RECEIVED

CL’~RK’SO~YCE

‘CT

I

I

2001

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

STATE OF IWNOlS

Pollution Control Board

)

NOTICE OF FILING

TO:

Ms. Dorothy M. Gunn

Clerk ofthe Board

Illinois Pollution

Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Illinois

60601

(VIA FACSIMILE AND

AIRBORNE EXPRESS)

Marie E.

Tipsord, Esq.

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Illinois

60601

(VIA FACSIMILE AND

AIRBORNE EXPRESS)

(PERSONS ON ATTACHED SERVICE LIST)

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

Pollution Control Board

an original and

nine copies ofthe

POST-HEARING

COMMENTS

OF

THE ILLINOIS

ENVIRONMENTAL REGULATORY

GROUP,

a copy ofwhich is herewith served upon you.

Respectfully submitted,

Dated:

October 11,2001

ILLINOIS ENVIRONMENTAL

REGULATORY GROUP,

By:

~

1),

Hc4~

One ofIts Attorneys

~J

Katherine D. Hodge

Thomas G.

Safley

HODGE DWYER ZEMAN

3150 Roland Avenue

Post Office Box

5776

Springfield, Illinois

62705

(217) 523-4900

Robert A. Messina

Illinois Environmental Regulatory Group

215 East Adams Street

Springfield, Illinois

62701

(217)

522-5512

iN THE

MATTER OF:

REVISIONS TO ANTIDEGRADATION

RULES:

35 ILL. ADM. CODE 302.105,

303.205, 303.206,

AND 106.990

—

106.995

)

)

R01-13

)

(Rulemaking)

THIS

FILING

SUBMITTED ON RECYCLED PAPER

---

CERTIFICATE OF SERVICE

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

attached POST-HEARING COMMENTS OF THE ILLiNOIS ENVIRONMENTAL

REGULATORY GROUP upon:

Ms.

Dorothy M.

Gunn

Clerk ofthe Board

Illinois Pollution Control Board

James R.

Thompson Center

100

West Randolph Street

Suite 11-500

Chicago, Illinois

60601

Marie E.

Tipsord, Esq.

Hearing Officer

Illinois Pollution Control Board

James R.

Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Illinois

60601

By facsimile and by overnight delivery by depositing

said documents in an Airborne

Express drop box

in Springfield, Illinois,

on October

11, 2001,

and upon:

SEE ATTACHED SERVICE LIST

by

depositing said

documents in the United States Mail

in

Springfield, Illinois on

October 11,2001.

D

~

/p~~

Katherine D. Ho~e

(J

IERG:OO1IRDockets/FiIIROI-13/COS

—

Post-Hearing Comments2

---

SERVICE LIST

Ms. Kay Anderson

American Bottoms RWTF

One American Bottoms Road

Sauget,

Illinois

62201

Frederic P.

Andes, Esq.

Barnes &

Thornburg

2600 Chase Plaza

10

South LaSalle Street

Chicago, Illinois

60603

Ms.

Christine Bianco

Director ofRegulatory Affairs

Chemical Industry Council ofIllinois

9801

West Higgins Road

Suite 515

Rosemont, Illinois

60018

Christine S. Bucko,

Esq.

Assistant Attorney General

Illinois

Attorney General’s Office

Environmental Bureau

188 West Randolph Street

20th Floor

Chicago, Illinois

60601

Mr.

Jack Darin

Sierra Club, Illinois

Chapter

200 North Michigan Avenue

Suite 505

Chicago, Illinois

60601

Mr. Albert F. Ettinger

Environmental Law & Policy Center

35 East Wacker Drive

Suite 1300

Chicago, Illinois

60601-2110

Susan M.

Franzetti, Esq.

Sonnenschein Nath

& Rosenthal

8000 Sears Tower

233

South Wacker Drive

Chicago, Illinois

60606

James T.

Harrington, Esq.

Ross & Hardies

150 North Michigan Avenue

Suite 2500

Chicago, Illinois

60601

John M.

Heyde, Esq.

Sidley & Austin

Bank One Plaza

10

South Dearborn Street

Chicago, Illinois

60603

Richard J.

Kissel, Esq.

Gardner,

Carton & Douglas

Quaker Tower

321 North Clark Street

Suite 3400

Chicago, Illinois

606 10-4795

Sharon Marie Neal, Esq.

Law Department

CornEd

-

Unicorn

125

South Clark Street

Chicago, Illinois

60603

Mr. Jerry Paulson

McHenry County Defenders

804 Reginact

Woodstock, Illinois

60098

Ms.

Cindy

Skrudkrud

4209 West Solon Road

Richmond, Illinois

60071

---

Connie Tonsor, Esq.

Assistant Counsel

Division ofLegal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

Post Office Box

19276

Springfield, Illinois

62794-9276

Ms.

Georgia Vlahos

Department ofthe Navy

Naval Training Center

2601A Paul Jones Street

Great Lakes, Illinois

60088-2845

IERG:OO1/Fil/RO 1-13/ServiceList

—

MASTER

Charles W.

Wesseihofi, Esq.

Ross & Hardies

150 North Michigan Avenue

Suite 2500

Chicago, Illinois

60601

Mr.

Stanley Yonkauski

Illinois Department ofNatural Resources

524

South Second Street

Springfield,

Illinois

62701

---

R~CE1VED

CLERK~SOFFICE

OCT

12

2001

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

STATE OF IWNOIS

iN THE MATTER

OF:

)

Pollution

Control

Board

)

REVISIONS TO ANTIDEGRADATION

)

R01-13

RULES:

35

ILL.

ADM. CODE 302.105,

)

(Rulemaking)

303.205,

303.206, AND

106.990

—

106.995

)

POST-HEARING COMMENTS

OF

THE ILLINOIS ENVIRONMENTAL REGULATORY GROUP

NOW COMES the ILLINOIS ENVIRONMENTAL REGULATORY GROUP

(“IERG”), by

one ofits attorneys, Katherine D. Hodge ofHODGE DWYER ZEMAN,

and for its Post-Hearing Comments

in this matter, states as follows:

I.

INTRODUCTION

Throughout the cooperative, two-year process led by the Illinois Environmental

Protection Agency (“Agency”) to develop the regulations at issue in this rulemaking, the

rulemaking proceeding resulting in the Illinois Pollution Control Board’s (“Board”)

June 21, 2001,

Opinion and

Order (“Board’s Opinion”), and the subsequent Board

Hearing on August 24,

2001, the Illinois Environmental Regulatory Group (“IERG”) has

maintained the following principles:

•

all

increases in loading to waters ofthe State ofIllinois

should not be

subject to the same level

of

antidegradation review by the Agency,

necessitating that the Board grant the Agency flexibility in conducting

such reviews;

•

the Agency’s resources should be targeted to those loadings that are

“truly”

significant, necessitating the inclusion ofcertain exceptions to

the antidegradation assessment requirement;

•

the regulated community requires some degree of certainty as to how

the Board’s antidegradation regulations will be implemented,

necessitating that the regulatory requirements be clearly set forth;

---

•

the designation ofa surface water body (or water body segment) as an

Outstanding Resource Water

carries such far-reaching restrictions on

the use ofboth land and water that all potentially impacted parties

must be notified ofa proceeding for such a designation, and the

proponent ofsuch a designation must support its petition with detailed

supporting information for development ofthe Record beforethe

Board; and,

•

the Illinois Department ofNatural Resources lacks the statutory

authority to conduct antidegradation assessments or to otherwise

implement

water quality standards.

In support ofthese principles, IERG has offered suggested regulatory provisions,

some of

which the Board has included

in its first notice regarding the antidegradation regulations,

and others the Board has deemed unwarranted.

Throughout this proceeding, the Agency, the Board and all interested participants

have offered detailed comments on how best to protect Illinois waters

from degradation.

The recommendations have been diverse and,

in some instances, at odds.

However, there

is

one issue as to which all participants and the Board agree:

that,

as the Board has

stated, “all proposed increases in pollutant loadings should not require the same level of

review to demonstrate compliance with the proposed antidegradation standard,” but

rather, the rules “should

allow the Agency to

decide on a case-specific basis what level of

review is appropriate.”

Board’s Opinion at

14.

(Emphasis added.)

All participants have

unequivocally recognized this principle.

~

Transcript ofAugust 24, 2001,

Hearing (“August 24, 2001, Transcript”) at p.

8,

1.

12,

to p.

12,

1.13

(testimony ofMs.

DeirdreK.

Hirner); p.

51,

11.

15 to

17

(testimony ofMs.

Cindy Skrukrud); p.

59,11.

9 to

13 (testimony ofMr. Robert J. Moore).

1ERG discusses this issue offlexibility below.

IERG also

addresses additional

concerns and comments that it has regarding the Board’s proposed regulations.

Some of

2

---

these comments have been developed through consultation with- the Agency and/or

representatives of the Environmental Groups, and reflect an agreement among the

participants as to

appropriate revisions to the Board’s proposed regulations.

IERG

respectfully requests that the Board take all ofthese concerns and comments

into

consideration as the Board prepares to issue its

proposed antidegradation regulations for

second notice.

II.

THE BOARD MUST PROVIDE THE AGENCY FLEXIBILITY IN

CONDUCTING ANTIDEGRADATION ASSESSMENTS.

The Board has indicated that, as proposed, Section 302. 105(c)(2) “allows the

Agency to decide on a case-specific basis what level ofreview is necessary,” and

provides the Agency the flexibility it needs to determine the depth and degree of analysis

to be completed for individual antidegradation assessments.

Board’s Opinion at

14,

As

IERG indicated at pages

eight and nine ofthe testimony ofDeirdre K. Hirner that was

pre-filed for presentation at the August 24, 2001, Hearing (“1ERG’s Pre-Filed

Testimony”), and

as emphasized in

oraltestimony before the Board, August

24, 2001,

Transcript at 8-10, IERG maintains that the language ofproposed Section 302.105(c) is

drafted in

such a manner as to place undue restrictions on the Agency’s ability to

exercise

flexibility in the antidegradation review process.

IERG has held discussions with the Agency regarding this issue since the August

24, 2001,

Hearing on the Board’s Opinion.

In light ofthese discussions, IERG and the

Agency agree that the Board’s proposed Section 302.105(c)(2) should be revised to

include the following language:

The assessment to determine compliance with this

Section 302.105 must

be made on a case-by-case basis.

3

---

See Exhibit A’ at

10; Agency October

5,

2001, Comment (“Agency Comment”)

at

7.

IERG and the Agency also agree that similar language should be included in what

is currently the Board’s proposed Section 302. 105(f)(1), the Agency’s implementation

procedures.2

~

Exhibit A at

25;

Agency Comment at

3 8-39.

Further,

in this same regard, IERG offers the following revision to the Board’s

proposed Section

302.

105(c)(2)(B),

in

an effort to ensure the Agency

discretion to

conduct an antidegradation review and

assessment for each permit application on a case-

by-case basis:

2).

.

.

In making this assessment, the Agency must:

A)

Consider the fate and effect ofany parameters proposed for

an increased pollutant loading; and

B)

On a

case-by-case basis, A~ssurethe following:

IERG’s Proposed Revised Section

302. 105(c)(2)(,B)

(~

Exhibit A at

10).

IERG respectfully asks the Board to note this language has been revised from the

revision IERG offered in its Pre-Filed Testimony and in Exhibit

A thereto.

IERG has

revised this language in

deference to the concerns expressed by representatives ofthe

environmental community at the August 24, 2001, Hearing.

~

August 24, 2001,

Transcript at 23, 24-25, 32-34.

As Ms. Deirdre K. Hirner ofIERG stated at that Hearing,

1

Exhibit A to these Post-Hearing Comments details IERG’s proposed revisions to the Board’s proposed

regulatory language.

This Exhibit supersedes the similar exhibit filed by IERG as Exhibit A to IERG’s

August 9, 2001, Pre-Filed Testimony.

2

See discussion below regarding the

Agency’s proposal to transfer the Board’s proposed Section

302.105(1) to Part 309 of the Board’s regulations.

4

---

it was never IERG’s intent to preclude the Agency from considering any

criteria

it deemed necessary in the conduct of an antidegradation review.

Rather, it is,

and

always has been, IERG’s intent to propose language that ensures the Agency the

flexibility needed to consider the

depth and degree ofstudy ofeach ofthe criteria which

the Agency deems appropriate on a case-by-case

basis.

Finally on this point, IERG again strongly encourages the Board to

clarify the

antidegradation regulations to allow the Agency the flexibility

necessary to

establish the

level ofreview required to demonstrate compliance with the antidegradation standard for

each individual permit application, with the complexity and

scope of review dependent

upon the nature ofthe proposed activity, the pollutant, and the character ofthe receiving

stream at issue.

ifi.

THE REGULATIONS SHOULD IDENTIFY ACTIVITIES NOT SUBJECT

TO FURTHER ANTIDEGRADATION ASSESSMENT SO AS

TO ALLOW

THE AGENCY TO TARGET ITS

RESOURCES TO TRULY

It is evident that the Board and the Agency agree that certain activities do

not

require a separate antidegradation demonstration, as such activities essentially have been

subject to reviews similar to antidegradation reviews under other authorities,

and thus,

conducting

a separate antidegradation demonstration would be an unnecessary

redundancy.

The Board identified seven such activities in its

First Notice Opinion and

Order under proposed Section 302.105(d), as did the Agency in an attachment to its

March 20, 2001, filing of“CLOSING COMMENTS.”

IERG supports the proposed

adoption ofthese exceptions.

In its Pre-Filed Testimony and at the August 24, 2001, Hearing, IERG requested

the Board

consider the adoption of four additional exceptions,

including an exception for

5

---

de minimis increases

in pollutant loading.

IERG’s Pre-Filed Testimony at 5-8,

10-14;

August 24, 2001, Transcript,

at

10,

12-13.

On review of arguments presented at hearings

throughout this proceeding,

and in

supporting documents, IERG now requests that the

Board

consider the addition of only one

additional exception in its

Opinion and Order

issuing the Board’s antidegradation regulations for second notice.

At the August 24, 2001, Hearing

on the Board’s Opinion,

an extensive discussion

ensued regarding the scope ofthe Board’s proposed Section 302.105(d)(5), which would

except discharges ofcertain non-contact cooling waters from the antidegradation

assessment requirement.

~

August 24, 2001, Transcript

at 25-27.

This discussion,

which broached the Agency’s concern with the language and industry’s need for the

exception, afforded the opportunity for post-hearing dialogue.

Through that dialogue,

the

Agency and the regulated community have come to understand that application ofthis

exception to non-contact cooling waters containing only

the additive chlorine, and where

dechlorination occurs before discharge,

is an acceptable compromise.

Accordingly,

IERG proposes the following amendmentto the Board’s proposed Section

302.

105(d)(5):

5)

New or increased

discharges of a non-contact cooling waterj

A)

without additives,

except as provided

in subsection

(d)(5)(B)

ofthis Section,

returned to the same body of

water from which it was taken~

as defined by 35 Ill.

Adm.

Code 352.104, provided that the discharge complies with

applicable Illinois thermal standards;.~L

~)

containing chlorine when the non-contact cooling water is

treated to

remove residual chlorine and

returned to the

same body ofwater from which it was taken, as defined in

35 Ill.

AiIm.

Code 352.104,

provided that the discharge

complies with applicable Illinois thermal and effluent

standards.

See Exhibit A at

12.

6

---

The Agency supports and has also proposed this revision ofSection

302. 105(d)(5)

to the Board.

~

Agency Comment at 7-9.

IERG respectfully requests that the Board

include this revision in its Opinion and Order issuing the Board’s antidegradation

regulations for second

notice.

-

Also, IERG has reconsidered its request that the Board include a de minimis

exception in the antidegradation regulations.

The Board has clearly articulated its belief

that “the Agency should have the opportunity to review any proposed increase in

pollutant loading.”

Board’s Opinion at

16.

And, IERG concurs that concerns expressed

by

other participants in this proceeding, namely, that performing de minimis calculations

could tax Agency resources and

call matters oftiming and

scope ofreview into

consideration, may warrant merit.

As noted by Deirdre K. Hirner at the August 24, 2001,

Hearing, however,

to those very few industries that could make use ofa de

minimis

demonstration, such a demonstration would be

a valuable tool

in terms ofavoiding

potential delays in

processing NPDES permits.

August 24, 2001,

Transcript at

10.

Therefore, 1ERG would ask the Board’s consideration ofan addition to proposed Section

302.105(c)(2)(C) to allow the Agency to consider a de minimis demonstration as one of

its

sources ofinformation in

making an antidegradation assessment.

S.~

Exhibit A at

11.

This demonstration would be prepared by the permit applicant, and show that the

proposed increased in loading

ofa pollutant, other than a bioaccumulative chemical of

concern,

does not utilize more than ten-percent ofthe available assimilative capacity of

the receiving water forthe constituent under consideration.

j4,,

Also, IERG has withdrawn its request for an exception from the antidegradation

assessment requirement for discharges authorized by the Board or by a Court.

IERG

7

---

withdraws this request based on its understanding that the Agency does not consider itself

to have the authority to override, by an antidegradation assessment, a Board

or Court

authorization for a discharge.

And, IERG has withdrawn its request for an exception for

site stormwater discharges.

IV.

THE REGULATORY

LANGUAGE MUST BE

CLEARLY

STATED TO

PROVIDE CERTAINTY AS TO HOW

THE

REGULATIONS WILL BE IMPLEMENTED.

A.

Board’s Proposed Section 302.105(c)(2)

—

~~j~ger

To properly comply with the antidegradation review process, the regulated

community must be able to clearly identify the trigger that begins that process.

IERG,

the Agency and the Board concur that the Board’s proposed language

at Section

302. 105(c)(2) makes clear that the antidegradation assessment requirement applies only

to increases in

pollutant loading that necessitate the issuance of a new, renewed, or

modified NPDES Permit.

IERG initially had proposed adding the modifying language

“with a new or increased permit limit” in order to appropriately clarify the trigger for the

antidegradation assessment process.

However, discussions with the Agency subsequent

to the August 24, 2001, Hearing have led to

an understanding that this proposed language

could be

interpreted to restrict antidegradation review to only those pollutants having a

“limit” expressly stated in a permit.

It was not lERG’s intent to so impede the Agency in the conduct ofits duties.

Rather, IERG’s intent was to explicitly state that which is implicit in the Board’s

proposal:

that at least forthose

constituents for which a limit is expressly stated in

a

permit, the antidegradation assessment requirement is triggered by a permit applicant’s

request for an increase in

loading that would result in an exceedence ofthe expressly

8

---

stated limit.

Likewise, an increase in

a pollutant discharge for which no permit limit is

stated, but for which the Agency has authorized a level of loading,

is not subject to

antidegradation review as long

as the increased discharge does not exceed the authorized

level ofloading.

In light ofthese discussions, IERG has reconsidered its request that the Board

include the “with a new or increased permit limit”

language in the Board’s proposed

Sections 302.

105(c)(2)

and (f)(1).

Instead, IERG believes that the trigger for

antidegradation review can by made clear by revising Section

302.

105(c)(2)

to provide as

follows:

The Agency must assess any proposed increase in pollutant loading that

necessitates the issuance ofa new, renewed or modified NPDES p~ermit~

or any activity requiring a CWA Section 401

certification~

to determine

compliance with this

Section 302.105

provided, however, that if a

pollutant is subject to an

existing permit limit, an assessment

shall not be

required unless the proposed increase in pollutant loading would

result in

an exceedence ofsuch permit limit.3

The assessment to

determine

compliance with this Section 302.105 must be made on a case-by-case

basis.

In making this assessment, the Agency must:

See ExhibitAat

10.

IERG also proposes to add similar language to the Agency’s proposed Section

309.141(i).

See Exhibit A at 25.

It is IERG’s understanding that the Agency agrees

conceptually with these revisions.

~

Agency Comment

at

10-11.

IERG respectfully

requests that the Board include these revisions in

its Opinion and

Order issuing its

antidegradation regulations for second notice,

so as to avoid confusion and

the potential

for future litigation regarding this issue.

See discussion of this

proposed revision to

Section

302.

105(c)(2)

below.

9

---

B.

Board’s Proposed Section 302.105(b)(1)(B)

—

Existing

Discharges into ORWs

The Board’s proposed Section 302.105(b)(1)(B) provides for “existing site

stormwater discharges” into ORWs.

IERG has previously requested that the Board revise

the language ofthis provision, but

hereby withdraws that request.

IERG is comfortable

with the language ofthe Board’s proposed Section 302. 105(b)(1)(B).

C.

Board’s Proposed Sections 302.105(b) to (d)

—

Review of Discharges to

ORWs

The Board’s proposed Section

302. 105(b)(3)(B) provides that the short-term,

temporary activities and

the stormwater discharges affecting the water quality of ORWs

authorized under proposed Section

302. 105(b)(1) may occur only if they are also

“necessary for an activity that will improve water quality in the ORW.”

Based on the

testimony ofthe Agency’s witness Mr. Toby Frevert, this

Section

has been structured to

allow

such load increases in an ORW.

While the circumstances

in which such increased

loading to

an ORW are to be very few and limited,

the provision was developed as an

allowance.

The requirementthat the activity also improve water quality is contrary to the

allowance ofa limited discharge.

Accordingly, IERG assumes that the Board did not intend proposed Sections

302. 105(b)(3)(B) and (C) to apply to the activities authorized

in proposed Sections

302.

105(b)(1)(A)

and

(B).

TERG has consulted with the Environmental Groups regarding

this issue,

and

it is IERG’s understanding that the Environmental Groups support the

following revision to clarify Section 302.

105(b)(3):

3)

Any

activity listed

in

subsection (b)(1) or any other proposed

increase

in pollutant loading to

an ORW must

also meet the

following requirements:

10

---

A)

All

existing uses ofthe water will be fully protected; and,

B)

Except for activities falling under one ofthe exceptions

provided in

Subsection (b)(1)(A) or (B) above,

The proposed increase in pollutant loading

is

necessary for an activity that will improve water

quality in the ORW;

and

?jI).

The improvement could not be practicably achieved

without the proposed increase in pollutant

loading.

See Exhibit A at 9-10.

IERG also notes that it is still unsure of the intent the Board’s proposed

requirement that increases in

loading to ORWs improve water quality.

IERG assumes

that this means, for example, that if an increase in the level of one contaminant in

a

discharge to an ORW allowed a party to

decrease

the

levels ofthree other contaminants

in the discharge, the increased discharge ofthe first contaminant to the ORW would be

allowed, because it is necessary to improve water quality (i.e., throughthe decrease in the

other three contaminants).

IERG requests that the Board clarify the intent ofthis

requirement in the Board’s Opinion and

Order issuing the antidegradation regulations for

second notice.

Finally,

1ERG proposes the following revisions

to the Board’s Proposed

Sections

302.

105(b)(2),

(4), and

(5),

which revisions are intended to incorporatethe Agency’s

proposed revisions

to these Sections and to clarify what IERG understands to be the

Board’s intent in those Sections:

2)

Any activity inunder subsections (b)(1)(A) or (b)(1)(B) ofthis

Section or any other increase in pollutant loading that

requireswould necessitate the issuance ofa new, renewed or

modified-aNational Pollutant Discharge Elimination System

(NPDES) Permit or require a Clean Water Act (CWA) Section 401

11

---

certification must also

comply with subsection (c)(2) ofthis

Section.

4)

Any proposed increase in pollutant loading to an ORW that would

requir~ing

the issuance of a new, renewed, or modifiedan NPDES

permitPermit or a CWA 401 certification for an

ORW must be

assessed pursuant to 35 Ill. Adm.

Code 309. 141(i)subsection (f) to

determine compliance with this

Section.

~)

Any activity requiring

a CWA Section 401

certification for an ORW must

be assessed during the Section 401

certification process to determine

compliance with this Section.

SeeExhibitAat9,

10.

IERG respectfully requests that the Board include these revisions in

its Opinion

and Order issuing the Board’s antidegradation regulations for second notice.

D.

Codification ofAgency Implementation Rules

The process by which the Agency requests information from an applicant, reviews

that information,

and makes the results ofits assessment known to the public is

inextricably linked to achieving antidegradation.

It was the need for certainty as to how

the assessment and

review process would be implemented to achieve the standard that led

IERG to request that the Board include the Agency’s implementation regulations within

the body ofthe Board’s rules.

March

19,

2001, Post-Hearing Comments ofIERG at

10.

The Board agreed with this suggestion,

and,

again, IERG thanks the Board for doing

so.

At the August 24,

2001, Hearing on the Board’s Opinion, the Agency requested

that the Board place the Agency’s implementation rules regarding antidegradation in Part

309 rather than in Part 302 ofthe Board’s rules.

It is IERG’s understanding that the

Agency proposes to include the Board’s proposed Section 302. 105(f)(1), (2), and (3) in

35 Ill.

Admin. Code

§~

309.103(a), 309. 141,

and 309.108

and 309.113,

respectively.

12

---

IERG has considered and supports this proposal by the

Agency, and IERG has set

forth

proposed non-substantive revisions to the Agency’s proposed revisions to Part 309

in

Exhibit A at 2 1-26.

It is also IERG’s understanding that the Agency has proposed that the Board

delete the portions ofthe Board’s proposed Section 302.105(f) addressing the procedures

by which permit

applicants interact with the Agency prior to

seeking a permit.

IERG has

also considered and supports this proposal by the Agency.

E.

Board’s Proposed Section

302.105(d)(6)

—

Biological Significance

Among

other exceptions from the antidegradation assessment requirement, the

Agency proposed an exception for “~discharges permitted under a current general

NPDES permit as provided by 415 ILCS

5/39(b).”

Agency’s Proposed Section

302.

105(d)(6).

In its Opinion, the Board

added a condition to this

exception, which

requires that:

the Agency must assure that individual permits

or certifications

are

required prior to all

new pollutant loadings or hydrological

modifications

that necessitate a new, renewed or modified NPDES permit or CWA,

Section 401

certification that affect waters ofparticular biological

significance.

Board Opinion at 34.

(Emphasis Added.)

The Board does not discuss “waters of particular biological significance”

in its

Opinion, and this language was never discussed during the course ofthe Agency’s work

group meetings.

Accordingly, IERGwas uncertain of the meaning ofthis language and

assumed that the Board must have meant to refer to ORWs.

~

IERG’s Pre-filed

Testimony at 22-23.

13

---

In theirPre-Filed Testimony,

and at the August

24, 2001,

Hearing on the Board’s

Opinion,

certain Environmental Groups4 supported the inclusion ofthis language

in

Section 302. 105(d)(6).

August

10,

2001, Memorandum Regarding the Proposed Rule,

First Notice, ofthe Environmental Groups at 2 (“Environmental Groups’

Memorandum”); August

10, 2001, Pre-Filed Testimony ofRobert J. Moore at 4-5;

August 24,

2001, Transcript at 66, 76-78.

The Environmental Groups further argued that

the Agency should rely on a 1991

report prepared forthe Illinois Department of

Conservation and titled “Biologically Significant Illinois Streams” to

determine what

constitutes a “water

ofparticular biological

significance.”

jj

It still

appears to IERG that the Board’s reference to “waters ofparticular

biological

significance” was a typographical error,

and that the Board intended to refer to

ORWs.

Using the term “waters of particular biological

significance” would create a

fourth class ofwaters,

somewhere between “high quality waters”

and “outstanding

resource waters,” and the Board has never indicated any desire to create an additional

class ofwaters.

Further,

there has been no discussion among the participants in this

rulemaking and no presentation ofevidence to the Board regarding how a fourth

class of

waters should be defined, what

it should comprise,

etc.

Accordingly, IERG opposes the

inclusion ofthis language in Section

302.105(d)(6) and respectfully requests that the

Board revise this Section to refer to ORWs.

See Exhibit A at

12.

Further,

even if the Board had intended to refer to “waters ofparticular biological

significance,” IERG opposes relying on the

1991

Report titled “Biologically Significant

Illinois Streams” (“1991 BSIS Report”) to determine what water bodies are “of particular

4The

Environmental Law and Policy

Centerof the Midwest;

Friends ofthe Fox

River,

Prairie

Rivers

Network; and

the illinois

Chapter

of the Sierra

Club (hereinafter collectively “Environmental Groups”).

14

---

biological

significance.”

The 1991

BSIS Report classifies water bodies as “biologically

significant” if one of three criteria is met:

(1) the water body

is classified as an “A’

category” stream in a 1989 report entitled “Biological Stream Characterization:

A

Biological Assessment ofIllinois Stream Quality” (“BSC”); (2) the water body has

“mussel diversity”; or (3) “a threatened,

endangered, or watch list

species has been

recorded in

the waterbody

since

1980.”

1991

BSIS Report at

1-2,

6.

The problems

with this approach are as follow.

First, the Environmental Groups have not filed any evidence that the methodology

used to prepare the BSC and the criteria used to identify waters ofbiological significance

have been made available for review by the regulated community orthe scientific

community, and IERG is not aware ofany such review having taken place.

Without such

review, the Board has no way to ascertain whether any scientific basis exists forthe

conclusions ofthe BSC,

and thus, whether the 1991

BSIS Report should have relied on

the BSC.

Likewise, the Board has no way to

ascertain whether any scientific basis exists

for the conclusions ofthe

1991 BSIS Report regarding what waters are “biologically

significant.”

Second, the authors ofthe

1991

BSIS Report explain that the data on which they

relied in preparing the

1991

BSIS

Report was incomplete.

For example, the

1991

BSIS

Report

states that “~other

parameters” that the Report did not consider are relevant to

determining the “biological

significance” ofa water body,

including “water quality,

land

use, unusual

habitants, naturalness ofthe ecosystem, and natural divisions.”

1991

BSIS

Report at 3.

The authors of the

1991

BSIS Report also state that they focused only on

water bodies with endangered, threatened, or watch list species,

fish diversity,

and mussel

15

---

diversity, and that “data on additional groups would refine the

Report’s

analysis.”

1991

BSIS Report at 6.

IERG is troubled by these admitted shortcomings, especially the lack

ofphysical habitat data and data on aquatic insect fauna in the

1991

BSIS Report.

For

example, for several ofthe water bodies identified as “biologically significant,” the

1991

BSIS Report only identifies the presence ofan endangered, threatened, or watch list

species, and then states:

“No data on stream characteristics is available for this site.”

See, ~

1991

BSIS Report at

327.

Third, the data used in the

1991

BSIS Report regarding the presence of

endangered, threatened, or watch list species in water bodies is now out ofdate.

The

1991

BSIS Report was prepared ten years ago, and the data on which it relies to conclude

that endangered, threatened, or watch list species are present were gathered before that.

The Environmental Groups have presented no evidence that the conclusions ofthe

1991

BSIS Report regarding the presence ofsuch species are currently accurate, or even if they

are, that these conclusions will remain accurate in the future.

Fourth, in some cases, the

1991

BSIS Report itself describes that a water body

that it considers “biologically significant” cannot be preserved for one reason or another.

For example, the

1991

B SIS Report characterizes Sammons

Creek in Alexander County,

Illinois,

as “biologically significant” because ofthe presence ofa threatened fish

identified in that creek

in 1990.

1991

BSIS Report at 266-267, 268-269.

However, the

Report also

states that “~preservation

potential” for Sammons Creek “is low because of

the local agricultural practices.”

Içj.

See also,

~

1991 BSIS Report at 352 (discussion

of Brushy Slough

in White County, Illinois).

16

---

In light ofall ofthese concerns, even if the Board had meant to refer to “waters of

particular biological

significance,” IERG would oppose the use of the

1991 BSIS Report

to determine what water bodies are ofparticular biological significance.

F.

Other Proposed

Minor Language Revisions

Finally, in Exhibit A to these Comments,

IERG also has proposed other minor,

but important, revisions to the Board’s proposed regulations.

IERG does not intend these

proposed revisions to affect the substance ofthe regulations, but merely to clarify the

language ofthe regulations.

IERG respectfully requests that the Board include these

minor, but important, revisions in

its Opinion and

Order issuing the Board’s

antidegradation regulations for second notice.

V.

THE DESIGNATION OF OUTSTANDING RESOURCE WATERS

REQUIRES THAT ALL POTENTIALLY IMPACTED PARTIES BE

NOTIFIED

AND

OBLIGATES

THE

PROPONENT TO SUPPORT ITS

PETITION WITH DETAILED INFORMATION.

IERG continues to have concerns with two of the Board’s proposals relating to

proceedings to designate ORWs or to repeal or modify such designations.

IERG initially

had voiced its preference that the Board use an adjudicatory proceeding to consider ORW

designations due to the associated use limitations placed on a water body so designated

and on

its surrounding lands,

indeed the

entire watershed.

Subsequently, IERG was

convinced by the Board’s arguments favoring a rulemaking proceeding and

supports the

Board’s First Notice proposal in this regard.

However, IERG has not lost sight ofthe

significance ofthe ramifications ofa decision to designate a water body as an ORW.

IERGmaintains

that, if a rulemaking proceeding is

to be used to consider

petitions regarding ORW designations,

the Board must address two

issues ofconcern as

follows.

17

---

A.

Receive Adequate Notification.

IERG renews its proposal that the Board strengthen the notification requirements

for petitions relating to ORWs, as outlined in IERG’s Pre-filed Testimony.

~

IERG’s

Pre-Filed Testimony

at

17.

The Board requires newspaper publication ofpetitions to

designate special resource groundwaters and petitions for adjusted standards.

~

35

Ill.

Admin.

Code

§~

104.408(a),

620.260.

And, the Board requires both newspaper

publication and additional written notice to

specified persons regarding petitions for

variances from the Board’s regulations.

~

35

Ill.

Admin.

Code

§

104.214(a),

(b).

Given that Mr. Frevert has acknowledged that:

the ramifications of a

decision to

designate a water body as an ORW

are fundamentally more significant than the ramifications of a typical

adjusted standard or even a

statewide standard in that we are not setting

a

target to protect

an environmental use here.

.

.

.

we

are setting an

absolute prohibition on some activities,

Transcript ofNovember 17,

2000, Hearing at 88,

11.

10-16, and that Mr. Frevert has

indicated there is:

an

obligation to disseminate adequate information regarding

a proposal to

designate

an ORW

to start the process and

to

assure

that potentially

affected

property owners and other citizens have adequate notice,

jj~p.

88,

1.

22 to

p.

89,

1.

1, IERG is unequivocally convinced that its proposed expanded

notification requirements arejustified

and strongly urges the Board to adopt the necessary

notification requirements.

To facilitate the Board’s favorable consideration ofthis request, TERG further

notes that atthe August 24,

2001, Hearing on the Board’s Opinion,

Mr. Frevert stated

that the Agency could assist

in the notification process,

indicating that once the Board

determined that a petition regarding an ORW would move forward, the Agency:

18

---

would certainly be

committed at that point to do whatever we can to help

you identify potentially affected

parties, and, you know, either giving

you current permit holders within that affected

area mailing address or

perhaps even agree to do a mailing for you or for someone.

August 24,

2001, Transcript at

87,

11.

15-20.

IERG greatly

appreciates the Agency’s willingness to assist with the notification

process proposed by TERG,

and urges the Board to accept the Agency’s offer and to

include the language proposed by IERG in Exhibit A hereto regarding notification in

ORW proceedings.

~

Exhibit A at

1.

B.

Proponents of an ORW Designation Have an Obligation to Support

Development ofthe Record

before the Board.

In response to questions at the August 24, 2001, Hearing, Mr. Frevert indicated

that designating an ORW:

is not just adjusting a standard~;

it’s designating an entirely new use, an

entirely new use concept.

In that regard, it does have the potential

significantly to affect

people.

August 24, 2001, Transcript at 88.

IERG believes that any proceeding that will set “absolute

bans” on the use of land

and which has such potential for severe impact on people’s lives and livelihoods demands

that the proponent ofan

ORW designation have an obligation to submit sufficient

supporting documentation to the Board to prove that the designation is warranted.

IERG

initially advocated that the designation ofa water body as an

ORW take place in the

context of an adjudicatory proceeding because the burden ofproofon a proponent in an

adjudicatory proceeding before the Board is well established, while the burden ofproof

on a proponent in

a rulemaking proceeding is not.

19

---

Arguments offered by the Board in its First Notice Opinion and Order, Board’s

Opinion at 20-23, and reinforced at Hearing, August 24,

2001,

Transcript at p.

44

11.

12-

17,

p.

45

11.

1-6, p.

46

11. 10-15, have convinced

IERG that the procedure for designating

ORWs can appropriately progress in the regulatory arena.

However, the regulated

community maintains that the proponent ofa regulatory proceeding before the Board,

even ifthat proponent is the Agency, does have a minimum burden in

moving the

proposal

forward, if only by presenting sufficient

information to demonstrate the need for

the proposed regulation.

The essence ofthis matter was best articulated by Dr. Tanner Girard in his query

regarding his perception of IERG’s concern with the word “statement” as used in the

Board’s proposed Section 102.820.

Dr.

Girard accurately suggests that “statement” can

be viewed as a narrow term allowing one to put forth a petition for ORW designation that

does not include supporting evidence.

August 24,

2001, Transcript at 49, 11.10 to

15.

IERG holds that the proponent ofan ORW designation,

modification or repeal has an

obligation to offer sufficient evidence in

support ofits position so as to allow the Board

to meaningfully consider the factors

set forth in Section 27 ofthe Illinois Environmental

Protection Act.

See 415

ILCS

5/27,

Accordingly, IERG proposes that the Board adopt revisions to the Board’s

proposed Section 102.820 that place proponents ofthe designation, repeal or

modification of an ORW on notice ofthe need to fully support the petition.

The listing of

“Petition Contents”

detailed in

Section

102.820 (b) through (g) requiring the proponent to

submit a “statement” in support ofthe designation must be strengthened by the addition

20

---

ofthe phrase “with supporting

evidence” for each ofthe specified

criteria, as set forth in

Exhibit A at 2.

These revisions will afford some degree of certainty that the proponent indeed has

a minimum burden to provide

sufficient information in support ofthe designation forthe

Board’s consideration on the Record.

IERG respectfully requests that the Board include

these revisions in the Board’s Opinion

and Order issuing its antidegradation regulations

for second

notice.

Finally, IERG notes that it has withdrawn its request that the Board revise

proposed Section

102.830(b) to place a burden on the proponent ofan ORW designation

to establish the elements required for such a designation.

Rather, IERG now proposes

that Section

102.830(b) state that the Board may designate a waterbody as an

ORW if it

finds that “the evidence set forth in the Record.

.

.

supports” the required elements.

$~

Exhibit A at 3.

VI.

THE ILLINOIS DEPARTMENT OF NATURAL

RESOURCES LACKS

STATUTORY AUTHORITY TO

CONDUCT ANTIDEGRADATION

ASSESSMENTS.

Illinois facilities are heavily regulated in the environmental area.

In numerous

instances, the General Assembly has charged specific state agencies other than the

Agency with authority to administer specific environmental

programs.

Examples include

the Illinois Emergency Management Agency in the Community-Right-To-Know

program; the Illinois Department ofAgriculture as regards agrichemical facility

remediation;

and the Illinois Department of Transportation as regards hazardous material

transportation.

The list goes on, but with a common theme:

the General Assembly

vested authority in

a specified state agency, and the regulated communitywas so advised.

21

---

This advisement is crucial, because a critical factor in

a business’s compliance strategy is

knowledge ofwho the regulator is,

and the rules that govern those regulators.

The Environmental Groups propose that the Board authorize the Illinois

Department ofNatural Resources (“IDNR”) to participate in the antidegradation

assessment process.

~

Environmental Groups’

Memorandum at 4.

The General

Assembly has designated the

Agency, not IDNR,

as the “water pollution agency for the

state for all purposes ofthe Federal Water Pollution Control Act.”

415 ILCS

5/4(1).

Likewise, the General Assembly has charged the Agency, not IDNR, with the

responsibility to administer permit programs,

including the NPDES permit program and

the antidegradation review process as it takes place in the context ofthat

program.

415

IFLCS

5/4(g).

Only the General Assembly can give IDNR a role in administering the

Water Pollution Control Act orthe permit programs ofthe state.

As the General

Assembly has not done so, IERG opposes the Environmental Groups’

requestthat the

Board add a provision to the antidegradation regulations entitling the IDNR to have such

involvement.

VII.

CONCLUSION

The Agency’s Work Group process and the subsequent Board

proceeding here

have allowed for thorough and comprehensive review and comment by

all

interested

participants.

In addition, the Board has afforded the opportunity to reflect on all

participants’ positions and the rationale for those positions.

IERG has been an active

participant in the process and has given due consideration to all arguments, written and

oral.

To achieve balance between the needs ofthe environment and the burden on the

regulated community, IERG respectfully requests that the Board address the following

22

---

issues, the subject ofthese comments, in

its Opinion and Order issuing the Board’s

antidegradation regulations for second notice.

1.

The Board must provide the Agency flexibility in conducting

antidegradation reviews to assess any proposed increase in pollutant loading on a case-

by-case basis, by specifically authorizing that flexibility.

2.

The regulations

should provide exceptions for activities not

subject to

further antidegradation review, so as to assist the Agency in targeting its resources to

truly significant loadings.

IERG requests the addition of only a minor modification to

one ofthe Board’s proposed seven exceptions

—

that chlorine be allowed as an additive to

non-contact cooling water, ifthe water is subsequently treated to remove residual

chlorine levels.

3.

The regulatory language

must be clear to provide certainty regarding the

implementation ofthe antidegradation regulations, as set forth above.

4.

The designation ofoutstanding resource waters requires all potentially

impacted parties to be notified ofthe proceeding,

and obligates the proponent of a

designation, repeal or modification ofan

ORW to support its petition with detailed

information and

supporting evidence on the Record.

5.

The Illinois Department ofNatural Resources lacks the statutory authority

to develop or implement the antidegradation water quality standard.

It is, therefore,

inappropriate for the Board to assign a role to the IDNR in this rulemaking.

IERG would like to again thank the Board for the opportunity to participate at the

Hearing held in this matter on August 24, 2001,

regarding the Board’s Opinion

publishing the Board’s antidegradation regulations for first notice.

IERG believes that

23

---

the comments and proposals submitted in advance of~,and the testimony elicited at, that

Hearing provide a sound basis for the Board’s consideration as to how to move this

rulemaking forward.

IERGurges the Board to adopt its suggested revisions to the

Board’s proposed antidegradation regulations, particularly as detailed in these post-

hearing comments.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL

REGULATORY GROUP,

By:

)~L~

~

~e

/~

One ofIts Attorneys

(J

~)

Dated:

October 11,2001

Katherine D. Hodge

Thomas G.

Safley

HODGE DWYER ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois

62705-5776

(217) 523-4900

Robert A. Messina

Illinois Environmental Regulatory Group

215 East Adams Street

Springfield, illinois

62794-9276

(217) 522-5512

IERG:00l/R DocketsIFilIROl-l3/Post-Hearing Comments

24

---

October 11,2001

Exhibit

A to

October 11, 2001, Post-Hearing Comments of the

Illinois Environmental Regulatory Group

R01-13

(This document supersedes ExhibitA to the

Pre-filed Testimony ofDeirdreK

Hirner, filedAugust

9,

2001.)

IERG’s Proposed Revisions to the Board’s Proposed Regulatory Language

SUBPART

H:

OUTSTANDING RESOURCE WATER DESIGNATION

Section

102.800

Applicability

This Subpart applies to

any person seeking the adoption,

amendment, or repeal ofan Outstanding

Resource Water (ORW) designation for a surface water body or any water body

segment as

provided by

35

Ill.

Adm.

Code

303.205.

Section

102.810

Petition

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

designation.

The original and nine

(9)

copies ofeach petition must be filed with the Clerk and

one (1) copy each served upon the Agency, th~jllinoisDepartment ofNatural Resources,

and the

Attorney General, the State’s Attorney ofeach county in which the surface water body or water

body segment runs, the chairperson ofthe County Board ofeach county in which the surface

water body or water body segment runs, each member ofthe General Assembly from each

legislative district in which the surface water body or water body segment runs, current NPDES

permittees and NPDES

permit applicants for discharges intothe surface water body or water

body segment, applicants for federally permitted activities that require a certification from the

Agency pursuant to Section

401 ofthe Clean Water Act for the surface water body orwater body

segment. all

owners ofreal property which is located adjacent or contiguous to the surface water

body or water body segment, and to other persons as required by

law.

In addition, the notice

must be published

in a newspaper of general circulation in each county through which the

surface water body orwater body segment runs.

Section

102.820

Petition Contents

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

a)

The language of the proposed rule, amendment, or repealer identifying the surface

waters bocjyor water body segment being proposed for designation as a~ORW~

for which the proponent proposes that an ORW designation be amended or

repealed.

Language being added must be indicated by underscoring,

and

language being deleted must be indicated by strike-outs.

The proposed rule must

be drafted in accordance with

1111.

Adm. Code

100.Subpart C;

1

---

October 11,2001

b)

A statement describing the specific surface water body or waterbody segment for

which the ORW designation is requested or an amendment or repeal of an ORW

de~i~

nation

is sought and the present designation ofthe surface water bç~yor

water body segment;

c)

A statement with supporting

evidence describing the area in which the specific

surface water body or water body segment exists including:

1)

The existence ofwetlands or natural areas; and,

2)

The livitigBiological organisms in that area including endangered or

threatened species of plants, aquatic life-organisms_or wildlife listed

pursuant to the Endangered Species Act,

16 USC

1531

et seq. or the

Illinois Endangered

Species Protection

Act, 41

ILCS i0~

d)

A statement with evidence supporting the designation. the amendment ofthe

designation, or the repeal ofthe designation. including the health,

environmental,

recreational,

aesthetic or economic benefits ofthe designation orthe amendment

or repeal thereof,

e)

A statement with supporting evidence identifying the ORW designation’s

anticipated impact of the ORW designation orthe amendment or repeal thereof on

economic and

social development.

This statement should include:

1)

Impacts on the regional economy;

2)

Impacts on regional

employment;

3)

Impacts on the community;

4)

A comparison of the health and environmental impacts ofan ORW

~

nation to the economic impact ofan ORW designation-j

f)

A statement with supporting evidence describing the existing

and anticipated uses

ofthe specific

surface water body or waterbody

segment for which the ORW

designation is requested.~Lis

sought to be amended or repealed

g)

A statement with supporting

evidence describing the existing water quality ofthe

specific surface water body or waterbody segment warranting the ORW

designation or the amendment or repeal ofsuch designation

h)

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

i)

Copies ofany material to be incorporated by reference within the proposed

designation pursuant to Section 5-75 ofthe Administrative Procedures Act;

2

---

October 11,2001

j)

Proofof service upon

all

persons required to be served pursuant to

Section

102.810 of this Part;

k)

Proof of publication required pursuant to

Section 102.8 10 ofthis Part

kl)

Unless

the

proponent

is

the

Agency~or

the

illinois

Department

of

Natural

Resources~or receives

a waiver

by

the Board,

a petition

signed

by

at

least 200

persons, pursuant to Section

28 ofthe Act and Section

102.160(a); and~

im)

Where any information required by this Section

is inapplicable or unavailable, a

completejustification for such inapplicability or unavailability.

Section

102.830

Board Action

a)

Dismissal

1)

Failure ofthe proponent to satisfy the content requirements for proposals

under this Subpart orfailure to respond to

Board requests for additional

information will render a proposal subject to dismissal for inadequacy.

2)

Failure ofthe proponent to pursue disposition ofthe petition in a timely

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

determination, the Board may consider factors including the history ofthe

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

officer orders.

3)

Any person may file a motion challenging the sufficiency ofthe petition

pursuant to 35

Ill. Adm.

Code lOl.Subpart E.

b)

Designation ofORW.

The Board must may designate a surface water body or

water body segment as an ORW and list it in

35

Ill.

Adm.

Code 303.206 if it finds

that the evidence set forth in the Record before it supports the

following:

1)

The surface water body or waterbody segment

is of uniquely high

biological or recreational quality; and

2)

The benefits ofprotection ofthe surface water body or water body

segment from future degradation outweigh the benefits ofeconomic or

social opportunities that will be lost if the surface water body or water

body segment is designated as an ORW.

(Added at

Ill.

Reg.

___________,

effective

3

---

October 11,2001

TITLE 35:

ENVIRONMENTAL PROTECTION

SUBTITLE C:

WATER POLLUTION

CHAPTER I:

POLLUTION CONTROL BOARD

PART 302

WATER QUALITY STANDARDS

SUBPART

A:

GENERAL WATER QUALITY PROVISIONS

Section

302.100

Definitions

302.101

Scope and Applicability

302.102

Allowed Mixing, Mixing Zones and ZIDS

302.103

Stream Flows

302.104

Main River Temperatures

302.105

Antidegradation Nondegradation

SUBPART

B:

GENERAL USE WATER QUALITY STANDARDS

Section

302.201

Scope and Applicability

302.202

Purpose

302.203

Offensive Conditions

302.204

pH

302.205

Phosphorus

302.206

Dissolved Oxygen

302.207

Radioactivity

302.208

Numeric Standards for Chemical Constituents

302.209

Fecal Coliform

302.210

Other Toxic Substances

302.211

Temperature

302.212

Ammonia Nitrogen and Un-ionized Ammonia

302.2 13

Effluent Modified Waters (Ammonia)

SUBPART

C:

PUBLIC AND FOOD PROCESSING WATER SUPPLY STANDARDS

Section

302.301

Scope and Applicability

302.302

Algicide Permits

302.303

Finished Water Standards

302.304

Chemical Constituents

302.305

Other

Contaminants

302.306

Fecal Coliform

4

---

October

11, 2001

SUBPART D:

SECONDARY CONTACT AND INDIGENOUS AQUATIC LIFE

STANDARDS

Section

302.40 1

Scope and Applicability

302.402

Purpose

302.403

Unnatural Sludge

302.404

-

pH

302.405

Dissolved Oxygen

302.406

Fecal Coliform (Repealed)

302.407

Chemical Constituents

302.408

Temperature

302.409

Cyanide

-

302.4 10

Substances Toxic to Aquatic Life

SUBPART E:

LAKE MICHIGAN BASIN

WATER QUALITY STANDARDS

Section

302.501

Scope,

Applicability, and Definitions

302.502

Dissolved Oxygen

302.503

pH

302.504

Chemical Constituents

302.505

Fecal Coliform

302.506

Temperature

302.507

Thermal Standards for Existing Sources on January

1,

1971

302.508

Thermal Standards for Sources under Construction But Not in Operation on

January

1,

1971

302.509

Other Sources

302.5 10

Incorporations by Reference

302.515

Offensive Conditions

3 02.520

Regulation and Designation ofBioaccumulative

Chemicals of Concern (BCCs)

302.521

Supplemental Antidegradation Provisions for BCCs

302.525

Radioactivity

3 02.530

Supplemental Mixing Provisions for BCCs

302.53 5

Ammonia Nitrogen

302.540

Other Toxic Substances

3 02.545

Data Requirements

302.550

Analytical Testing

3 02.553

Determining the LakeMichigan Aquatic Toxicity Criteria or Values

-

General

Procedures

302.555

Determining the Tier I Lake Michigan Basin

Acute Aquatic Life Toxicity

Criterion (LMAATC):

Independent ofWater Chemistry

3 02.560

Determining the Tier I Lake Michigan Basin

Acute Aquatic Life Toxicity

Criterion (LMAATC):

Dependent on Water Chemistry

S

---

October 11,2001

302.563

Determining the Tier IILake Michigan Basin Acute Aquatic Life Toxicity Value

(LMAATV)

3 02.565

Determining the Lake Michigan Basin Chronic Aquatic Life Toxicity Criterion

(LMCATC) orthe Lake Michigan Basin Chronic Aquatic Life Toxicity Value

(LMCATV)

3 02.570

Procedures for Deriving Bioaccumulation Factors for the Lake Michigan Basin

302.575

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

to Protect Wildlife

302.5 80

Procedures forDeriving Water Quality Criteria

and Values in the Lake Michigan

Basin to Protect Human Health

—

General

3 02.585

Procedures for Determining the Lake Michigan Basin Human Health Threshold

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

Value (LMHHTV)

3 02.590

Procedures for Determining the Lake Michigan Basin Human Health

Nonthreshold Criterion (LMBHNC) orthe Lake Michigan Basin Human Health

Nonthreshold Value (LMIHIHNV)

302.595

Listing ofBioaccumulative Chemicals ofConcern, Derived Criteria and Values

SUBPART

F:

PROCEDURES FOR DETERMINING WATER QUALITY CRITERIA

Section

302.601

Scope and Applicability

302.603

Definitions

302.604

Mathematical Abbreviations

302.606

Data Requirements

302.6 12

Determining the Acute Aquatic Toxicity Criterion for an Individual

Substance

—

General Procedures

302.6 15

Determining the Acute Aquatic Toxicity Criterion

-

Toxicity Independent of

Water Chemistry

302.6 18

Determining the Acute Aquatic Toxicity Criterion

-

Toxicity Dependent on Water

Chemistry

302.621

Determining the Acute Aquatic Toxicity Criterion

-

Procedures for Combinations

of Substances

302.627

Determining the Chronic Aquatic Toxicity Criterion for an Individual Substance

-

General Procedures

302.630

Determining the Chronic Aquatic Toxicity Criterion

-

Procedure for Combination

ofSubstances

302.633

The Wild and

Domestic Animal Protection Criterion

302.642

The Human Threshold Criterion

3 02.645

Determining the Acceptable Daily Intake

3 02.648

Determining the Human Threshold Criterion

302.65 1

The Human Nonthreshold Criterion

3 02.654

Determining the Risk Associated Intake

302.657

Determining the Human Nonthreshold Criterion

3 02.658

Stream Flow for Application ofHuman Nonthreshold Criterion

302.660

Bioconcentration Factor

6

---

October 11,2001

302.663

Determination of BioconcentrationFactor

302.666

Utilizing the Bioconcentration Factor

302.669

Listing ofDerived Criteria

APPENDIX A

References to Previous Rules

APPENDIX B

Sources ofCodified

Sections

AUTHORITY:

Implementing Section

13

and authorized by Sections

11(b) and

27 ofthe

Environmental Protection Act 415

ILCS

5/13

11(b), and 27

SOURCE:

Filed with the Secretary of State January

1,

1978; amended

at

2111. Reg.

44,

p.

151,

effective November 2,

1978; amended

at

3

Ill.

Reg.

20,

p.

95,

effective May 17,

1979; amended

at 3 Iii. Reg.

25,

p.

190,

effective June 21,

1979;

codified at 6 Ill. Reg. 7818; amended

at 6 Ill.

Reg.

11161, effective September

7,

1982; amended at 6

Ill. Reg.

13750, effective October 26,

1982; amended at

8 Ill. Reg.

1629,

effective January

18,

1984; peremptory amendments at

10 Ill.

Reg.

461, effective December 23,

1985; amended at R87-27 at

12 Ill.

Reg.

9911, effective May

27,

1988; amended at R85-29 at 12 Ill. Reg.

12082,

effective July

11,

1988; amended

in R88-1

at

13

Ill.

Reg.

5998,

effective April

18,

1989;

amended in R88-21(A) at

14111.

Reg.

2899, effective

February 13,

1990; amended

in R88-21(B) at 14 Ill. Reg.

11974, effective July

9,

1990;

amended

in

R94-1(A) at 20

Ill.

Reg.

7682, effective May 24,

1996;

amended in R94-1(B) at 21111.

Reg.

370,

effective December 23,

1996; expedited correction at 21111.

Reg.

6273,

effective December

23,

1996; amended in R97-25

at 21111. Reg.

1356,

effective December 24,

1997;

amended in

R01-13

at

___________

Ill.

Reg. ___________,effective

___________

Section 302.105

Antidegradation

-

The purpose of this Section

is to protect existing uses of all waters ofthe

State of Illinois,

maintain the quality ofwaters with quality that is better than water quality standards, and

prevent

unnecessary deterioration ofwaters ofthe

State.

a)

Existing Uses

Uses actually attained in the~,

surface water body

or water body segment on or after

November 28,

1975,

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

be

maintained and protected.

Examples of degradation ofexisting uses ofthe waters of

the

State include:

1)

an

action that would result

in the deterioration ofthe existing

aquatic

community, such as a shift from a

community of predominantly pollutant-

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

2)

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

whose presence is necessary to sustain commercial or recreational

activities; or

3)

an action that would preclude

continued use ofa surface water body or

7

---

October 11,2001

water body segment for a public water supply or for recreational or

commercial fishing,

swimming, paddling or boating.

b)

Outstanding Resource Waters

1)

Waters that

are designated as Outstanding Resource Waters (ORW5)

pursuant to 35

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

303.206 must notbe lowered in quality except as-pfevided~-belewb~:

A)

Activities that result in short-term, temporary (i.e.,

weeks or

months) lowering ofwater

quality

in an

ORW or

B)

Existing site stormwater discharges that comply with applicable

federal and state stormwater management regulations

and do not

result in a violation

ofany water quality standards.

2)

Any activity hiunder subsections (b)(1)(A) or (b)(1)(B) ofthis Section ~

any other increase in pollutant loading that requireswould necessitate the

issuance ofa new, renewed or

modified-a National Pollutant Discharge

Elimination System (NPDES) Permit or require a Clean

Water Act (CWA)

Section401 certification must also

comply with subsection (c)(2) of this

Section.

3)

Any activity listed

in

subsection (b)(1) or any other proposed increase in

pollutant loading to anORW must also meetthe followingrequirements:

A)

All

existing uses ofthe water will be

fully protected; and,

B)

Except for activities falling under one of the exceptions provided

in Subsection (b)(1)(A) or (B) above,

i)

Theproposed increase in pollutant loading is necessary for

an

activity that will improve water quality in the ORW; and

Gii)

The improvement could not be practicably achieved

without the proposed increase in pollutant loading.

4)

Any proposed increase in pollutant loading to an

ORW that would

requireing the issuance ofa new, renewed, or modifiedan NPDES permit

Permit or a CWA 401

certification for an ORW must be assessed pursuant

to 35 Ill.

Adm.

Code 309. 141(i)subsection (f)

to

determine compliance

with this Section.

5)

Any activity

requiring a CWA Section

401

certification for an ORW must

be

assessed during the Section

401

certification process to determine

compliance with this

Section.

8

---

October 11,2001

c)

High Quality Waters

1)

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

the State whose existing quality is better than any ofthe established

standards ofthis Part must be maintained in their present high quality,

unless the lowering ofwater quality is necessary to accommodate

importanteconomic or social development.

2)

TheAgency must assess any proposed increase in pollutant loading that

necessitates the

issuance of a new, renewed or modified NPDES ~ermit~

or any activity requiring aCWA Section401 certification~to determine

compliance with this

Section 302.105. provided, however, that if a

ppllutant is

subject to an existing permit limit,

an assessment

shall not be

required unless the proposed increase in pollutant loading

would result in

an exceedence of such permit limit.

The assessment to determine

compliance with this Section 302.105

must be made on a case-by-case

basis.

In making this assessment, the Agency must:

A)

Consider the fate and effect ofany parameters proposed for an

increased pollutant loading;and~

B)

On a case-by-case basis, Aassure the following:

i)

The applicable numeric or narrative water quality standard

will not be exceeded as a result ofthe

proposed activity;

ii)

All existing uses will be fully protected;

iii)

All technically and

economically reasonable

measures to

avoid or minimize the extent ofthe proposed increase in

pollutant loadinghave been incorporated into the proposed

activity; and

iv)

The activity that results in an increased pollutant loading

will benefit thecommunity at

large~

and,-

C)

Utilize the following information sources, when available:

i)

Information, dataor reports available to the Agency from

its own sources;

ii)

Information, data or

reports supplied by the applicant;

iii)

Agency experience with

factually similar permitting

scenarios; oi

9

---

October 11,2001

iv)

Any demonstration prepared by the permit applicant that

the proposed increase

in loading ofa pollutant, other than a

bioacculative chemical ofconcern, as that term is

defined

in Section 302.231

ofthis Part, does not utilize more than

ten percent ofthe available assimilative capacity ofthe

receiving water for the constituent under consideration, or

y~ivy

Any other valid information available to the Agency~

d)

Activities Not Subject to a Further Antidegradation Assessment

The following activities will not be

subject to a further antidegradation assessment

pursuant to subsection (c) ofthis

Section, except

as otherwise set forth below:T

1)

Short-term, temporary (i.e., weeks or months)

lowering ofwater

quality;

2)

Bypasses that are not prohibited at 40

C.F.R.

122.4 1(m);

3)

Response actions-pursuant to the Comprehensive Environmental

Response, Compensation and Liability Act (CERCLA),

as amended,

corrective actions pursuant to the Resource Conservation and Recovery

Act (RCRA), as amended~

or response actions or corrective action under

similar federal or State authority, taken to alleviate a release or threatened

release into the environment of hazardous substances,

pollutants or

contaminants which may pose a danger to public health or welfare;

4)

Thermal discharges that have been approved through

a CWA Section

316(a) demonstration;

5)

New orincreased

discharges ofa non-contact cooling water-

A)

without additives, except as provided

in subsection (d)(5)(B) of

this

Section,

returned to the same body ofwater from which

it was

taken~

as defined by

35

Ill.

Adm.

Code 352.104, provided that the

discharge complies with applicable Illinois thermal standards; ~

B)

containing chlorine when the non-contact cooling water is treated

to

remove residual chlorine and

returned to the same body ofwater

from which it was taken, as defined in 35

Ill.

Adm.

Code 352.104,

provided that the discharge complies with applicable Illinois

thermal and

effluent standards.

6)

Discharges

permitted under

a current general

NPDES

permit

as provided

by

415

ILCS

5/39(b)

or

a

general

CWA,

Section

401

certificationnationwide or regional

Section 404 ofthe CWA permit are not

10

---

October 11,2001

subject to

facility-specific

antidegradation review;

however,

the

Agency

must assure that individual permits

or certification are required prior to

all

new

pollutant

loadings

or

hydrological

modifications

that

necessitate

a

new,

renewed

or

modified

NPDES

permit

or

CWA,

Section

401

certification that affect waters

designated as Outstanding Resource Waters

pursuant

to

35

Ill.

Adm.

Code

303.205

and

listed

in

35

Ill.

Adm.

Code

303.206waters ofparticular biological significance ~

7)

Changes A change to a permit limit or inclusion of a new permit limitation

that does not result in an actual increase of a pollutant loading, such as

those

stemming

from

improved

monitoring

data,

new analytical

testing

methods, new or revised technology or water quality based

effluent limits

e)

Lake Michigan Basin

Waters in the Lake Michigan basin as identified in

35

Ill.

Adm.

Code 303 .443

are also

subject to the requirements applicable to bioaccumulative

chemicals-of-concern found at

Section 302.521

ofthis Part.

Antidegradation Assessments

In conducting an antidegradation assessment pursuant to this

Section, the Agency must

comply with the following procedures.

1)

A permit

application for any proposed increase in

pollutant loading that

necessitates a new, renewed,

or modified NPDES permit,

with a new or

increased permit limit, or a CWA Section

401

certification, must include,

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

app1icati~

meets the requirements of Section 302.105, the following

information:

A)

Identification and characterization

ni

‘ nr

..

by the

proposed load increase or proposed activity and their existing uses.

Characterization must address physical, biological

and chemical

conditions ofthe waters;

B)

Identification and

quantification ofthe proposed load increases for

the applicable parameters and ofthe potential impacts ofthe

proposed activity on the affected waters;

C)

The purpose and

anticipated benefits of theproposed activity. Such

benefits may include:

i)

Providing a centralized wastewater collection and treatment

system for a previously unsewered community

11

---

October 11,2001

ii)

Expansion to

provide service for anticipated residential or

industrial growth consistent with a community’s long range

urban planning

iii)

Addition of a new product line or production increase-er

modification at an industrial facility;

or,

iv)-

Anh~~..,~-ef4he-

at a facility.

i;;;l~

~

atipito

Section

‘101

ofthe CWA that result in less ofa load increase, no

load incr-ease or minimal environmental degradation.

Such

alternatives may include:

1)

Additicrnal treatment levels including no discharge

alternatives;

nr~e

ann

-iseh~

ofwaste to alternat~~~ti~

including

publicly-owned treatment works

and streams with greater

assimilative

capacity; or

E)

Any

~

:.r....__..~.:...._

~.1_

A

---‘--7

F)

Any ofthe infc

sources identified in su~

2)

The Agency must complete an antidegradation demonstration review in

accordance with the provisions ofthis

Section.

A)

The antidegradation assessment pursuant to this

Section is a part of

the NPDES permitting process or the CWA Section 401

certification process.

However, applicants may initiate

communication with the Agency, preferably during the planning

stage for any load increase.

Communication will help assure the

adequacy ofinformation necessary to -constitute an

antidegradation

demonstration and

avoid or minimize

delays and requests for

supplemental information during the permitting stage.

The

Agency review process must be initiated by:

.,,,

;.~c.-...-.-.....i

.-~..

_________________________________

project prior to filing ofa

permit application; or

retention ofcurrent employment levels

~—

iii)

Manufacturing practices that i

i)

im1n,ir~r

renile”

r~f

a. proponent

~

12

---

October 11,2001

ii)

receipt ofapplication-for

an NPDES

permit issuance,

renewal or modification,

or a CWA Section

401

certification.

B)

A proponent seeking an immediate review ofthe results ofthe

Agency’ s review pursuant to subsection (~(2)(A~(ii)

must do

so

within the NPDES

permit process orthe CWA Section 40-1

r.e.rtific.nticrn

nrnce.g~

I--

-

C)

~~er

a review pursuant to subseet

consult with the proponent

and respond:

i)

in writing to written requests.

The written response will

include a statement by the Agency

indicating whether the

demonstration, based upon the information provided or

information acquired by the Agency during the review

process, meets the criteria ofthis Section

ii)-

verbally to verbal

iii)

in

a manner otherwise agreed upon.

D)

After its review, the Agency must produce a written analysis

addressing the requirements ofthis

Section and provide a decision

yielding one ofthe following results-

i)

Ifthe demonstration meets the requirements of this

Section,

then the Agency must proceed with public

notice ofthe

NPDES permit or CWA Section

401

certification and

include the written analysis as a part ofthe fact sheet

accompanying the public notice;

ii)

Ifthe demonstration does not meet the requirements ofthis

Section, then the Agency must provide a written analysis to

the applicant and

must be

available to discuss the

deficiencies that led to the disapproval.

The Agency may

suggest methods to remedy the conflicts with the

requirements ofthis

Section;

~mon~L!

aLli

IF”.-.

Ifthe d

~n do

ot meet the requirements

~‘

Section,

but some lowering ofwater quality is allowable,

then the Agency will contactthe applicant with the results

ofthe review.

Ifthe reduced loading increase is acceptable

to the applicant, upon the receipt of an amended

demonstration, the Agency will proceed to public notice; or

if the reduced loading increase is not acceptable to the

-(f~(2)(A)(i),the Agency

iii)

13

---

October 11,2001

applicant, the Agency will transmit

its

written

review to the

applicant in the context of a NPDES

permit

denial or-a

CWA Section

401

certification denial.

~z~-

‘v

including identification of

water

A)-

A-dc~rip&~.

~f4he-

.

quality parameters which will experience the increased pollutant

loading;

B)

Identification of the affected water segment, any downstream

water segment also

expected to experience a lowering ofwater

quality,

characterization ofthe designated and current uses ofthe

affected segments and identification of which uses are most

sensitive to the proposed load increase;

C)

A

summary ofany review

comments

and recommendations

provided by Illinois Department of

Natural

Resources,

local or

regional planning commissions, zoning boards and any

other

entities the Agency consults

regarding the proposal;

D)

An

overview

of alternatives considered by the applicant and

identification of any provisions or alternatives

imposed to lessen

the load increase- associated with the proposed activity;

and

E)

The name and telephone number ofa contact person at the Agenc

who can provide additional information.

(Amended at

___________

Ill.

Reg.

___________,effective

___________

Section 302.105 Nendegradation

Except

as otherwise provided

in Section 302.520, waters whose existing quality is better than

tF

established-stan

maintained in their present

high

quality.

Such waters will not be lowered in quality

unless and until

it is affirmatively

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

any appropriate

beneficial uses made of~

or presently possible in,

such waters

and that such change is justifiable

as-a result ofnecessary economic or social development.

3)

The Agency will conduct public notice and public participation through

the public notice procedures found in 35

Ill.

Adm.

Code 309.109 or CWA

Section

401

certifications.

The Agency must incorporate the following

information into a fact sheet accompanying the public notice:

14

---

October 11,2001

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE C:

WATER POLLUTION

CHAPTER I: POLLUTION

CONTROL BOARD

PART

303

WATER USE DESIGNATIONS AND SITE SPECIFIC WATER QUALITY

STANDARDS

SUBPART

A:

GENERAL

PROVISIONS

Section

303.100

Scope and Applicability

303.101

Multiple Designations

303.102

Rulemaking Required

SUBPART

B:

NONSPECIFIC WATER USE DESIGNATIONS

Section

303.200

Scope

and Applicability

3 03.201

General Use Waters

3 03.202

Public and Food Processing Water Supplies

3 03.203

Underground Waters

3 03.204

Secondary Contact and Indigenous Aquatic Life Waters

3 03.205

Outstanding Resource Waters

303.206

List of Outstanding Resource Waters

SUBPART C:

SPECIFIC

USE DESIGNATIONS AND SITE

SPECIFIC WATER QUALITY STANDARDS

Section

303.300

Scope and Applicability

303.301

Organization

303.311

Ohio River Temperature

303.312

Waters Receiving Fluorspar Mine Drainage

303.32 1

Wabash

River

Temperature

303.322

Unnamed Tributary ofthe Vermilion River

3 03.323

Sugar Creek and Its Unnamed Tributary

303.331

Mississippi RiverNorth Temperature

303.34 1

Mississippi River North Central Temperature

303.351

Mississippi River South Central Temperature

303.3 52

Unnamed Tributary ofWood River

Creek

303.353

Schoenberger

Creek; Unnamed Tributary ofCahokia Canal

303.361

Mississippi River South Temperature

303.400

BanklineDisposal Along the Illinois

Waterway/River

303.430

Unnamed Tributaryto Dutch Creek

303.431

LongPoint Slough and

Its Unnamed Tributary

15

---

October 11,2001

303.441

Secondary Contact Waters

3 03.442

Waters Not Designated for Public Water Supply

303.443

Lake Michigan Basin

3 03.444

Salt Creek, Higgins Creek, West Branch ofthe DuPage River, Des Plaines River

SUBPART

D:

THERMAL DISCHARGES

Section

303.500

Scope and Applicability

3 03.502

Lake Sangchris Thermal Discharges

APPENDIX A

References to Previous Rules

APPENDIX B

Sources of Codified Sections

AUTHORITY:

Implementing

Section

13 and

authorized by Sections 11(b) and 27 ofthe

Environmental Protection Act 415

ILCS 5/13,

11(b), and 27.

SOURCE:

Filed with the Secretary ofState January

1,

1978; amended at 2 Ill.

Reg. 27,

p. 221,

effective July

5,

1978; amended at 3 Ill. Reg. 20, p.

95,

effectiveMay 17, 1979; amended at

5

Ill.

Reg. 11592, effective October 19, 1981; codified at 6111. Reg. 7818; amended at 6111. Reg. 11161

effective September 7, 1982; amended at 7 Ill. Reg. 8111, effective June23, 1983; amended in

R87-27 at 12111. Reg. 9917, effectiveMay 27, 1988; amended inR87-2 at 13 Ill. Reg.

15649,

effective September 22, 1989; amended

in R87-36 at 14

Ill. Reg. 9460, effectiveMay 31, 1990;

amended in R86-14 at 14 Ill. Reg. 20724, effective December 18, 1990; amended inR89-14(C) at

16 Ill. Reg. 14684, effective September 10, 1992;

amended in R92-17 at 18

Ill. Reg.2981,

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

amended in R93-13 at 19111. Reg. 1310, effective January 30, 1995; amended

in R95-14 at 20111.

Reg. 3534, effectiveFebruary 8, 1996; amended inR97-25 at22 Ill. Reg. 1403, effective

December 24, 1997; amended inR01-13 at

___________

Ill. Reg.

___________,

effective

Section 303.205

Outstanding ResourceWaters

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

is of

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

pursuant to

35

Ill.

Adm.

Code

102.Subpart H.

a)

Outstanding Resource Waters (“ORW”) shall be

listed in

Section 303.206 ofthis

Part.

In addition to

all other applicable use designations and water quality

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

provision ofSection 302.105(b).

b)

A petition to designate a surface water body or water body segment as an ORW

mustbe submitted to the Illinois PollutionControl Board pursuant to the

procedural rules found in 35 Ill.

Adm.

Code

102.Subpart H.

16

---

October 11,2001

(Added at

____________

Ill.

Reg.

____________,

effective

____________

Section 303.206

List of Outstanding Resource Waters

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

Adm.

Code

102.Subpart J~.

(Added at

___________

ill. Reg.

___________,

effective

17

---

October

11, 2001

TITLE 35:

ENVIRONMENTAL PROTECTION

SUBTITLE C:

WATER POLLUTION

CHAPTER I:

POLLUTION CONTROL BOARD

PART 309

PERMITS

SUBPART

A:

NPDES

PERMITS

Section

309.101

Preamble

309.102

NPDES Permit Required

309.103

Application

—

General

309.104

Renewal

309.105

Authority to Deny NPDES

Permits

309.106

Access to Facilities and

Further Information

309.107

Distribution ofApplications

309.108

Tentative Determination and Draft Permit

309.109

PublicNotice

309.110

Contents ofPublic Notice ofApplication

309.111

Combined Notices

309.112

Agency Action After Comment Period

309.113

Fact Sheets

309.114

Notice to Other Governmental Agencies

309.115

Public Hearings on NPDES Permit Applications

309.116

Notice ofAgency Hearing

309.117

Agency Hearing

309.118

Agency Hearing File

309.119

Agency Action After Hearing

309.141

Terms and Conditions ofNPDES Permits

309.142

Water Quality Standards and Waste Load Allocation

309.143

Effluent Limitations

309.144

Federal New Source Standards ofPerformance

309.145

Duration ofPermits

309.146

Authority to Establish Recording, Reporting, Monitoring and Sampling

Requirements

309.147

Authority to Apply Entry and Inspection Requirements

309.148

Schedules ofCompliance

309.149

Authority to Require Notice of Introduction ofPollutants into Publicly

Owned Treatment Works

309.150

Authority to Ensure Compliance by Industrial Users with Sections 204(b),

307 and 308 ofthe Clean Water Act

309.151

Maintenance and Equipment

309.152

Toxic Pollutants

309.153

Deep Well Disposal ofPollutants (Repealed)

309.154

Authorization to Construct

309.155

Sewage

Sludge Disposal

18

---

October 11,2001

309.156

Total Dissolved

Solids Reporting and Monitoring

309.181

Appeal ofFinal Agency Action on a Permit Application

309.182

Authority to Modify,

Suspend or Revoke Permits

309.183

Revision of Schedule ofCompliance

309.184

Permit Modification Pursuant to Variance

309.185

Public Access to Information

309.191

Effective Date

SUBPART B:

OTHER PERMITS

Section

309.201

Preamble

309.202

Construction Permits

3 09.203

Operating Permits; New or Modified Sources

309.204

Operating Permits; Existing Sources

309.205

Joint Construction

and

Operating Permits

309.206

Experimental Permits

3 09.207

Former Permits (Repealed)

3 09.208

Permits for Sites Receiving Sludge for Land Application

309.221

Applications

-

Contents

309.222

Applications

-

Signatures and Authorizations

309.223

Applications

-

Registered or Certified Mail

309.224

Applications

-

Time to Apply

309.225

Applications

-

Filing and Final Action by Agency

309.24

1

Standards for Issuance

3 09.242

Duration ofPermits Issued Under Subpart B

309.243

Conditions

3 09.244

Appeals

from Conditions

in Permits

309.26

1

Permit No Defense

309.262

Design, Operation and Maintenance Criteria

309.263

Modification ofPermits

309.264

Permit

Revocation

309.265

Approval ofFederal Permits

309.266

Procedures

309.28

1

Effective Date

309.282

Severability

Appendix

A

References to Previous

Rules

AUTHORITY:

Implementing Sections

13

and

13.3

and

authorized by

Section 27 ofthe

Environmental Protection Act

415

ILCS

5/13,

13.3

and 27.

SOURCE:

Adopted in R71-14,

at 4 PCB

3, March 7,

1972; amended

in R73-1 1,

12, at

14 PCB

661, December

5,

1974, at

16 PCB

511,

April 24,

1975,

and at 28 PCB

509, December 20,

1977;

-amended in R73-1

1,

12, at 29 PCB 477, at 2

Ill.

Reg.

16,

p.

20,

effective April 20,

1978;

amended in R79-13, at 39 PCB 263,

at 4 Ill. Reg.

34,

p.

159,

effective August 7,

1980;

amended

19

---

October

11,2001

inR77-12B,

at4l

PCB 369,

at SIll. Reg.

6384,

effectiveMay 28,

1981;

amended inR76-21,

at

44 PCB 203, at 6

Ill. Reg.

563,

effective December

24,

1981; codified at

6111.

Reg.

7818;

amended in R82-5,

10, at 54 PCB 411,

at 8

Ill.

Reg.

1612,

effective January

18,

1984; amended

in R86-44 at

12

Ill. Reg. 2495

effective January 13,

1988; amended inR88-1

at

13 Ill. Reg.

5993,

effective April

18,

1989; amended in R88-21(A) at

14 Ill. Reg.

2892, effective February

13,

1990;

amended in R91-5

at

16

Ill.

Reg.

7339,

effective April 27,

1992; amended

in R95-22 at 20

Ill. Reg.

5526,

effective April

1,

1996; amended in

R99-8

at 23

Ill. Reg.

11287,

effective August

26,

1999~amended in R01-13

at

Ill.

Reg.

,

effective

Section 309.103

Application

-

General1

a)

Application Forms

*

*

*2

5)

A permit application for any proposed increase in pollutant loading that

necessitates

the issuance of a new, renewed,

or

modified NPDES permit,

with a new or increased permit limitor a C\VA Section

401

certification,

must includes, to the extent necessary for the Agency to determine that the

proposed activity permit application

meets the requirements ofSection ~

Ill. Adm.

Code 302.105, the following information:

A)

Identification and characterization of the waters

body affected

by

the proposed

load increase or proposed

activity and their

water

body’s

existing uses;,

which- ?characterization must

address

physical, biological and chemical conditions ofthe waters

body

B)

Identification and quantification ofthe proposed load increases for

the applicable parameters and ofthe potential impacts ofthe

proposed activity on the affected waters

body

C)

The purpose and anticipated benefits ofthe proposed activity~

which

anticipated—Such benefits may include, but are not limited

to:

i)

Providing

a centralized wastewater collection and treatment

system for a previously unsewered community;

1

IERG has included the Agency’s proposed Sections 309.103, 309.108,

309.113, and 309.141,

with revisions thereto as proposed by the Agency.

In addition, IERGhas proposed additional

revisions to the Agency’s proposed language.

ERG’s

proposed revisions are set forth in bold

type.

2

~

*

‘K”

denotes portions ofPart 309 which are not amended by the antidegradation

regulations,

and which ERG

has omitted in order to save space and ~,,reduce the amount

of

paper required for this Exhibit A.

20

---

October

11,

2001

ii)

Expansion to provide service for anticipated residential or

industrial growth consistent with a community’s long range

urban planning;

iii)

Addition ofa new product line or production increase or

modification at an

industrial facility; or

iv)

An increase or the retention ofcurrent employment levels

at a facility;~

D)

Assessments ofalternatives to proposed increases in pollutant

loading or activities subject to Agency certification pursuant to

Section

401

ofthe CWA that

would

result in

a lesser o1-a-load

increase, no load increase orminimal environmental degradation9

which

Such

alternatives may include, but are not limited to:

i)

Additional treatment levels including no discharge

alternatives;

ii)

Discharge ofwaste to alternate locations

including

publicly-owned treatment works and-~streamswith

greater assimilative capacity; or

iii)

Manufacturing practices that incorporate pollution

prevention techniques.

E)

Any additional information that the Agencv~

may request.

b)

Animal Waste Facilities

*

*

*

(Source:

Amended at 20

111. Reg.

5526,

effective April

1,

1996, Amended at

Ill. Reg.

effective

,

2002.)

Section 309.108

Tentative Determination and Draft Permit

Following the receipt ofa complete application for an NPDES Permit, the Agency shall prepare

a tentative determination.

Such determination shall include at least the following:

*

*

*

d)

For

any proposed increase in pollutant loading that

necessitates the issuance of a

new, renewed, or modified NPDES permit, with a new or increased permit limit

21

---

October 11,2001

subject to review pursuant to 35 Ill. Adm.

Code

3 02.105, the tentative

determination ofthe Agency with regard to 35

Ill.

Adm.

Code 302.105.

1.)

After

its assessment pursuant to Section

309. 141(i)(f)(2)(A)(ii)review, the

Agency must produce a written analysis addressing the requirements of~

Ill.

Adm.

Code 302.105 this

Section and provide a decision yielding one

ofthe following results.

A)

Ifthe proposed activitydemonstration meets the requirements of~

Ill.

Adm.

Code 302. l05this Section,

then the Agency must proceed

with public notice ofthe NPDES permit or CWA

Section

401

certification and

include the written analysis as a part ofthe fact

sheet accompanying the public notice;

B)

If

the proposed activitydemonstration does not meet the

requirements of35

Ill. Adm.

Code 302.l0Sthis Section, then the

Agency must provide a written analysis to the applicant and

must

be available to discuss the deficiencies that led to the disapproval.

The Agency may

suggest methods to remedy the conflicts with the

requirements of35

Ill.

Adm.

Code 302.lOSthi-s-Section.

C)

Ifthe proposed activitydemonstration does not meet the

requirements of35

Ill. Adm.

Code 302.l05this Section, but

some

lowering ofwater quality is allowable, then the Agency will—must

contact the applicant with the results ofthe review.

Ifthe reduced

loading increase is acceptable to the applicant, upon the receipt of

an amended applicationdemonstration, the Agency will proceed to

public

notice-ec

~

Ifthe reduced loading increase is not acceptable to the applicant, the

Agency

will-must_transmit

its

written analysisreview to the applicant in

the

contcxt form

of a NPDES permit

denial or a CWA Section 401

certification denial.

ed)

Upon tentative determination to issue

or deny an NPDES Permit:

1)

Ifthe determination is to issue the permit the Agency shall notify the

applicant in writing ofthe content ofthe tentative determination and

draft

permit and ofits intent to circulate public notice ofissuance

in accordance

with Sections 309.108 through 309.112;

2)

Ifthe determination is to deny the permit, the Agency

shall notify the

applicant in writing ofthe tentative determination and ofits

intent to

circulate public notice ofdenial,

in accordance with Sections 309,108

through 309.112.

In the case of denial, notice to the applicant shall

22

---

October

11, 2001

include a statement ofthe reasons for denial, as required by Section 39(a)

ofthe Act.

(Source:

Amended at

Ill. Reg.

,

effective

,

2001.)

Section 309.113

Fact Sheets

a)

For every discharge which has a total volume ofmore than 500,000 gallons (1.9

megaliters) on any day ofthe year, the Agency shall prepare and,

following public

notice,

shall send upon request to any

person a fact sheet with respect to the

application described in the public notice.

The contents of such fact sheets

shall

include at least the following information:

*

*

*

6)

For

any proposed increase in pollutant loading that necessitates ~

issuance ofa new, renewed,

or modified

NPDES

permit, witha

new or

increased permit limit subject to review pursuant to 35

Ill. Adm.

Code

302.105, the following information:

A)

A description ofthe activity,

including identification of water

quality parameters

for which the Agency has anproved foi’

which there will bc

which will experience the increased pollutant

loading;

B)

Identification

ofthe affected

water body or water body

segment,

any downstream water

body or water body

segment also

expected

to experience a lowering ofwater quality,

characterization ofthe

designated and current uses ofthe affected

water body or water

body

segments and identification ofwhich—those_uses

that

are

most sensitive to the proposed load increase;

C)

A summary ofany review comments an4-~recommendations

provided by tj~IllinoisDepartment ofNatural Resources, local or

regional

planning commissions, zoning boards and-~anyother

entities the Agency consults regardingthe proposal;

D)

An

overview of alternatives considered by the applicant and

identification of any provisions or alternatives imposed

by the

Agency

to lessen the load increase associated with the proposed

activity; and

E)

The name and

telephone number ofa contact person at the Agency

who can provide additional information.

23

---

October 11,2001

b)

The Agency shall add the name of any person or group, upon request, to

a mailing

list to receive copies offact sheets.

(Source:

Amended at

Ill. Reg.

,

effective

,

2001.’)

SUBPART A: NPDES PERMITS

Section 309.141

Terms and

Conditions ofNPDES Permits

In establishing the terms and conditions of each issued NPDES Permit, the Agency shall apply

and ensure compliance with all ofthe following, whenever applicable:

*

*

*

i)

Ifthe NPDES

permit is for a discharge that constitutes

an increase in pollutant

loading that necessitates

the issuance of a

new, renewed or modified

NPDES

permit. the Agency must complete an

antidegradation assessment demonstration

review in accordance

with

the provisions ofthis subsectionto

determine

comnliance with

35

Ill.

Adm.

Code

302.105.

However, if a

pollutant is subject

to an existing permit limit, an assessment shall not be required unless the

proposed increase in

pollutant loading would result

in an exceedance ofsuch

permit limit.

The

assessment to determine compliance with 35 Ill.

Adm.

Code

302.105

must be

made on a case-by-case basis.

In making such an

assessment.

the Agency must consider:

1)

th~..criteria

stated in

35 Ill.

Adm.

Code 302. 105(c)(2); and,

~)

the following information:

A)

Identification and characterization ofthe waters

body

affected by

the proposed load increase or proposed activity and their

water

body’s

existing uses, which

—?characterization must address

physical, biological and

chemical

conditions ofthe waters

body

B)

Identification and quantification ofthe proposed load increases for

the applicable parameters and ofthe potential impacts ofthe

proposed activity on the affected waters

body or water body

segment

C)

The purpose

and anticipated benefits ofthe proposed activity;~

which anticipated

Such benefits

may include, but arenot limited

to:

24

---

October 11,

2001

i)

Providing a centralized wastewater collection and treatment

system for a previously unsewered community;

ii)

Expansion to provide service for anticipated residential or

industrial growth consistent with a community’s long range

urban planning;

iii)

Addition of anewproduct line or production increase or

modification at an industrial

facility; or

iv)

An increase orthe retention ofcurrent employment levels

at a facility.

D)

Assessments ofalternatives to proposed increases in pollutant

loading or activities subject to Agency certification pursuant to

Section 401

of the CWA that

would

result in a lesser of-a-load

increase, no load increase or minimal environmental degradation;~

which-Sueh

alternatives include,

but are not limited to:

i)

Additional treatment levels including no discharge

alternatives;

ii)

Discharge ofwaste to alternate locations including

publicly-owned treatment works fII1d-~streamswith

greater assimilative capacity; or

iii)

Manufacturing practices that incorporate pollution

prevention techniques, and,

E)

Any ofthe information sources identified in

subsection 302.105

(d)(3)35 Ill.

Adm.

Code 302.105(c)(2)(C).

3)

The Agency will conduct public notice and

public participation through the public

notice procedures found in 35

Ill.

Adm.

Code

309.109 or CWA Section

401

certification denial.

25