new

and

existing

point

sources.

Section 302.105(b) Antidev-adation

The

business

community

believes that the LEPA ~s

proposedSection 302.105(b) should be

deleted

frwn

its

draft revision.

The

inclusion of this language

is not necessary in orderfor the Illinois

£znridegradation.standard to

comvlt’ ~i’irh

Federai antide~yradation reanirements, nor ii’ouid this

standard

be

the appropriate vehicle

/br

the contemplation ofsuch reanirements.

Furher.

the

proposed

language is premature.

While

industry

avw-eciates the

concern

that chemicals

SLjC)ltijiCallv

determined

to

be

harmrizl

to

Iflm7an

hormonal activity and

overall

health

be

idenrifled and controlled

[he provoseti

Ianguar~re

oreemats the US.

Environmentai

Protection

=.‘cncv

“TJiS’EP~

“j

Even

atie,- the

:uzdh—uclw

EDSUC

~rocess——svo?sorL’d

by

:1w

.•c.~.nttcti

~JZ

LI

L~O)75C17S2IS

“C.’JOrt

that

L’CO)fl))ILhldU

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<2~1=!—~lW~CU

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25

.~j:an..

validated ana

.:w,’z:zardi:c::

---

screening and testing program for

chemicals

to

determine their effect,

~fany,

on hormones is

fir’itrequired

The business community has drafted a new Section 302.]05(b) which addresses the applicability

of the antidegradation

standard and ensures the

exemptions,

setforth

in

the

implementation

procedures, are incorporated into

the antidegradation standarditself

We would recommend the

following language:

(b)

~

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tI-,p

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r4prnnnercitoA

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00A

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Apr. .,n

•-~

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flflXV

fifltflfltufll

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hormonal effects

.

(b)

Applicability (NEW SUB-SECTION PROPOSED BY INDUSTRY)

The provisions

of this

section

shall

be

applicable

to

the

administration

of the

NPDES program,

as such

program

applies

to

pe

4-s~w-~e NPDES permits

and

section 401

water

quality permits.

Provided

however,

if

the

permit

applicant

chooses to

and

can

demonstrate

to

the

Agency’ssatisfaction

that

any

such new

permit or permit requesting an

increased pollutant loading will not result in

a)

an

increased

pollutant

loading

of greater

than 20%

above

pre~iouslv

permitted limitations; or

b) ‘theuse of g!-eater than

25%

of the remaining assimilative capacity of the

receivingwater body, whichever is greater,

then such new permit or permit

requesting

an increased

pollutant loading

is

not

subject to the provisions ofthis section.

(c)

Waters that are

classified

as

Outstanding

Resource

Waters

shall not

be

lowered

in

quality

throuah

any

action subject to

NPDES

or Clean Water

Act

Section

401

water

duality certification

reouirements

unless

such

actions

are

allowed

under

Board

regulations or Agency procedures.

&~ction 303.205 Outstanding Resource Waters

(a~

Outstandina

Resource

Waters

are

those

waters

suecificailv

desiQnared

within

this

secuon.

In addition

:o

ail other anulicable

use oesntnarions and

water auaiitv

stanoaros

contained

in

this

Subtitle.

Outstandimi

Resource

\Vaters

are

subject

to

the

antidearadation orovisioris of Sec:ion

302. 105(6

:

---

106

Section 303.205(b

Designation of a water body as an

ORW has profound

economic

as

well

as

environmental

impacts.

Such designations should not be made unless the party proposing such a designation

is

preparedtofully articulate thejustqication and build an adequate recordofthe proceeding.

The

business community couldsupport a Board rule

which allowsfor the~designation ofORWs ifthe

procedure

used for

such

designation

were

sufficientljv

rigorous,

open,

and

limited to clearly

defined reaches ofa waterbody

To accomplish this end

the business community would suggest

the procedure for

designation

of an

ORW be

similar

to that which is

required for

Class

III

groundwater.

The procedure, at

Section

35

MC

620.260,

could

be

modified

to

replace the

Agency’sproposed section asfoiows.

Section

303.205(b)

Classification

of

segments

of

a

surface water as an

Outstandina

Resource Water by Adjusted Standard

(b)

Any

person

may

petition

the

Board

to

classify

a

segment of surface

water

as

an

Outstanding

Resource

Water

in

accordance with

the procedures for

adjusted

standards

specified

in

Section

28.1

of the

Act and

35

Ill.

Adm.

Code

106.

Subpart G.

In

any

proceeding

to

reclassify

specific segments

of

a

surface water by

adjusted

standarci.

in

addition

to

the

requirements of

35

Ill.

Adm.

Code

106.

Subpart

G.

and

Section 28.1(c) ofthe

Act.. the

petition shall include a statement supporting why the

designation

should

be made and shall, at a

minimum?

contain

information

to

allow

the Board to determine:

1)

The

specific

segment(s)

of

a

surface

water for

which

reclassification

is

requested.

including

but

not

limited

to

geoeraphical

extent

of

the

specific

segment of the surface water;

2) Whether the proposed change or use restriction is

necesrar.’ for would

interfere

with

economic

or social development,

by

providing information

including,

but

not

limited

to,

the

impacts

of the

standards

on

the

regional

economy, social

benefits

such as

loss

of jobs

or

closing

of

facilities,

economic

impacts

on

existing

adjacent landowners, and

economic analysis contrasting the health and

environmental benefits with costs likely

to be

incurred in meeting the standards:

3)

ExistinQ

and

anticinated

uses

of the specific segment of the

surface water and

associated drain off area;

4) Existinu

and

anticinated water quality and

associate biological communities of

the specific segment ofthe surface water;

5) Existing and

antic:Dated

contamlnauon.

if

am~.

of

the

snecific

segment

oi

the

suriace wate~-:

..,,-v,1..

.-.

---

7) The anticipated

time period

over

which

~

ac~

on

cont~inants

an:.’

potab1~

‘.vill continue

to

water

supplies

affec:

due

the

to

cantarnination

9) Availability and

cost

of alternate

water

sources

or of treatment for those

users

adversely affected;

10)

Negative or positive effect on property values: and negative or positive effect on

Wetlands,

natural

areas,

and

the

life

contained

therein.

including

endangered

or

threatened

species

of

plant.

fish

or

wildlife listed

pursuant to

the

Endangered

Species

Act,

16

U.S.C.

1531

et seq.,

or

the illinois Endangered Species Protection Act [41 ILCS

101;

11)

That the headwaters of the segment of the surface waters are located

in

an

area that is not impacted by existing man made development

(c)

Public Hearings:

The Board shall hold at least one public hearing in the county

in

which the segment of the surface water proposed for reclassification is located.

(d)

Decision Standards:

Following the close of the record in the ORW petition process

the Board

shall

grant

the

petition

only

if it

finds,

based

on

the

record

proceeding, that:

1.

Designating the specific segment ofthe surface ~vater as an ORW is

necessary

to protect that water; and

2.

The

economic

hardships

caused

by

such

grant

do

not

outweigh

the

enyironinental benefits deriyed; and

3.

The

petitioner

has

provided

sufficient

information

and

demonstrations

on

each of the factors in subsection (b) of this section to

allow the Board

to reach

the required determinations.

Implementation Procedures

SL’CUO)1

I

-—

Intro ducrion

The

business

connnunirv

has concluded that dzL’se procedures.

if adopted.

should

½

limited to

those

nenmnting activities

ii’hich can

be

so

governen

orac:icaihv.

Further.

~l’Cbinn?VL’ that

!IW

dflflhlccouiiv

or

wse

!jrOce~iw~’s should ½

himirL’d :o

new

or

ncreasei

.~oads

‘.vh~.Th e.’:ceei a

0

---

106

The

business community suggests

that the

proposed

Section

1

Introduction be

modified

as

follows:

Section

1

—

Introduction

35

lAG

105

establishes

an

antidegradation standard

for all

surface waters of the state. These

procedures specify the measures

JEPA will follow to apply the basic provisions of 302.105

in its

administration of the NPDES

program, and section 401

water quality review within the state of

Illinois.

Supplemental

antidegradation provisions found at

35

lAG 302.521 also

apply

to

those

surface

waters

within

the Lake Michinan Basin as

desinnated

in

35

lAG

303

.443.

Implementation

procedures

for supplemental

Lake Michigan requirements

can be found at

35

IAC.3 52.900.

Except as

proyided

in

the exemptions of section 2

below,

aAny

application for i~an~e-ef a

new or modified NPDES permit that

meets the

applicability

criteria of

302.105(b), must

be

reviewed by the Agency to assure that the application adheres ~dh~e~#

to the antidegradation

principles

as contained

in

35

lAG 302.105.

It

is

the responsibility of the permit

applicant to

provide sufficient information

to

allow

th~

Agency

to

complete its

review and

determine the

appropriate disposition ofthe application.

Section 2

--

Excevtions

The business community agrees that the

“exceptions” proposed by

the JEPA

are both necessary

and proper

~fan antidegradation

process

is

to function

in

the

real

world

The

absence

of

exceptions will

bog

the

JEPA

down

in

an

endless

review

of permits

that have virtually

no

environmental

impact.

Further,

because

the exceptions to

the antidegradation

review process

arL’so crucial to

the effectiveness ofthe standard.

the exceptions should be incorporated into die

anudegradation standard

itself

as

mentioned above

in

regard to

our proposed

applicability

subsection,

Section 302.1 05(b.).

The

business community believes that the exceptions should take tu’oforms.

The first should be

those

exceptions

which,

by

definition,

are

excluded from

review.

The

business

communz~

generally agrees with those

exceptions proposed by the JEPA

in

its draft,

and has recommended

language

modifications and

three

additional such

exceptions,

#10,

#11

and

#12,

as set forth

below

The second is

equally essential as

thefirst. It is proposed.by

the applicant at the time ojperniit

auplicarion,

and

is

to

be

determined by the Agency

on

a case-by-case

basis.

The

business

Provosed

cwnmunirv

has

drai?ed

language set

jbrth

below

as

exception

13.

“Excention

12”

together with

the

provosed Section

1

language

establishing

a

aemmimus threshold

address

i~ulustr’: s concern that discharges at the

~loi,’endofpoilution potentiaP’ need not undergo tile

hz/I antideg-radation demonstration reauired in the JEPA

s

implementation procedures.

---

Section

2

—

Exceptions

E::c~pt

as provided herein.

any

proposed

increase

in

pollutant

loading

above

previously

pei~i~ed

levels shall be

constrned as

a

potential

degradation of the rezeiVing water and subject

to

antidezr:dation

review.

The

Agency may

authorize an

activity

that will

not

result

in

an

eNceedance of a numeric

or other nafrative water quality

standard without

an

antidegradation

demonstration for the following proposed actions:

I. Discharges of chloride,

sulfate, and total

dissolved

solids, and the thermal loading that

has been established under an approved Clean Water Act Section

316(a)

demonstration;

I

2.

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

3.

Bypasses that are not prohibited at 40 CFR

122.41(m); e~

4.

Response

actions

pursuant

to

the

Comprehensive

Environmental Response,

Compensation

and

Liability Act

(CERCLA), as amended.

OPA-90,

or similar federal

corrective actions

pursuant

to

the

Resource

Conservation and

Recovery

Act

(RCRA),

as

amended,

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;

5.

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 (WQBELs);

6.

New or increased

discharges

of a non-contact

cooling water provided that the thermal

component complies with applicable Illinois thermal

standards;

7.

Site stormwater discharges provided the discharge complies with applicable

federal and

state stormwater management

regulations or applicable permits, and will

not result in

a violation ofIllinois water oualitx’ standards:

p-~-\Am

~

,01

-

12L

~

W~

~

8.

A

new

or

increased

loadimi that results

in

a

deminimus

increase

of

a

non-

bioaccumulative

pollutant

to

a water

body

which

does

not contain

any

known state or

federally

classified

threatened or

endangered

sDec:es.

and

which

is

not

exDectea

to

result in

a discernable iowerin~ ofwater duality;

9.

Some

fo~

~f z~cffe

~

o~~Xm’olvi~2 a :hird ~a

z~ch ±at±erais

~o

~t

toad

aad ~helird

is ~aforc2able±:ou~h±eNPDES pe~ir

New

•w

Increa~eu

dischaz-~es or

a

noilurant

w:~ere

THE

PERMITEE

ENTERS

INTO

7OLUNTARY

AGREEMENT

UNDER

WHICi-i

rher~ ~s

a

COh1tfl1)OVfli2t~)1I5

unu enrorc2amc

uc~rc::sc

in

rhc

actual

Ioadin~ of

rliar

~nhirant

---

106

from

sources

contributing

to the same

body

of water such that there

is

no

net

increase in the loading ofthat pollutant;

10.

Discharges

authorized

by

a

site-specific adjusted standard or variance

issued by

the Illinois Pollution Control Board;

11.

A new or increased discharge of a non-BCC chemical where the new or increased

discharge is

necessary to

accomplish

a

reduction

in

the release of one or more air

pollutants,

provided the applicant

demonstrates

that

an

emissions

reduction

for

the air pollutant(s)

is

necessary

to meet a

federal or state air quality star~dard

or

will substantially reduce human exposure to a hazardous air pollutant subject to a

federal or state air quality standard;

12.

A

new

or

increased

discharge

of

a

non-BCC

chemical

if

the applicant

demonstrates

that

the new

or

increased discharge

is

necessary

to

accomplish

a

reduction

in

the discharge

of another pollutant or

pollutant parameter that will

result in

an overall improvement in the water quality ofthe receiving water; or

13.

Any

other

action

which

the

applicant

proposes,

at

the

time

of filing

a

permit

application,

and

which

the Agency concurs will not violate

the antidegradation

procedures

of 35

IAC 302.105. The

Agency shall

indicate

that

a

request for

exception

was

requested, as well

as

their decision

regarding such request, in

the

fact sheet for such permit.

S’cction 3A

Demonstrations/Criteria

The

business comnmz,niry agrees, in principle,

ivith the IEPA ‘sproposed Section 3A.

However,

in

order

to flirther

cZar

~fr

the

section

and

make

the point

that not

each and

evey

theoretical

abrernative need be explored, the business communitt’would suggest thefollowing modifications:

Section 3A

—

Demonstrations/Criteria

A demonstration that a load incre~e

an

increase of a permit limit ofa regulated parameter or

other lowering

of water quality

is

allowable under

the

antidegradation water quality standard

(302.105) will be assessed under the following criteria:

1.

No applicable numeric or narrative water

quality

standard wijl

be

exceeded as a result

ofthe proposed activity;

I

All

aoplicable

water use

aesignatlons

pursuant

to

Illinois

Pollution

Control Board

Regulations. Title

35.

Part

303

shall be ~1-k~

protected:

~There:hzil be

~o ~eerior:tior

~vZt:r

Cm~Un~r’.’Jiy~r:i::

Jr

I

~f

:2~r:2’.2 ::~c:

rr

c1udi~

~:~e ~r f~derilv

2::2::::eu

:h~:rred

~r

---

3.

Economically

reasonable

and

technically

feasible

aAlternative

approaches

to

accomplish the social or eccuomic benefit intended to result from the permirted

activi~.

with

minimal

load

increase

or

enviroamenta!

disruption

shall

be

identified

and

evaluated. All

reasonable

alternatives shall be

incorporated into the proposed

activity

to

minimize the extent ofload increase

or other potentially degrading result; and

4:

The

b~eflt

economic

or social

development to

be achieved through

the proposed

activity shall pertain to the community at large; and not exclusive

to

limited indi’Idual

entities. For instance,

economic

de’.’elopmentcan be

characterized

through

increased

employment opportunities and increased tax base within the commumtv

Section 3B

--

Demonstrations/RequiredInformation

The business community understandsSection

3B to identgy information which the IEPA believe.s

it needs to begin antidegradation determinations on proposedor new increaseddischarges.

The

ZEPA has statedthat,

consistent with

its current practice,

the integration ofthe antidegradation

standard into the

permitting

and

cert~fi

cation

process

must be

interactive.

The

business

community 9grees that it is advantageousfor

the applicant and the Agency to initiate discussions

veiy early in the permit

application

process.

This

is

necessary

to

allow

ample

time and

opportunity

to

determine

the potential effects and benefits of the proposed new or

increased

discharge,

and

to

review the proposed discharge

in

terms of antidegradation.

The

business

co,nmunuv further agrees that the Agency should have the information that it needs

to

ii’holliv

fulfill its

oblicrations.

In an

effort

to

achieve

a codification of this type of interactive,

informed

pracess.

the business

community

would

suggest

the following

modifications

to

the

LEPA

‘s

proposedlanguage:

Section 3B

—

Demonstrations/Required Information

Information necessary for

a

ad-is

-ease an increase of a permit limit ofa regulated

parameter

or other potentially degrading activities that should accompany an application include:

1.

Identification

of the

affected

reach of water to

receive the load

increase or othenvise

affectedby the proposed activity;

2.

Identification and

quantification

of the

parameters that will experience

an

increased

loading

or

other

potentially

dearadinu

resuit

within

the affected

warerbodv

(For

instance,

in

situations such as

a

401

certification

for construction

activity

within

a

stream:

identify

and

characterize

how stream aeration

and

oxygen

concentrations

will

be

affected.);

The purpose and

anticipated

benefits of the proposed activity.

Such benefits

include

but are not limited

to:

a.)

Proviuintz

a centralized

wzsrc’xarcrcailecrion and treatment for:: orc’.iousiv

unsc:ver&i community:

---

i06

b.)

Expansion

to provide adequate service for reasonably anticipated

residential

or

industrial

growth consistent

with

a

community’s

long

range urban

planning;

c.)

Addition of a

new product line

or production increase or modification

at an

industrial facility;

d.)

Increasing or retaining current employment levels at a

facility.

(Fi~tance,

benefits

could be

provision ofcentralized wastewater.collec:ion and treatment

for a prv.’iouslv unsewered communiP.’; exans:on to provide adequate se~’icefor reason~blv

anticipated

residential or industrial

gro~h

cansistent with a community’s long

range

urban

planning; addition ofa new product line orproduction increase at an ind~trial facility); cnd

A

description

of

t4:he

various

technically

reasonable

and

economically

feasible

alternatives evaluated by the applicant which are intended to

accomplish the desired

action that result in less of a load

increase

or no load increase, and an assessment of

the

reasonableness

of each

alternative?;

and

(Alternatives

can

include

additional

treatment

levels

including

no

discharge

alternatives,

discharge

of waste

to

alternate

iocatio~

including POTW’s

and

streams

with

ereat&

assimilative

capacir.~,

manufacrnring practices that incorporate pollution prevention tec~iques.

~.

Such

additional

information

regarding the characteristics of the receiving body of

water that

the applicant

believes

is

not otherwise available

to the Agency

and

is

necessary to allow the Agency to

fulfill its obligations under this part.

Section

4

—

Discharge to Outstanding Resource Waters

The Board Regulation at Section

302.105(c) specifies that Outstanding Resource Waters shall

not be lowered

in

quality through any action

subject to

NPDES or Clean Water Act

Section 401

water quality certification requirements. New

sources

or load increases

from

existing

sources

will not be allowed unless the Agency makes a determination that:

a)

All existing

uses ofthe water will

be fully protected:

b)

The

new or increased discharge

is

necessary

for an

activity

that

will

improve water

quality in the Outstanding Resource Water: and

c)

The improvement could

not

practicably

be

achieved

without

the

ne’.v or

increased

discharge, or if the proposed discharge involves:

I. Non contact coolintz \vater in

cm

a’rewith aoclicable :herrnai ~tandaras: or

2.

Dircharce

(Di

~iite storrnwzter

:m;nu

subiec:

:o

federni

z:Dd

¶ate

storrnwater

jianaueme:~r re2uiations.

4.

---

Section SA

—

Initiation ofReview Process

The

business community recommends

the deletion

of Section 5A from

JEPA

‘s draft proposaL

We

agree

that early

initiation

of the

interactive

process

between

the permit

or

cert~flcate

applicant and the Agency is essential

tO

the effectiveness of NPDES permitting or certification

processes.

But,

it’e do not

agree

that

this

activity needs

to

be

specifically prescribed

within

formal

implementation

guidelines,

as a

deviation from

such

activity

by the

Agency

or

the

applicant is not equivalent to

afailure to

comply with the antidegradation standard

Section SA

Initiation

of Review Process

Applicants

should initiate

early

communication

with

the

Agency, preferably

during their

planning stage for any significant expansion or new source.

Early communication will generally

help

assure

the adequacy of information necessary :o

constitute an

adequate demonstration

and

avoid or

minimize

delays

and

supplemental

information

requests

durina the permitting

stage.

The Agency review process will be initiated by:

1.

request

~.

proponent ofa project prior to flung of a permit application; or

2.

receipt of an application for>~DES issuance or Section

101

ce~iflcation

Section SB

--

Results ofReview Process

The

business community understands

that

the end result

of an

Agency

review ofa

request to

lower water

quality will

be

a

written

analvsis

addressing

each

criterion

listed

in

Section

3.

Bused on that analysis,

the Agency will reject or accev

the proposal in

whole or in part.

or will

work with

the applicant

to

mod~fr the proposal

to

make

the project

workable.

The

Aoencv ‘s

final decision in

this regard

will

be

routed through

die existing iVPDES and 401 public

notice

processes.

The

Agency does not intend

to

initiate

a new and separate process specificallyfor

antidegradation

reviews.

The

‘business community

believes,

while

the

LEPA

‘s proposed

language

describes this process,

the following language

would make

the process more clear to

NJ’DESpermnitor certificate applicantsas ii’ellas to the public.

Section

5.B

--

Results ofReview Process

The Agency’s review of demonstrated

need for a lowering of water quality will

yield a

written

analysis addressino each criterion contained in Section

3. along with a preliminary decision.

1.

If

the

au-’~

Agency’s

preliminary

dec:s~on

is

to

relect

the

applicant’s

demonstration

or to

find

that some

lowering (but

less

than

the original request of

the appiicant through

the use of ~easonabiv available alternatives) ofwater aualitv

is

allowable,

the Agency shall provide

:i

th~

written

analysis

•22~1 be

jcv~ dad

to

the

applicant. The Acencv

xviii

be

avajiabie

to

consult

with

the

ao:iicant

reaara~n~i

any

aenctencies that led to

the

Ji&~-p-n

9~-a-1

Awnc’~’~

findinit~ as wed as ontions

:0

rernen’:

Conflic:s with the Board standard that led to

the

proposca

re:ecuoi:.

---

i06

2.

If the teiitatP,e preliminary decision is to accept the demonstration and proceed toward

authorization of a load increase, or if the applicant and

the Agency agree that some

lowering

(but

less

than

the

original

request

of the

applicant

through

usage of

reasonably

available

alternatives)

of water

quality

is

allowable,

the Agency

will

proceed

with

the

public

notice

process

of

the

NPDES

permit

or

Section

401

certification and include

the written analysis

as a part of the

fact sheet accompanying

the public notice.

1.

If the acency

review yields the tentative decision that

some’lowering ofwater qualit

is

allowable,

but

less

than the

original

request

of

the

applicant

through usage

of

reasonably available alternatives (i.e.

application of additional

trea~ent,

relocation

of

disc~ge

to

a less

sensitive location)

and if that reduced loading increase is acceptable

to

the applicant, then the Agency will proceed to public notice

4.

If the reduced loading

allowance

is

not acceptable to the applicant or

if

the Agency

intends to reject the applicant’sdemonstration, the Agency will

transmit its

written

analysis to the applicant.

If this

occurs

after receipt of the NPDES

permit application

or 101

certification request, this will

be provided in the context ofan NPDES permit or

certification denial.

Section 56--

Public Participation

The

business

community agrees that public participation

is

vital to

the success of the

iVPDES

permitting

and cert~fication process.

We

have consistentlysupported efforts to make theprocess

inure

transparent

to all

affected parties,

including the

public.

The

business

community

understands that the Agencv ‘sdecision to

tentatively authorize a load increase or to

lower water

quality

will be

subject

to

the

notice

and review

procedures for

iVPDES

permits

or

401

cL’rt~fications,

not

via new or

added processes.

Further,

we

understand

that

the

Agency ‘s

current fact

sheet

will

be

expanded

to

include

information

pertinent

to the

antidegradation

review. The

business community suggests thefollowing language rnod~fications and additions to

the

ZEPA ‘sdraft

language for

inclusion

in

the fact sheet

in

order

to

ensure

that the public has

access to information that is both relevant and helcfi,l.

Section 5C

--

Public Parricipation

If the

Acencv

preliminarily determines

to

authorize

a

Load

increase

or

other

action

that

may

result

in

a lowering

of water quaii~.

public notice

and

comment opportunity

will

be

achieved

through

the public notice procedures followed

for

issuance ofNPDES

permits

(35

IAC 309.109)

or

Section

401

water auaiity

certifications.

To

assure

adequate

information

for meaninaful

public

review and comment. the Agency

win

incornorate the foilowina information into

a

fact

sheet accomDanving

the nublic notice:

1.

A. ucacriDlion

‘M :~e

activitY.

mcluciinu

:~1eau:1cat1on

01

watCr

Utm!ltV narameters which

wijL

ex~erjence an

increasca mass

&i:~c:1artz~:

---

2.

Identification

of

the

affected water

segment,

any

downstream

water

segment

also

expected

to

experience a lowering of water quali~,

characterization ot

the designated

and

current uses of the affected

segments

and

identification of which uses are

mo~t

si~tP~re

adversely affected by

t~ the proposed activit

orload increase;

3.

A summary

of

any

review

comments

and

recommendations

provided by

Illinois

Department

of Natural

Resources, local

or

regional

planning

commissions.

zoning

boards and any

otherappropriate

entities the Agency consults regarding the proposal;

4.

An overview of alternatives considered

to

accomplish the

propose~I activity (including

resulting

social/economic benefits) and

identification of any provisions or alternatives

undertaken

by the applicant or imposed to

lessen the load increase or other lowering

ofwater quality associated with the proposed activity;~

5.

An overview of

the purpose and anticipated benefits ofthe proposed activity; and

6.

The name and

telephone number of a

contact person at the Agency who can provide

additional information.

---

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U~~)

Federal

Bmgister

I

VoL

58.

No.

72

I

Friday,

Apxil 16,

1903

/

Pwposed Rulas

quAlity watem d tho Great

IAkOS

Systtim.

~.

Rakztiomldp ofREQ to

implementrzfio~ Procedure 8.

t)uring

dov.lopmtrnt oftbeEEQprovisionz in

fiio proposed Guidance. concerxiswere

expressedx~gordixg EEQ limitations or

re~rIctiwis tMt ieflectod iioz~dotei~tab1o

discba~g~s. Iiiparticulat. the

ial*itionship between the EEQ

requirements ofthe Antidngndation

Policy and the iuqidremezits of

pwc.duru 8czfappendix F to part 132

was questioned. and concerng reised

that Ih, ~EQ requirements would

noces~tato fish bia-uptaka studies

(p?ucadurea.F.i of appendix F). EPA

believes thatthe ~Qnd

iwOCOdurO 8

of appendixF provisions i~perut

independently end thatfish biouptake

stuaia3 Will not

flBCOS6SflIy

Z~SUlt from

the applicatioz~ ofEEQroqu~remants.

Piocudure B ofappendixF roquii~es that

permits include wztsb~ provisions 11th.

WQBEL ~oia pollutazitis below the

detectionI.t.t For DCC., ou

of these

provisions is a liahblo.iiptake utudy to

determine Uthe ~iscbaigo

of apollutant

is occurrizag at; Kite or level that z~su1ts

u~uzzazcsptabIu accumulation ~n~s1~

tissug.

The

lequireniunts of procedures

ofoppundixF. including fish bio-uptnk.o

studioa,only apply wlmnthe regulatay

pruceduzes Send 5 ofappon

F, ih~t

aWQ~EL for the DCCin quoslioi is

Like the

mp1~mnzaUoaproceduru5.

AntidegradstioaPolicyeko dir,ct that

controls be played ontb. dimchaxge of

-

BCCa.

Thu ro~uIatoIyagency u~ay

chaos, thatthe controls take the.h~rm of

oumeaic effluentIimltsZianB, or may

chaos. to

~

oibaruzodinnismns to

~aint4iuEEQ fotthu DCCs. such as

were ~Jiscussed

uuder Options i~irEEQ

ontro!s~Th. basis for th~

estrictions. whatavorthafr fotni. is to

~~rvent

thu eigni~cmnt lnweting ofwater

piality. The EEQrestrictions wio Riot

,asod on zmplauwnfatiau pracsdtzrus 3

~r5ofappendhs~F~Th.ydo not

~anw~aUy

talr.s the j~1ace a!WQBEL

levoloped.puzmzaiit tothese procediu~ss.

soqum~tIy.th.ywott1d geDBTuUy not

subjectto the fiah blo-uptek. study

.quirwnants ofpzacsdur.8 of

ppeudlxF. The

atoky~goncy is

Iways *~ tozoq~wiru o.~xptnkn

zudios bi caujimction withEEQ

~quiremeutz.

but much studios are ulot

midatodbytlzis

ropasedGuidanca.

EPA is iwazo atonly ono

.rcumstah~Cehi wbic~x REQ potmit

mditions would necessadly require

we offish bin-uptake studies, and

a,

would

result notfrwu thin

itidegradatiwi requix.uwnt5. but

because

the regulatniy ageziiy

would

hay. choaon to usg an EEQ limit In

a

permit

in

place of an athonvise

nsceuaryWQDEL A rsgulataiy agexwy

m#y chaos. to includn numeric EEQ

effluent limitations for a DCC. which

wrnt)d otherwise be requirod to

be

limited

by a

WQBEL

developed

purnant to procsdiresSand 5 of

uppoxidix F. IftheEEQ limit was more

restrictive than the WQBEL and would

ensure compliance with thu WQBEL~

then the agency may choose to use Itin

the effineiRt Iimit8 table as a substitute

far the WQBEL. Wbm. such

n

applitition of~EQ requireda limitation

that was below thu detection limit, the

zegulatoiy agency would have to apply

procodurs 8 of appeiidixF, induding

the B~h bio-uptako studios.

EPA bs1~o~va~ that the

Antido~radaUon

Policy and implamentatirm procedures.

an written, lead to the above

czrncluaions. EPA would welcome

conmwnts aud suggostinus on how to

iem

am~i

PAwould also

wulcome commnuts on whehuror not

thuproposedGuidance shouldbe

chaz~gedtozequix.fishblo-uptake

utudiot

iii

oonjwxdion with EEQ

xequfrem.ntn for noudotoctable BCCB.

E. D~M aimi~Low.dn

of

Water

O~i~y

1.

Background

EPA and the Gi~at Lakos Statos, in

prioritizinguituaUon~ that would ho

cwisidwred aigniflrant Ioweri~g ofwata~

quality in IIQWs. drewa djSUz2diwl

between BCC

and ot1wpoUtitui~ts.

As

discussed in d,tall above. aigulficant

loweringofwater qua!hy for BCCs

focuses on EEQ. In cwitrast. for

pollutauta other tium DCC, (“lion-

~CC1

din definition of sigmificant

loweringof water quality keys offof

ixaoasss In p.naltlimits

1 wid allows

exemptions for de wfnim~s increases

and inczwses that resnit

In

no cbange

in

ambient concentration outaid, of any

appilcahi.

mi~dz~g zone.

~emDhIniaB~t~1Sa,.Tieso~

alinria that .wne that thu lowering of

w&tw quality doet x’otres4t froni.

ICC. wnd than ums

the degree tn

whir~li waterqualityIs lowwred by a

poI1ut.i~t. in ~omparisan

to theAbility of

ti~o ivatszbody to assiiijil*tn the

-

pollutnt. Use of the do mil2imis testto

oxompt an adion from an

antidoSzahi8tlOn reviewisa

d~saetionuy decisiozi of tho Dlkednr,

Even when tb. lowuriiag ofwater quality

for a particular aituatiou (i.e.. a specific

poUunnt

in

a partiGularwatmrbody) zny

be caz~zidarod do mininls and thmfrzre

not

subjuct

to entid.padaUoa

damonstratioa requirements.

i~z~ may

still

be co~sfraints on relaxing the

limitation fo,the pollutant in question

becusea!thu rsquin,mwntsofthe

lrnplnznentuliou procedures. such ~s

hosu for znnrgrnsof isfuty.

Z. Detailed

D.scripdozi of Do Minlmis

Test

a.

Spccifk Tests Includedin De

MiJ2iads Demonstration.

Far sub~t~r~coa

otbnrthaii DCCs. a low

ofwater

qiialitymay be

CODSIdBYOd

ruinimis

if~

1. TheIow~in3 ofwater quality ~‘ses

loss than 10 perCentofiha imu~ed

assimilative

zpadty

end

ii.

Forpoliutants irwhidu~

on

Table

5

of

propoaed 6OCtian 132.4. at lout 10

pnww~t ofthe totni sssiniihtive capacity

zawaius imizied a[t~r

di. loweringof

carcitY. wbiz~h

ytorecuivo

the diac~nr8s ofpaliutants and still

atlain applicable waterquality

utndm~ds~ Thototal assiuiilaUve

capacity is dutwmiiued

as

thu prodnzt of

tke applicablo wato

quality vxitezia

times thu~iticaIlow flow,or

d~1gnakud mixing volume in the case of

lakes. forthowat~body in th* szea

whor

thu watot ~usliyj~ropouedta

-

be lowolfid. expressedas a mass loading

rat. Thu uuiusadIs8imilative capacity is

that un~olmt ofthe tatinl esuiiuilativu

cap.ckynot utilizedby palnzsou~c.

aud noupoht,ource diacbargsu

includiuS b.ckpoimU. The unused

assiullalive capacity is estabIin)~ed a:

the tim. the requoai to Iowoiwat@i

quality is coziside~mL The tatal

assimUative tapadty should remain

relatively constant

av~ time, chnnging

only

as

the

ippikiblo

critada

changa cir

the

criticallow flow ofthe x~vsivfng

watei chnges. forins~nce, due to

phyzical diwrsiozz~ or newflow data

used to calculata the criticallow flow.

The imused assimilative capacity will

be zodofliod 08d3 lime ado miz~tniia tost

~sconducted and mayizu2unEe or

doczoa~p duo ta,fwinstanc.,

improvements iz~water quality.

or

incaeas,d uses ofthe watorbody.

•voIy.EPA z~ocognizes that~mo

willnot be amenable to this

procedure foi calcujating totni

assimilativo capacity (e~g.. pH. color.

ElkebDity. dissolved oxygen.salinity.

temp.ra±inu).

Fo~wch pollutants

the

Diructo?

houid omploy uther

techniques to d.tsinIne total

usslnilWivoczpacfty,5

appropriate.

With the fizt do

minimJ.~

~1W~iaD

Laiws 5ta1n5 and Tribeshave .atnblAulzud

a threshold belowwhich thE Iowo~ing of

W902

v~fat&

qui

siuific&

thorough

proposed

Jawers

1’(

perCent0

JIOVO beex

new actic

ifl$iBflifiC

detormin

antidegra

tiw Great

believe ti

.sthetbz

balance b

re~ar

of actiarn

;ubjncted

a~it~degra

zequkea~

and

indlvidu

qunlityk

10 pSrGS?

capacity~

rochiVii2~

afl exiziji

has the a]

a

do

min

action irn

demArnt

i~1uimati

that

sugg~

quality 51

Sj~aI

anmdiv~

have toli

lowering

considen

ibe firstt

sUeamw

ussindkt

par day.

I

havbse~

Prosumfr

—U

iorthets

F~ ulay.

8

pOInIfIBF

miniu

coD~mO~t

up.dafl:

1I~DS1

~i~dby~

d.ciEiLm-

liii StMS

diolvs of

The so~

pollutant

the imp1~

pz~3—

are IIStUd

132.4; th

F of tbis

C

-p

t

lf

I.

I

a-

I

---

I—

-

~J.~)I ~J)

Federal Register

I

VoL

58,

No.72

I

Friday, April 16.

1993

I

Proposed

Rules

water quality may not

be considered

significant enough to warrant.

thorough entidepadation review. ItIs

proposed that a single action which

lowers waterquality less than ten

rcent of the total amount thatmight

rave been available to azxommodate all

new actions couldbe considered

insigni~cant by the Director when

determining ifthataction must satisfy

autldegradatlon requirements. EPA and

the Great Lakes States and.Thijes

believe thatthe 10 percent value chosen

as the threshold represents a reasonable

balance between the need ofthe

regulatory agencies to limit the number

ofactions involving non-ECCe that-are

subjectedto the detailed

mntidegradation demonstration

requirementsand the needto protect

and maintain waler quality. In

particular, it is believed thatany

individual decisionto lowerwater

quality fornon—ECC

thatis limited to

10 percentof the ~mused

assimilative

capacity

representsminimal risk to the

receiving waterand its ability tosiapport

eli existing uses. The Director always

hasthe ability to override the results of

a do minimis test to determinethatan

action must satisfyentidegradalian

-

demonstration requirementsif

information is available to the

Director

that suggests thatthe loweringofwater

-

quality should be considered

aignificeuL Notealso thateach

successive lowering ofwater quality

on

an individualwaterbody segment will

have to be smaller than the previous

lowering. In absolute terms, for it to be

considered de minimuls. (For example.If

the fIrst time thatwaterquality on a

stream were lowered, the unused

assimilative capacitywas

100

pound;

per day. the de minimisamountwould

have been up to lii pounds per day.

Presuming an action went forward as do

minimis, using 9.5 pounds perday. the

resulting unused assimilativ, capacity

forthat segmentwould be 90.5 pounds

pet day.

The

nextaction would have to

involve an increase ofless then 9.05

pounds per day to be considered de

ininimis. and so eLI EPA welcomes

commenton this criterion and is

especiallyinterested In examples ofdo

arunimis thresholdsthat are currently

used by States or Tribes in water quality

decision-making, and the rationale that

the State or tribe relied upon in the

choice of the threshold.

The second criterion involves

~illutantsthatwould notbe subject to

implementation procedures In this

proposed Guidance. (These pollutants

axe listed in Tables of proposed sedioll

132.4;the reader is referred to section IL

F of this preamble for a discussion of

these pollutants.)This criterion ensures

that a margin of usfaty (MOS) Is set

aside for such pollutants so thatthe do

minimis lowering ofwaterquality

cannot utilize the entire assimilative

capacity. Under thin criterion, an action

involving non-GLWQI pollutants may

be considered da miulmis only (fat least

ten percent of the total assimilative

capacity remains~mused

afterthe action

eccur~

All pollutants that are covered by the

implementation procedures axe subject

to the requirements related to

fidDLe,

WLA. LAs and margins ofsafety

(MOSs). In particular, the MOS

requirementswould set asidea portion

ofwhat the do minimis testterms the

imused assimilative capacitywhen

decisions are made regarding discharge

limitations. Actionsthat resultin a

loweringof water quality.the size of

whichmight be considered de minimis

under the antidegradation procedures.

mightnot be allowable under the

implementation procedures, becausethe

eso~

tiiecuZge

mass loadingrate limits. In this manner,

forthe GLWQI pollutants, the

Implementation and Antidagradation

Procedures complement each other to

ensure that do minimis decisions would

not use up the entire unused

assimilative capacity. However,as

discussed below, under‘•3.Issues”. EPA

has concerns regarding the effectiveness

ofthis procedureand Is Inviting

comment on an additional alternative.-

b.

Examples.

The following examples

illustrate how the de minimistest

worke

i.

Example 1.

Iu a stream tributaryto

a GreatLake. the most stringent

water quality standards for

caKmiumis 1.6 ug~L. The criticallow

flawof the streamis the 7Q10 of 300o

cfs. The resulting total assimilative

capacity of this stream for cadmium is

ig pounds per day. At the time the

request Is made to increase the loading

ofcadmium to the stream, existing point

and nonpolutsources andbackground

contribute 14 pounds of cadmium per

day to the stream segment, resulting in

an unused essimilative capacity of 15

pounds perday. Provided that the

Increm sought Is less than 1.5 pounds

per day, the Increase maybe

considered

de minimis.

ii.

Example 2.

Fota discharge directly

to a Great Lake. the total assimilative

capacity isbased an an allowable

dilution of IOta one. Assuming thatthe

background concentrationof iron wasU

ugiL, to meet a chronic water quality

standards forIron of 300 ugIL the

effluent limit

for iron wotaldba 10 times

300 ugIL. which is 3.000 ugIL (or three

mgIL). For; discharge of oneMG!), the

maxImum allowable load is 23 pounds

~AneTyuts

of available data shows that

the background concentrationofiron

attributable to all pointand nunpoint

sourcesis 100 irgIL. Thare&rre~, tire

unused assimilatrvecapacity is 300—

100 or 200 ugIL.whichtranslatesto 17

pounds ~day.

The de urinimis

for the one MCD

discharge is 10 percent of-17 pounds per

dy.orL7poundtperday.

lributauy to

a GreatLake. the dissolvedoxygen

standard (a Table 5 “excluded”

pollutant) is four mgILat criticalIlow

and temperature conditions. The

existing daily average dissolved oxygen

in the stream is sixmg/L The untried

assImilative capacity

Is

two mg/I.. The

de minintis dissolvedoxygen impact is

10 percent of two mg/I. or 0.2 mpIL An

assimilative capacityanalysis o

the

tributary in questionwould be

conducted to identifythe biological

oxygen demand (NODs) load thatwould

achieve fouring/L.sIx ragIL, and the

load increment that1. equivalentto 0.1

mg/I.ofdissolvedoxygen Impad.A

-

BODe loading increase thatcorresponds

oxygeuimpact

couldbe considered de.niiniinls.

because 10 percent ofthe total

assimilative capacity remains unused.

In contrast.ifthe existing dissolved

oxygen was 4.4 mJ~L. then no Increase

in NOD could

minimisbecause

more than 90 percentofthe total

assimilative capacity would be utilized

afterthe increase, i.e.,the resulting

dissolvedoxygen would go below 4.4

mg/I..

3. Issues

During the GLWQITechnical Work

Group discussions regarding the useof

ada minimis testand the criteria that

should define it. numerous Issues were

deliberated, and severalalternatives

considered. In addition to comments on

the do minimum

testlaid out In the

proposed Guidance, EPA solicits

comments on the issues and decisions

discussed

below. Also, as discussed

above, underC.3 “SignificantLowering

ofWaterQuality”, EPA is inviting

comment on whether the use ofthe de

minimis test should be extended to

DCCa. EPA is interested in suggestions

regarding any changesthat shouldbe

made to the do minimis tests to address

BCC

if such a change were made to the

proposed Guidance.

a.

Use ofAssinrflative Capacityin LA.

Minions Decision.

EPA notes thatthe

assimilativecapacity described above Is

functionally the same as the loading

capacity that Is defined in the Federal

orem~y

he

-jeetioui

he

has

nimis

Je

~stancos

later

~imis

~,

uses

ad

Table

5

it

10..~

rnpaclty

:gof

-

-s

tvhich

:ewe

ill

caseof

35

ad4o

oading

acityis

ye

rca

d

dat

r

d

in

.ging

3~e

OT

*

its

ow.

vill

Is test

TOTflL

P.t~3

---

CERTIFICATE OF SERVICE

I, Christie M. Bianco, theundersigned, hereby certifies that copies ofthe COMMENTS

OF

THE CHEMICAL iNDUSTRY COUNCIL OF ILLiNOIS

were served upon those persons

on the attached service list by depositing said documents in envelopes affixed with sufficient

postage into the U.S. Mail on the l9~ day ofMarch,

2001.

~4!/Yi/3/aAlco

Christie M. Bianco

SUBSCRIBED AM)

SWORN TO BEFORE ME

This

19th

day ofMarch,

2001

Notary Public

‘OFFICIAL SEAL”

JANET

KLESZYK

NotaryPjbFic,

Stateof

II]ino~s

My Commiaa~on Expiree

07/30104

---

Ms. Kay Anderson

American Bottoms RWTF

One American Bottoms Road

Sauget,

IL

62201

Service

List

Mr.

Frederic P. Andes,

Esq.

Barnes

& Thornburg

2600 Chase Plaza

10 South LaSalle Street

Chicago,

IL

60603

Ms. Karen Bernoteit

Illinois Environmental Regulatory Group

215 East Adams Street

Springfield,

IL

62701-1199

Mr.

Bill Compton

Caterpillar, Inc.

100 N.

E. Adams Street

Peoria,

IL

61629-3350

Ms. Christine

Bucko

AAG

188 West Randolph, 20th Floor

Chicago,

IL

60601

Mr. Jack Darin

Sierra

Club, Illinois Chapter

200

North Michigan

Avenue, Suite 505

Chicago,

IL

60601

Mr. Albert Ettinger

Environmental Law

& Policy Center

35 East Wacker Drive, Suite 1300

Chicago,

IL

60601-2110

Mr.

Daniel J.

Goodwin

Goodwin Environmental Consultants,

Inc.

400 Bruns Lane

Springfield,

IL

62702

Mr. James T. Harrington

Ross & Hardies

150 NOrth Michigan Avenue, Suite 2500

Chicago,

IL

60601

Mr. Ron Hill

Metropolitan Water Reclamation District

100 East Erie Street

Chicago,

IL

60611

Mr.

Richard Kissel

Gardner Carton

& Douglas

321

Norhi Clark Street, Suite 3400

Chicago,

IL

60610

Mr.

Jerry Paulson

McHenry County Defenders

804 Reginact

Woodstock,

IL

60098

Ms.

Nancy J.

Rich

Katten Muchin Zavis

525 West Monroe Street, Suite 1600

Chicago,

IL

60661-3693

Ms.

Susan M.

Franzeiti

Sonnenschein

Nath & Rosenthal

8000 Sears Tower,

233 South Wacker Drive

Chicago,

IL

60606

Ms.

Dorothy Gunn

Clerk of the Board

Illinois Pollution Control Board

100 West Randolph Street, Suite 11-500

Chicago,

IL

60601

Mr. John M. Heyde

Sidley & Austin

Bank One.Plaza

10 South Dearborn Street

Chicago,

IL

60603

Ms. Katherine

Hodge

Hodge & Dwyer

808 South Second Street

Springfield, IL

62704

Ms.

Sharon Marie Neal

Law Department

CornEd

-

Unicorn

125 South Clark Street

Chicago,

IL

60603

Mr.

Irwin Polls

Environmental Monitoring

Metropolitan Water Reclamation District

6001

West Pershing Road

Cicero,

IL

60804-4112

Ms. CindySkrudkrud

4209 West

Solon Road

Richmond,

IL

60071

---

Service

List

Mr. Jeff Smith

Abbott Laboratories

1401

North Sheridan, Deptartment 072N,

Building P14

North Chicago,

IL

60064-6239

Ms.

Connie Tonsor

Division

of

Legal Council

Illinois Environmental Protection

Agency

P.O.

Box 19296

Springfield,

IL

62702

Ms.

Georgia Vlahow

Department of Navy

Naval Training Center

2601 A Paul Jones Street

Great

Lakes,

IL

60088-2845

Mr. Chuck Wesselhoft

Ross

& Hardies

150 North Michigan Avenue, Suite 2500

Chicago,

IL

60601

Ms. Marie Tipsord

Hearing

Officer

Illinois Pollution

Control

Board

100 West Randolph Street, Suite 11-500

Chicago, IL

60601

Mr. Phil Twomey

Admiral

Environmental Services

2025

5. Arlington Heights Road,

Suite

103

Arlington Heights,

IL

60005

Mr. Jack Welch

Stateside Asscoiates

2300 Clarendon Boulevard,

Suite 407

Arlington, VA

22201

Mr. Stanley Yonkauski

Illinois Department of Natural Resources

524 South Second

Street

Springfield,

IL

62701