IN THE MATTER OF:
BEFORE THE
JIJTION CONTROL BOA~
S
CLFP~’S
j~i
£ OF
2
o
OFFICE
ILLINOIS
2Q01
35
REVISIONS
ILL. ADM.TO
CODE
ANTIDEGRADATION
302.105,
303.205,
303206
RULES:AND
(Rulemaking-Water)
RO1-13
pollution Control Board
106.990 —106.995
)
)
)
Post Hearing Comments ofEnvironmental Grouvs
Prairie Rivers Network, joined by Environmental Law
&
Policy Center, Friends ofthe Fox
River, McHenry
County Defenders, and Sierra Club, submits these post-hearing comments to
highlight and emphasize several critical points.
The hearing held by the Illinois Pollution Control Board on February 6, 2001, focused on
three issues that have been much addressed at all three hearings held by the Board:
1~the appropriate
“exceptions” to antidegradation review; 2~whether “de minimis” and “significance” tests should be
grafted on to the Illinois EPA proposal; and 3~designation of Outstanding Resource Waters or
ORWs.
We urge the Board to reject the numerous proposals that have been made for exemptions,
significance tests and de minimis tests that would short circuit regulatory controls in the name of
flexibility. We have supported much of the flexibility that the Agency has built into its original
proposal, trusting that we, the Agency, and other interested parties will be able to work together to
strike the proper balance betweenclean water, growth in our communities, and continued economic
prosperity in
Illinois. Further, we believe that the regulations regarding designation of ORWs
should preserve flexibility for the Board as it weighs the merits ofgranting additional protections to
waters ofexceptional ecological or recreational significance.
Illinois, for better or worse, has seen massive alterations of its landscape, and corresponding
historical
changes in its hydrology, water quality, and diversity of aquatic species. According to
Illinois EPA’s most recent 305(b) report, over one third ofthe stream miles assessed in Illinois are
impaired
in some way
(Illinois Water Quality Report 2000;
IEPA/BOW/00-005; Illinois
Environmental Protection Agency, Bureau ofWater; April 2000). Less than 2% ofthe state’s
stream miles are rated as “Unique Aquatic Resources” or Class A streams and less than
15%
ofthe
state’s waters are rated as “Highly Valued Aquatic Resources” or Class B streams
(Biological
Stream Characterization: Biological Assessmentofillinois Stream Quality through 1993;
IEPA/BOW/96-058; Illinois Environmental Protection Agency; November 1996).
According to data collected by the Illinois Natural History Survey, less than 1,000 miles of
Illinois’ 30,000+ miles ofstreams support diverse aquatic communities, harbor populations of rare
aquatic species or are otherwise considered “biologically significant.”
(Biologically Sign ~ficant
Illinois Streams;
Project completion report F-i l0-R; Illinois Natural History Survey; September
1991)
)
)
)
)
These statistics are telling. To the best ofour knowledge, one third ofour assessed streams
are not meeting the goals the Board and the State ofIllinois established for water quality. Because
ofa variety offactors, a very small percentage ofstreams support “biologically significant”
populations offish, mussels, and other aquatic organisms. The Illinois Department ofNatural
Resources has found that one in five fish, one in five crayfish, one in three reptiles and amphibians,
and over half the freshwater mussels present at the beginning of the 20th century were listed as
threatened,
endangered, or extirpated from our state at the end ofthe 20th century.
(The Changing
Illinois Environment: Critical Trends;
JLENRIRE-EA-4/05 (SR); Illinois Department ofNatural
Resources; 1994; page 22)
Since Congress passed the Clean Water Act in 1972, much progress has been made to
restore
some of Illinois’ most polluted waterways. This progress is largely due to the emphasis that
has been placed on improving the chemical integrity ofthe state’s polluted waters.
Of course, the Clean Water Act was intended to go beyond numerical measures ofvarious
chemicals and
pollutants. The objective of the Act “is to restore and maintain the chemical,
physical and biological integrity ofthe Nation’s waters.” (33 USC§ 1251(a)) One ofthe keystones
to restoring the physical and biological integrity ofthe Nation’s waters is a state’s antidegradation
policy.
A state’s antidegradation policy is intended to create a process by which existing uses ofour
waters are protected (such as aquatic life, swimming, fishing, etc...), and by which waters whose
quality
is better than the established numerical goals are maintained and perhaps improved.
Antidegradation is the backstop to making decisions which ultimately determine progress towards
the
objectives ofthe Act.
Beyond setting up a process for making informed decisions regarding the management of
our waters, a state’s antidegradation policy establishes a mechanism for protecting those waters that
exhibit exceptional ecological or recreational significance. It is critical that this mechanism be fully
capable
of protecting Illinois’ rich natural heritage as well as the purity ofkey recreational
resources.
Exceptions to Antidegradation
We urge the board to not adopt any additional antidegradation exceptions. Many ofthe
exceptions proposed by other parties cover activities which would be expected to receive only a•
rudimentary antidegradation review by the Agency. But even this rudimentary level ofreview may
be
important in some cases. It is preferable to have a rudimentary review ofthe potential impact to
existing uses and water quality that is expedient and catches obvious problems, rather than to have a
blanket exception that
would preclude the Agency from making an assessment of any type.
We particularly object to the proposed exception for “Site storm water discharges covered
by a
Storm Water Pollution Prevention Plan as required in an individuaLNPDES permit.” (Jeff
Smith, Feb. 6, 2001, Tr. 28) The development ofthese plans is often included as a special condition
ofan NPDES permit. Howeverthe requirement to create any plan or conduct any type of
monitoring should not be grounds for an exception from antidegradation review. An
antidegradation review is done prior to permit issuance to determine the impacts ofan activity on
2
water quality and existing uses. A Storm Water Pollution Prevention Plan is developed after a
permit has been issued. Indeed, this exception, as drafted, may be based on the existence ofa
condition in a permit which has not even been drafted yet. By analogy, this would be like granting
a
driver’s license on the presumption that the individual later develop a plan for learning how to
drive. The demonstration must be made before, not after, the activity has been authorized.
Furthermore, it should be noted that the Agency does not review Storm Water Pollution
Prevention Plans or investigate their implementation until a site inspection is conducted. (Illinois
Environmental Protection Agency’s Answers to Pre-filed Questions received March, 2001, page
5-
6) It
is quite likely that a discharge from a facility has occurred by the time the Agency even
reviews the Storm Water Pollution Prevention Plan. The Board should reject an exception from
antidegradation review based on the future development of a plan that will likely not even be
examined until after a discharge occurs.
The
same concerns are also raised by the Agency’s proposed exception for general NPDES
permits
(proposed 302.105(d)(6)). According to the Agency there are over 8,678 facilities of
various types covered under five different general permits (Illinois Environmental Protection
Agency’s Answers
to Pre-filed Questions received March, 2001, page 3). To have a blanket
exception for
thousands ofpermits, and the thousands of facilities that will be covered by these and
other
general permits in the future is not appropriate.
There is no public notice when a discharger elects to operate under a general permit. For
this
reason the public is not given an opportunity to review and comment on facilities covered by a
general permit. This deprives the Agency of the opportunity to receive information from the public
about existing uses and other factors that might be revealed if it was an individual permit. More
importantly, it means that the Agency will not even seek this information itself because general
permits will not be subjected to an antidegradation review. Compounding these difficulties, the
general permits which the Agency currently utilizes have never been subjected to an antidegradation
review. For these reasons we urge that proposed 302.1 05(d)(6) be removed or, at a minimum,
revised to
ensure that general permits are not issued on waters where rare or pollution intolerant
species are known to exist, or on waters that are otherwise biologically significant.
In the “Illinois Environmental Protection Agency’s Answers to Pre-filed Questions received
March, 2001” no mention is made of how many of the 8,678 facilities covered by general permits
are inspected annually. However, it would take a monumental effort on the part of the Agency to
inspect each ofthese facilities even a single time, much less more than once, given the available
resources.
We refer you to pages 27-28 ofour organizations’ pre-filed testimony submitted on January
18, 2001 for additional discussion ofour reservations regarding exceptions for general NPDES
permits.
De Minimis and Significance
There is no need for any de minimis or significance tests and the Board should reject all of
the proposals for de minimis and significance tests that have been made. The de minimis or
significance test proposals, if adopted, would be more burdensome for the Agency than performing
3
the antidegradation demonstration the tests are designed to circumvent, and are contrary to the clean
water goals
established by Congress, the General Assembly, and the Board. As Board member
Flemal observed at the February 6th, 2001 Board hearing, “if we concentrate a lot on exemptions
and de minimises we start chipping away at the ultimate objective of the Clean Water Act.”
(Flemal, Feb. 6, 2001, Tr. 72)
In particular, the Illinois Environmental Regulatory Group (IERG), joined by several other
parties, has proposed that the Agency be saddled with an extremely vague and complex significance
test. IERGpurports to fear that, without such a threshold test on antidegradation requirements,
businesses seeking to add insignificant amounts ofpollution to the water might be forced, through
lengthy proceedings, to prove that theirbusinesses provide economically or socially important
functions in society. However, unless the Illinois Environmental Protection Agency is seized by
Luddites, it is practically inconceivable that the Agency will take seriously a challenge to a permit
that is based solely on a demand for proofthat production of a legal product is economically or
socially beneficial. The draft Agency proposal certainly does not suggest that such an argument
would be taken seriously and we know ofno environmental group that would object to a permit on
such a basis.
The real question in allowing newpollution will always be whether the newpollution is
really necessary to create the product or service that the applicant seeks to make. New pollution
should never be exempted from making some form of such a demonstration, although in many cases
the showing required will be fairly minimal. In a few cases where granting one permit may
preclude other social or economic development, weighing of the relative contributions of the two
proposals may be necessary, but that is as it should be. New pollution should not be allowed on a
“first come, first served”
basis.
Adoption of a complex “significance” test to avoid a hypothetical risk ofthe Agency acting
in a wholly unprecedented manner, would add substantially to the Agency’s burden. In the
Environmental Groups’ pre-filed questions to the Agency we asked ifthe Agency had the resources
to conduct a complete analysis of the load allocations and pollutant loadingsnecessary to conduct
the
significance demonstration proposed by IERG. The Agency responded that, “it does not feel it
has
the resources to conduct a study ofcurrent load allocations.” (Illinois Environmental Protection
Agency’s
Answers to Pre-filed Questions received March, 2001, page 6)
Moreover, as discussed in our organizations’ “Answers to Pre-filed Questions to the
Environmental Groups”, the IERG proposal completely misconceives what is “significant” under
the CleanWater Act and the
policies that have been established by Congress and this Board.
As the Board stated in its 1972 adoption of the present “nondegradation standard” found at
35 Ill. Adm. Code 301.105, the numeric and narrative standards “do not represent optimum water
quality but the worst we are prepared to tolerate if economic conditions so require.” (Supra p. 4)
Numerical water quality standards have never been designed to be protective ofevery species that
may
be found in a state. According to the Agency, USEPA’s numerical criteria, which serve as the
basis for Illinois’ standards, do not “require that every possible species within every trophic level be
protected.” (Frevert Testimony, Dec. 6, 2000, Tr. 24-25)
Clearly, gaps exist in our knowledge of specific chemicals’ toxicity to terrestrial and aquatic
organisms and gaps exist in our knowledge ofhow variation, both natural and anthropogenic, in
4
other water quality parameters impacts existing uses. Antidegradation is intended to provide the
backstop to help fill these gaps, or at least ensure these gaps in our knowledge do not lead to
unnecessary degradation ofour waters.
In the Environmental Groups’ testimony to the Board on February 6, 2001, Mr. Albert
Ettinger gave a good example of why a de minimis exception creates problems when he asked the
question, “Can you imagine how much arsenic a company would have to buy in order to use up nine
percent ofthe assimilative capacity ofthe Mississippi River?” (Ettinger Testimony, Feb. 6, 2001,
Tr. 130) In truth, it is hard to imagine how much arsenic this would be (or for that matter lead,
mercury, or any ofa number of toxic pollutants) because the number in staggeringly large.
However a de minimis standard could theoretically allow for the discharge of such a huge quantity
ofpollution without any showing that this new pollution was necessary or that the discharge would
not
impact existing uses.
While it is plainly unthinkable to allow a nine percent increase in the amount of arsenic in
the Mississippi for no good reason, it is little better to allow an unjustified increase to a smaller
water
like Nippersink Creek or the Sangamon River. We should preserve the water quality ofall of
our waters unless we have been shown a good reason why it is necessary to surrender that quality.
This is particularly true given the gaps in our knowledge about the toxic effects of chemicals.
Finally, we would like to respond to a point regarding Ohio regulations raised at the Feb. 6,
2001 Board hearing. It was claimed that Ohio is the only state that does not have a de minimis
exception. (Andes Testimony, Feb 6, 2001, Tr. 34-35) Further, in his testimony Mr. Fredric Andes
told us
ofa presentation made to the Agency’s working group by a staffperson from Ohio EPA
who told the group, “don’t
do what we did,” on antidegradation. Mr. Andes implied the Ohio EPA
representative was advising Illinois to not follow Ohio’s example of not having a de minimis
exception.
However, it is more likely that the Ohio EPA official was suggesting that Illinois not
replicate Ohio’s burdensome public participation process for antidegradation review, which requires
a parallel
public notice, hearing, and comment period separate from the NPDES permit process.
Illinois EPA has not proposed to copy this unwieldy form of antidegradation implementation.
Indeed,
the Ohio official may have been referring to Ohio’s mistake ofadopting an antidegradation
policy with broad exceptions that were thereafter struck down under the Clean Water Act by the
Ohio courts.
Outstanding Resource Waters Designation
The Environmental Groups continue to object to the extensive list ofparties that must
receive a copy ofthe ORW petition in the Agency’s proposal. We reiterate the position that the
procedures and rules regarding notice be no more and no less extensive than similar proceedings
which the Board presides over.
The point ofrequiring notification and service ofa petition is to make sure all the interested
parties are informed and able to participate in a proceeding. To serve the needs of public
notification, the Board has a variety ofmethods to accomplish this, from the Illinois Register to its
own website. The public has ample opportunity to learn ofa proceeding to designate an ORW
5
under existing public notice and service provisions. There is no need to create special notice and
service burdens for ORW petitioners. However, if the Board were to adopt a policy which required
similarly burdensome notice and service restrictions for the other proceedings it oversees with
regards to variances, site specific standards, etc... as well as extending similar requirements to
NPDES permits, 401 water quality certifications, construction permits and the like, we would
certainly be open to discussion of the matter.
We must remember that the point ofsoliciting public input is to acquire information and
knowledge from as wide a variety ofparties as are interested in participating. The current system of
notice and service used in other proceedings has always satisfied the Board.
After all, the ramifications ofdesignating an ORW wrongfully and issuing a permit that
leads to long-term degradation have different outcomes for society as a whole. Issuance of a
NPDES permit that is not restrictive enough can kill a stream. On the other hand, as Mr. Ettinger
stated at the
Feb. 6, 2001 Board hearing, the ramifications ofwrongly designating an ORW are that,
“we
face the tragedy ofhaving water that’s a little too clean for the period until we repeal the
ORW.” This is a result we can probably bear.
The Environmental Groups would also urge the Board to strike the Agency’s language
regarding zero flow streams and ORW consideration (proposed 303.205(b)). This criteriahas no
justification and the Illinois Natural History Survey’s own candidate list of ORWs included
numerous
streams which could be eliminated from consideration by this arbitrary criterion. As the
Illinois Natural History Survey staff testified, “this idea ofthe 7Q10 zero having to have special
considerations
...
or requirements doesn’t make sense from an ecological standpoint.” (Cummings
Testimony,
Feb. 6, 2001, Tr. 180-181)
Further, we object to the requirements for extensive economic studies to be conducted and
included in a petition for ORW designation. Our recommended change would be to simply require a
statement
identifying the anticipated impact as detailed in our January 18, 2001 pre-filed testimony
(see our organizations’ pre-filed testimony dated January 18, 2001, proposed 106.994(e)).
According to Illinois Natural History Survey ChiefDavid L. Thomas, “We find the present [Illinois
EPA] proposal exceedingly difficult to comply with. If, in fact, one is to do a true economic
evaluation, I have a particular concern because I’m not sure that ecological functioning has ever
[been]
taken into account economically.” (Thomas Testimony, Feb. 6, 2001, Tr. 170-171)
We further disagree with IERG’s more strident requirement that a petitioner for an ORW
designation be required to show that the benefits of “ORW designation would substantially
outweigh lost economic and social benefits before granting an ORW designation.” (Hirner
Testimony, Feb. 6, 2001, Tr. 17)
Waters to be designated as ORWs will, in most if not all cases, be waters where there are
high levels ofbiodiversity or where there are populations ofrare species. It is unclear from IERG’s
proposed language how one is to weigh the social and economic benefits of these characteristics. It
is exceedingly difficult to quantify these qualities. Clearly Mr. Thomas’ testimony regarding Illinois
EPA’s
proposed 106.994(e) applies even more so to IERG’s socioeconomic criteria for ORW
designation.
6
Furthermore, IERG’s proposal requires that the social and economic benefits of recreational
and ecological significance be weighed against hypothetical unknown future economic and social
benefits. Not only would a petitioner for ORW designation be required to assign a dollar value to
qualities such as recreational and ecological significance, it would be required to somehow conjure
up what the economic future holds for the area.
Finally, we believe that proceedings to designate ORWs are best treated as regulatory
proceedings.
(see, Feb. 6, 2001 Transcript p. 58) This will allow the broadest public participation in
decisions regarding such designations.
Conclusion
We thank the board for the opportunity to provide these comments. We feel it is essential
that the Board adopt a strong antidegradation policy, free ofquestionable exceptions, that does not
allow arbitrary
levels ofpollution to be discharged without review, and that establishes reasonable
mechanisms
for designation of Outstanding Resource Waters.
Moore~Executive
Robert
Director
Prairie Rivers Network
809 South FifthAve.
Champaign, Illinois 61820
Albert F. Ettinger (ARDC 3125045)
Counsellor Environmental Law & Policy
Center, Friends ofthe Fox River, Prairie
Rivers Network, McHenry County Defenders,
and Sierra Club
35 East Wacker Drive, Suite 1300
Chicago, IL 60601-2110
March 19, 2001
Printed on Recycled Paper
7
CERTIFICATE OF SERVICE
I, Albert F. Ettinger, certify that I have filed the above Post Hearing Comments of
Environmental Groups, with an original and 9 copies on recycled paper, with the Illinois
Pollution Control Board, James R. Thompson Center, 100 West Randolph, Suite 11-500,
Chicago, IL 60601, and served all the parties on the attached Service List by depositing a copy in
a properly addressed, sealed envelope with the U.S. Post Office, Chicago, Illinois, with proper
postage
prepaid on March 20, 2001.
Albert F. Ettinger, Senior Attorney
Environmental Law and Policy Center
35 East Wacker Drive, Suite 1300
Chicago, IL 60601
(312) 673-6500
aettinger@elpc.org.
SERVICE LIST
RO1-13
FredAndes, Esq.
Barnes and Thornburg
2600 Chase Plaza
10 South LaSalle Street
Chicago, IL 60603
Richard J. Kissel, Esq.
Gardner, Carton & Douglas
321 North Clark Street; Quaker Tower
Ste 3400
Chicago, IL 60610-4795
Bill Compton
Caterpillar Inc.
100 North East Adams
Peoria, IL 61629-33 15
Paul Pederson
Nalco
Chemical Company
6216 West 66th Place
Chicago, IL 6063 8-0000
Jack Darin
Sierra
Club, Illinois Chapter
1 North LaSalle Street
Ste
505
Chicago, IL 60606-0000
Susan Frenzetti,
Esq.
Sonnenschein Nath & Rosenthal
Sears Tower
233 South Wacker Drive
Ste 8000
Chicago, IL 60606-0000
Christine S. Bucko, Esq.
Environmental Control Division
100 West Randolph Street
12th Flr.
Chicago, IL 60601-0000
Ron Hill
Metropolitan Water Reclamation
District
100 East Erie
Chicago, IL 60601-0000
James T. Harrington, Esq
Ross & Hardies
150 North Michigan Avenue
Ste 500
Chicago, IL 60601-0000
Jack Welsch
Nancy Rich, Esq.
Katten Muchin & Zavis
525
West Monroe Street
Ste 1600
Chicago, IL 60661-3693
Jeffery P. Smith,
Abbott
Labs
1401 Sheridan Road
D-72N/P14
North Chicago, IL 60064-4000
Marie E. Tipsord, Hearing Officer
Illinois Pollution Control Board
James
R. Thompson Center; 100 West
Randolph
Ste 11-500
Chicago, IL 60601-0000
Connie Tonsor
Illinois
Environmental Protection Agency
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, IL 62794-9276
Charles Wesselhoft, Esq.
Ross & Hardies
150 North Michigan Avenue
Ste. 2500
Chicago, IL 60601-0000
Stateside Associates
2300 Clerdon Boulevard
Suite 407
Arlington, Virginia 22201
SERVICE LIST
RO1-13
Jay Anderson
American Bottoms RWTF
One
American Bottoms Road
Sauget, IL 62201-0000
John M. Heyde
Sidley & Austin
Bank One Plaza; 10 South Dearborn Street
Chicago, IL 60603-0000
Irwin
Polls
Metropolitan Water Reclamation;
Environmental
6001 West Pershing Road
Cicero, IL 60804-4112
Sharon Neal
ComEd-Unicom
Law Dept. 125 South Clark Street
Chicago, IL 60603-0000
Cindy Skrudkrud
4209 West Solon Road
Richmond, IL 60071-0000
Georgia Vlahos
Department of the Navy
Naval Training Center
2601A Paul Jones Street
Great Lakes, IL 60088-2845
Jerry Paulson
McHenry County Defenders
804 Regina Court
Woodstock, Illinois 60098
Karen L. Bernoteit
Illinois
Environmental Regulatory Group
215 East Adams Street
Springfield, IL 62701-1199
Katherine Hodge
Hodge & Dwyer
808 South Second Street
Springfield, IL 62704
Jerome I. Maynard
Dykema Gossett
55
East Monroe Street
Suite
3250
Chicago, IL 60603-5709
Richard Acker
Openlands Project
25
East Washington Street
Suite
1650
Chicago, IL 60602
Chris Bianco
Chemical
Industry Council
9801 West Higgins Road
Suite
515
Rosemont,IL 60018
Stanley
Yonkauski
IL. Department ofNatural Resources
524 South Second Street
Springfield, IL 62701
Daniel J. Goodwin
Goodwin Environmental
Consultants, Inc.
400
Bruns Lane
Springfield, IL 62702
Philip Twomey
Admiral Environmental
Services
2025 South Arlington Heights Road
Suite 103
Arlington Heights, IL 60005
