ILLINOIS POLLUTION CONTROL BOARD

December 6, 2001

 

IN THE MATTER OF:

 

REVISION TO ANTIDEGRADATION

RULES: 35 ILL. ADM. CODE 302.105,

303.205, 303.206, and 102.800-102.830

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R01-13

(Rulemaking - Water)

 

Proposed Rule. Second Notice.

 

OPINION AND ORDER OF THE BOARD (by G.T. Girard, R.C. Flemal, N.J. Melas):

On August 30, 2000, the Illinois Environmental Protection Agency (Agency) filed a

proposal for rulemaking (Prop.) to amend the Board’s water “nondegradation” rules at 35 Ill.

Adm. Code 302.105, 303.205 and 303.206. The proposed rules would implement the required

federal concepts of antidegradation and outstanding resource waters for the State of Illinois. The

Agency also proposed amendments to the Board’s procedural rules at 35 Ill. Adm. Code

106.990-106.995 to include provisions for designating outstanding resource waters in Illinois.

On September 7, 2000, the Board accepted the proposal for hearing.

After the Board accepted this matter for hearing, the Board held three hearings before

Board Hearing Officer Marie Tipsord. The first and third hearings (November 17, 2000 and

February 6, 2001), were held in Chicago, Illinois. The second hearing (December 6, 2000), was

held in Springfield, Illinois. Testimony was heard from the Agency, the Department of Natural

Resources (DNR), Illinois Environmental Regulatory Group (IERG), American Bottoms

Regional Wastewater Treatment Facility, Village of Sauget, Illinois, Prairie Rivers Network, the

Environmental Law & Policy Center, Friends of the Fox River, McHenry County Defenders and

the Sierra Club.

1

In addition, all of these participants except the Department filed post-hearing

public comments. The Board received a total of 47 comments prior to the first notice, which

included 42 comments from groups and individuals not named in this paragraph. On June 21,

2001, after reviewing the comments and testimony and making changes to the proposal based on

those comments and testimony, the Board proceeded to first notice with the rules.

2

 

After the Board adopted the first-notice proposal, the Board held a fourth hearing on

August 24, 2001 in Chicago. At that hearing testimony was provided by Toby Frevert

representing the Agency, Dierdre K. Hirner representing IERG, Jack Darin representing Sierra

Club, Illinois Chapter, Cynthia L. Skrukrud representing Friends of the Fox River, and Robert J.

1

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

McHenry County Defenders and the Sierra Club all participated both individually and as a

group. Therefore, when referring to their joint comments and testimony, they will be

collectively called “Environmental Groups”.

 

2

For more details on the Board’s first-notice opinion and order see Revisions to Antidegradation

Rules: 35 Ill. Adm. Code 302.105, 303.205, 303.206, and 102.800-102.830, R01-13 (June 21,

2001).

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2

Moore representing Prairie Rivers Network. All of these groups filed post-hearing comments

that will be discussed in detail below. After reviewing the testimony and comments, the Board

finds that it is appropriate to proceed to second notice with this rule.

SUMMARY OF THE PROPOSAL

The proposed amendments add new requirements concerning antidegradation of waters in

the State to the Board’s current rules found at 35 Ill. Adm. Code 302.105. The proposal would

designate the State’s water resources to reflect the three tiers of the federal program. The

proposal also adds procedures for the implementation of the program as a part of the National

Pollutant Discharge Elimination System (NPDES) permit process.

Tier 1 in the federal scheme is based on achieving and maintaining existing stream uses.

Prop. at 3. Tier 1 sets the minimum level of protection and is intended to be the absolute floor of

water quality protection for all waters of the United States.

Id

. Tier 2 of the federal program

addresses waters whose quality exceeds the levels necessary to support the propagation of fish,

shellfish, or wildlife and recreation in and on the water. Water quality cannot be lowered below

the level necessary to protect the “fishable/swimmable” uses and other existing uses. Prop. at 3.

However, maintaining a level of water quality above the “fishable/swimmable” level is not

always required and water quality may be lowered if necessary to accomplish important

economic or social development in the area in which the waters are located.

Id

. and 40 C.F.R.

131.12(a)(2).

Tier 3 of the federal regulations requires that high quality water, which constitutes

outstanding resource waters, must be maintained and protected. Prop. at 4. Examples of

outstanding resource waters could include waters of national and state parks, wildlife refuges or

water of exceptional recreational or ecological significance.

Id

. To reflect Tier 3 in Illinois, the

Board is proposing rules at 35 Ill. Adm. Code 303 creating the category of waters classified as

“outstanding resource waters” or ORWs. The Board also proposes adding a new Subpart to the

Board’s procedural rules at 35 Ill. Adm. Code 102 to regulate the process for classification of

Outstanding Resource Waters.

PROPOSED CHANGES TO THE PROPOSAL

As previously indicated the Board received three comments after the fourth hearing in

this matter. The comments from the Agency, IERG, and the Environmental Groups indicate that

there are areas of agreement for additional changes to the rule. The comments also indicate

some disagreement. The following discussion will delineate the agreed-upon suggested changes

and discuss the areas of disagreement. The discussion will begin with general comments and

proceed to a section by section breakdown of suggested changes and the Board’s response to the

suggested changes. The Board will not specifically discuss suggested changes that are

nonsubstantive, but the Board will accept most of those suggested changes.

General Comments

The Agency indicated in both the prefiled testimony and the final comments that the

Agency generally supports the Board’s proposal. PC 50 at 1; Exh. 38 at 1. However, the

Agency has three areas of concern regarding the Board’s inclusion of the antidegradation

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3

implementation procedures in Part 302. First the Agency urges the Board to delete the

implementation procedures from Part 302 and move the implementation procedures to Part 309.

The Agency argues that under the organizational pattern set forth in Subtitle C of the Illinois

Administrative Procedure Code, the requirements for permitting are set forth in Part 309. PC 50

at 5. The Agency points out that since the codification of environmental regulations the Board

has followed the practice of centrally locating permit regulation by media, and such a practice

decreases the potential for confusion among the regulated community and facilities in the

permitting process.

Id

. The Agency urges the Board to continue this practice.

Secondly, the Agency indicated that because the Board had included Exhibit B from the

proposal for rulemaking as Section 302.102(f), there were several concerns about the language as

originally included. PC 50 at 2. Specifically, the Agency proposes that subsections

302.105(f)(2)(A)(i), (f)(2)(B) and (f)(2)(C) should be deleted from the rule. PC 50 at 3-4. The

Agency indicates that these subsections address the Agency’s commitment to interact with the

regulated community prior to an application for an NPDES permit being filed.

Id

. The Agency

asserts that the communication itself does not result in a permit, and it is not mandatory upon any

applicant. Therefore, the Agency believes that the subsections should be deleted.

Finally, the Agency is concerned that the inclusion of the implementation procedures

could be problematic for activities requiring a Section 401 of the Clean Water Act water quality

certification (33 U.S.C. § 1341 (Section 401 certification)). PC 50 at 2; Exh. 38 at 2. The

Agency points out that the proposed rule would apply the Section 302.105(f) procedures to

permit applications as well as the review of activities requiring a Section 401 certification. Exh.

38 at 2. In contrast to the NPDES program, the Agency is not the delegated permitting agency

for federal permits but must work with several federal permitting agencies in the Section 401

certification process.

Id

. Because of the need for coordination, the Agency argues that it is

important that the procedures for the Section 401 certification process remain in Agency rules.

Id

. The Agency therefore requests that the reference to Section 401 certification be removed

from Section 302.105(b)(4) and a new subsection (b)(5) be added.

IERG supports the Agency’s suggested changes including new language in Part 309,

deleting several subsections from 302.105(f), and removing references to Section 401

certification. PC 52 at 12. However, the Environmental Groups have concerns regarding the

Agency’s suggested changes. First, the Environmental Groups “oppose any changes being made

to the First Notice Proposal that will cause substantial delay in the final enactment of protective

regulations.” PC 51 at 2. Secondly, the Environmental Groups object to the deletion of

references to the Section 401 certification. The Environmental Groups assert that the Agency’s

suggested change would separate the procedures for conducting antidegradation review for

NPDES permits from the procedures for reviewing Section 401 certifications. PC 51 at 5. The

Environmental Groups argue that there would be no procedures established in this proceeding for

Section 401 certifications. The Environmental Groups argue that the Agency does not point to

any specific potential conflicts between state and federal rules or procedures. Further, the

Environmental Groups assert that they are unaware of any potential conflicts. PC 51 at 5.

Discussion

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4

The Board appreciates the Agency suggestion that to remain consistent with other Board

regulations the implementation procedures should be placed in Part 309 of the Board’s rules.

However, the Board agrees with the comment of the Environmental Groups that placing the

implementation procedures into Part 309 at this late stage of the rulemaking would lead to an

unnecessary delay for the reasons explained below.

Based on the Agency’s original proposal, which did not include Part 309, the Board has

published the proposed rule in the

Illinois Register

and Part 309 was not included in the Board’s

first-notice publication. Section 5-10 (c) of the Administrative Procedure Act (APA) (5 ILCS

100/5-5

et seq.

) provides, in part, that:

No agency rule is valid or effective against any person or party, nor may it be

invoked by the agency for any purpose, until it has been made available for public

inspection and filed with the Secretary of State as required by this Act. 5 ILCS

100/5-10(c)

The APA sets out specific rulemaking requirements, which include giving at least 45-

days notice of the agency’s intended action in the

Illinois Register

. 5 ILCS 100/5-40(b). The

notice shall include publishing the text of the proposed rule. 5 ILCS 100/5-40(b)(1). The APA’s

language is clear that the text of any proposed amendment must appear in the

Illinois Register

for

first notice prior to the adoption of the rule. Although an agency may make changes in response

to comments received during the first notice (5 ILCS 100/5-40(c)), the Board does not believe

that this extends to opening and amending a new part. Therefore pursuant to the APA, the Board

would be required to publish a first-notice proposal opening Part 309 and amending Part 309 as

suggested by the Agency. In effect because of APA requirements, this action would return the

antidegradation rule to first notice and would result in a substantial delay in promulgating this

new rule. Therefore, the Board will not make the change suggested by the Agency to move the

implementation procedures to Part 309 in this rulemaking.

The Board notes that the Agency recently proposed a new rulemaking (R02-11) to the

Board entitled, Water Quality Triennial Review: Amendments to 35 Ill. Adm. Code 302.208(e)-

(g), 302.504(a), 302.575(d), 303.444, 309.141(h) and Proposed 35 Ill. Adm. Code 301.267,

301.313, 301.413, 304.120, and 309.157. In R02-11, the Agency proposed amendments to both

Parts 309 and 302. Therefore, the Agency could propose that the implementation procedures for

Part 309 be placed in R02-11 without delaying the instant rulemaking which has been before the

Board since August 30, 2000.

The Board has reviewed the Agency’s request that the Clean Water Act (CWA) Section

401 certification language be removed from Section 302.105(b)(4). A Section 401 certification

under the CWA is when an applicant for a federal permit to conduct any activity that results in a

discharge to navigable waters must first obtain a certification from the Agency that the discharge

complies with applicable water quality and effluent standards. The Agency had included the

Section 401 certification provisions in the original proposal to the Board and this inclusion was

not an issue prior to the Board’s proceeding to first notice. The Agency asserts that procedures

for Section 401 certifications should remain in Agency rules and therefore, the references to

Section 401 certifications should be removed. However, the Environmental Groups disagree and

correctly point out that absent this provision there would be no procedures established in this

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proceeding for antidegradation review of Section 401 certifications. The Board believes that a

procedure should be in place to review discharges subject to Section 401 certification for

potential degradation of waters of the State. Therefore, the Board will leave in references to

Section 401 certifications.

 

The Agency has made several specific suggestions for changes to be made in the

language proposed at Section 302.105(f), including a suggestion that portions of Section

302.105(f) be deleted. The Board will make the changes suggested by the Agency where

feasible and incorporate them in Section 302.105(f). The Board notes that one suggestion by the

Agency is to add the phrase “but not limited to” after the word “included” in several places. The

Board will not make that change as the phrase “but not limited to” is redundant because

“included” does not mean the subsequent listing is an exhaustive list.

Section 302.105(b)

IERG states that it assumes the Board did not intend Section 302.105(b)(3)(B) and (C) to

apply only to activities authorized under Section 302.105(b)(1)(A) and (B) and indicates that

IERG has discussed language with the Environmental Groups. IERG also seeks clarification in

the Board’s opinion and order of the Board’s intent concerning Section 302.105(b)(3)(B). IERG

is unsure of the Board’s intent for the requirement “that increases in loading to ORWs improve

water quality.” PC 52 at 11.

The Environmental Groups agree with IERG’s assumption that the Board did not intend

Section 302.105(b)(3)(B) and (C) to apply to activities authorized under Section

302.105(b)(1)(A) and (B) and offers identical language to clarify the rule. In addition, the

Environmental Groups suggest language to clarify that the provisions of Section

302.105(b)(1)(B) allows stormwater discharges in existence when the ORW is designated. PC

51 at 24-25. The Environmental Groups believe that Section 302.105 (b)(1)(B) might be read to

allow degradation of an ORW and also prevent certain loadings that were “probably intended to

be allowed.” PC 51 at 23.

Discussion

In response to IERG’s uncertainty regarding Section 302.105(b)(3)(B), the Board notes

that increases in loading of one constituent that may reduce the loading of one or more

constituents may be an improvement in water quality. Also, adding a new constituent that would

eliminate a bioaccumulative chemical of concern is an additional example of an activity that may

improve water quality. However, this is not an exhaustive list and the Board does not intend that

it should be.

Regarding IERG’s comments pertaining to the intent of Section 302.105(b)(3)(B) and

(C), the Board notes that IERG correctly assumes that the increase in pollutant loadings to an

ORW is not limited to the activities listed in Section 302.105(b)(1). Subsection

302.105(b)(3)(B) allows for an increase in pollutant loading under a very limited circumstance

where such an increase is necessary for an activity that will improve the quality of the ORW.

The Board does not consider an increase in pollutant loading pursuant to subsection

302.105(b)(3)(B) as lowering the quality of an ORW. In this regard, the Board notes that the

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6

proposed regulations prohibit the lowering of quality of an ORW, except for the activities listed

in Section 302.105(b)(1). The Board declines to make the change to Section 302.105(b)(3)

suggested by IERG and the Environmental Groups. Furthermore, the Board declines to make the

suggested change to Section 302.105(b)(1)(B) regarding stormwater discharges to an ORW

offered by the Environmental Groups. The Board believes the rule as written very clearly

reflects that only stormwater discharges in existence on the day an ORW is designated are

allowed if such discharges are in compliance with applicable stormwater discharge and water

quality regulations. The Board believes that adopting the Environmental Groups’ proposed

language would narrow the scope of the exception by limiting the applicability to only

discharges that require an NPDES permit or Section 401 certification.

 

Section 302.105(c)(2)

The Agency suggests that a new sentence be added Section 302.105(c)(2) and Section

302.105(f)(2) that indicates that the Agency will make antidegradation assessments on a case-by-

case basis. PC 50 at 7. The Agency makes this request in response to IERG’s testimony at the

August 24, 2001 hearing. The Agency states that the Environmental Groups and IERG met and

agree that this concept should be included in the rule.

IERG agrees that this language should be added and further suggests that Section

302.105(c)(2)(B) be amended to reflect that the Agency’s decision will be made on a case-by-

case basis. PC 52 at 3-4. IERG also suggests that the language be clarified in this section to

clearly identify to the regulated community when an antidegradation review is triggered. PC 52

at 8. Although IERG had initially suggested language, IERG had subsequent discussions with

the Agency, which has led to IERG’s suggestion in this comment.

Id

. IERG wishes to explicitly

state “that which is implicit in the Board’s proposal” that for constituents for which a limit is

expressly stated in a permit, the antidegradation process is triggered by an applicant’s request

that would exceed that permit limit. PC 52 at 8-9. IERG would ask that the same language be

added in Section 302.105(f).

The Environmental Groups indicate that they do not object to the inclusion of the case-

by-case language proposed by the Agency. PC 51 at 6. The Environmental Groups also do not

object to the language proposed by IERG; however, the Environmental Groups believe such

language is repetitive. PC 51 at 7.

Discussion

The Board notes that all permit decisions made by the Agency are based on the specifics

of the permit application, utilizing both the Agency’s rules and the Board’s rules. As there

appears to be no objection to the inclusion of this language the Board will make the suggested

change in Section 302.105(c)(2). However, the Board agrees that the further inclusion of the

language in subsection (c)(2)(B) is repetitive and the Board will not make that change.

The Board declines to amend Section 302.105(c)(2) and (f)(1) to add the language

suggested by IERG. The Board believes that the language in these subsections is clear on its

face.

Section 302.105(c)(2)(C)

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7

IERG indicates that it has reconsidered its request to include a

de minimis

exception in

the rule. PC 52 at 7. However, IERG suggests that the Board add to Section 302.105(c)(2)(C) a

new subsection to allow the Agency to consider a

de minimis

demonstration as one of its sources

of information in making an antidegradation assessment.

Id

. IERG would have the applicant

prepare the demonstration and the demonstration would show that the increased loading of a

pollutant (other than a bioaccumulative chemical of concern) does not utilize more than 10% of

the assimilative capacity of the receiving waters.

Id

.

Discussion

In the Board’s first-notice opinion and order, the Board addressed the issue of a

de

minimis

exception at length. The Board stated that:

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

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

allow discharge of bioaccumulative and persistent chemicals without an Agency

review as long as the increased level is below the

de minimis

level. Discharge of

even small amounts of such chemicals may not be advisable in certain water

bodies. Further, the Board agrees with the Agency that the actual determination

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

performing the antidegradation review. Revision to Antidegradation Rules: 35

Ill. Adm. Code 302.105, 303.205, 303.206, And 102.800-102.830 R01-13 (June

21, 2001)

slip. op.

at 16.

 

Although IERG has modified it’s request for a

de minimis

exception, the Board believes that the

Board’s decision to not include a

de minimis

exception in these rules is appropriate for Illinois.

Therefore, the Board will stand by the discussion in the first-notice opinion.

 

Section 302.105(d)(5)

During the August 24, 2001 hearing, IERG made a suggestion regarding non-contact

cooling water, and there was extensive discussion on the record at the hearing regarding non-

contact cooling water. Tr. 8/24/01 at 12, 25-30. The Agency agreed to review the language after

the hearing and has proposed a change. The Agency noted that the additive discussed is chlorine

and the suggested change would present minimal environmental impact, due to the technical

reliability of de-chlorination processes. Further the Agency believes the suggested language

change would provide a benefit to the regulated community. PC 50 at 8.

IERG concurs with the Agency’s suggested language. IERG indicates that the regulated

community and the Agency “have come to understand that application of this exception to non-

contact cooling water containing only the additive chlorine, and where dechlorination occurs

before discharge is an acceptable compromise.” PC 52 at 6.

The Environmental Groups oppose the suggested language change. Specifically, they

argue that the record does not contain enough information to determine that chlorine is removed

by processing to the extent that chlorine never poses a danger to aquatic life. PC 51 at 7. The

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Environmental Groups further argue that the lack of an exemption for chlorine would impose

little hardship due to the case-by-case approach proposed to the Board. PC 51 at 8.

Discussion

The Board appreciates the concerns expressed by the Environmental Groups. However,

the language agreed to by IERG and the Agency would require the removal of chlorine and the

maintenance of an effluent limit. The Board feels these safeguards will ensure that there is no

environmental harm and the Board will therefore accept the language change.

Section 302.105(d)(6)

The Agency indicates that the Section 401 certification process does not use the phrase

“general” Section 401 certification. PC 50 at 9. To avoid potential confusion, the Agency

suggests that this subsection be amended to replace the phrase “general CWA, Section 401

certification” with “for nationwide or regional Section 404 of the CWA permit.” PC 50 at 9.

The Agency stated that IERG and the Environmental Groups also suggest the language be

clarified to better reflect the certification process when an activity is subject to a nationwide

permit.

Id

.

In addition to the Agency’s suggestion in this subsection, IERG suggests that the

language “waters of particular biological significance” be deleted. IERG argues that the Board

does not discuss this phrase in the opinion and IERG is uncertain what the Board means by the

term. PC 52 at 13. IERG asks if the Board intended to use “Outstanding Resource Waters” in

this subsection.

IERG notes that the Environmental Groups endorse the use of “waters of particular

biological significance” and the Environmental Groups suggest that the Agency rely on the 1991

report prepared by the Illinois Department of Conservation

3

titled “Biologically Significant

Illinois Streams” to determine what constitutes “waters of particular biological significance.” PC

52 at 14. IERG objects to relying on the 1991 publication. PC 51 at 14. IERG asserts that the

Environmental Groups have not filed evidence of the methodology used to identify waters in the

1991 publication and the authors do not explain what data was relied on. Further the data in the

1991 publication is out of date and the 1991 publication indicates that some of the water bodies

identified cannot be saved. PC 51 at 15-16.

The Environmental Groups suggest clarifying “waters of particular biological

significance” by deleting the phrase and replacing it with:

which include waters identified by the Illinois Department of Natural Resources

to be biologically significant, waters known to contain state or federally listed

threatened or endangered species, or water identified as having high levels of

biodiversity. PC 51 at 26

Discussion

3

One of the agencies combined to form the Illinois Department of Natural Resources.

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9

The Board will make the change suggested by the Agency and agreed to by IERG and the

Environmental Groups by replacing “general CWA, Section 401 certification” with “for

nationwide or regional Section 404 of the CWA permit.” With regard to the phrase “waters of

particular biological significance” the Board will add a reference to the Illinois Department of

Conservation publication entitled “Biologically Significant Illinois Streams.” The Board will not

make this publication the definitive source but rather list it as a possible listing of waters of

particular biological significance.

 

Section 302.105(f)(1)(G)

The Environmental Groups have suggested that the Board’s regulations should make

clear that the Illinois Department of Natural Resources should be notified of proposals to allow

new or increased pollution to Illinois waters. PC 51 at 26. The Environmental Groups assert

that DNR has broad responsibilities under DNR’s general powers and under the Illinois

Endangered Species Act to protect Illinois aquatic life.

Id

.

IERG opposes the language suggested by the Environmental Groups. PC 52 at 21-22.

IERG argues that the General Assembly has given authority to specified agencies to administer

environmental programs.

Id

. IERG maintains that only the General Assembly can give DNR a

role in administering the antidegradation regulations in Illinois, and since the General Assembly

has not done so, IERG opposes the Board entitling DNR to have such involvement.

Id

.

Discussion

The Board agrees with IERG that only the General Assembly may give DNR the

authority to administer any part of the antidegradation regulations in Illinois. However, the

Board notes that any one may comment on draft NPDES permits and that would include DNR.

The Board further notes that under the proposal, as DNR does in all rulemaking proceedings,

DNR will be notified of a petition for outstanding resource water (ORW) designation.

Therefore, the Board believes that providing DNR notice of a permit application would not be

beyond the Board’s authority and the Board will amend the proposal to provide that DNR

receive notice of permit applications.

Part 102

IERG expresses concerns about the Board’s amendments to Part 102. First, IERG feels

that the notice requirements of Part 102 are insufficient to notify all prospective landowners and

interested parties. Secondly, IERG maintains that proponents of an ORW designation should

have an obligation to support and petition for ORW designation and the requirements of Part 102

do not sufficiently provide for such proof.

Regarding notification, IERG points out that the Board requires newspaper publication of

petitions for adjusted standards (35 Ill. Adm. Code 104.408) and newspaper notice and additional

written notice for petitions for variances (35 Ill. Adm. Code 214(a), (b)). IERG reiterates the

testimony of Toby Frevert from the November 17, 2000 hearing in which he indicated that the

ramifications of a decision to designate an ORW are more significant than those of an adjusted

standard or variance. Tr. 11/17/00 at 88; PC 52 at 18. IERG quotes testimony from Mr. Frevert

that indicates the willingness of the Agency to assist in notification of potentially interested

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10

parties. PC 52 at 19, citing Tr. 8/24/01 at 15-20. IERG states that it is “unequivocally convinced

that its proposed expanded notification requirements are justified and strongly urges the Board to

adopt the necessary notification requirements.” PC 52 at 18.

IERG also believes that additional language should be added to the Part 102 proposed

amendments that would require a proponent of an ORW designation to submit supporting

documentation to prove the designation is warranted. PC 52 at 19. IERG maintains that a

proponent of an ORW designation, modification or repeal “has an obligation to offer sufficient

evidence in support of its position to allow the Board to meaningfully consider” the statutory

factors in Section 27 of the Act (415 ILCS 5/27 (2000)). PC 52 at 20. IERG argues that any

proponent in a regulatory proceeding before the Board has a minimum burden in moving a

proposal forward.

Id

. Therefore, IERG suggests that the Board amend its proposal for Part 102

to reflect these ideas.

The Agency did not comment on this specific proposal by IERG. However, the

Environmental Groups oppose the suggestions. The Environmental Groups believe that the

Board’s proposal sets forth sufficient notice requirements and the Agency’s testimony

concerning the Agency’s willingness to assist in notification supports the Board’s decision. PC

51 at 15. The Environmental Groups also believe that newspaper notice is not necessary. PC 51

at 16.

The Environmental Groups maintain that the scope and burden of the petition for ORW

designation must be kept to a reasonable level or the opportunity to petition for a designation will

be frustrated. PC 51 at 16. The Environmental Groups agree that the record before the Board

must demonstrate compliance with the Board regulations; however, placing the burden on the

proponent should be rejected. PC 51 at 16-17.

The Environmental Groups also made a specific request that the language at Section

102.830(b)(2) be amended. The Environmental Groups suggest deleting the phrase “uniquely

high biological or recreational quality” and using the phrase “exceptional recreational or

ecological significance”. PC 51, Attachment 1 at 3; Tr. 8/24/01 at 63-64. The Environmental

Groups argue that this language is more appropriate as it reflects the federal language found at 40

C.F.R. 131.12(a)(3).

Discussion

First the Board will address the concern of IERG that the proposal does not require a

minimum burden of going forward with the proposal and that the requirements of Part 102 do not

require sufficient support of the petition. The Board notes that in its first-notice opinion and

order the Board addressed IERG’s concern about a “burden of proof”. The Board stated:

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

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

proceedings allow for testimony, cross-questioning of testifiers, and comments

from any person or group as long as the testimony is relevant and not repetitious.

35 Ill. Adm. Code 102.426 and 102.430. The proponent of a rule must present

testimony in support of that rule. 35 Ill. Adm. Code 102.428. Thus, the

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11

rulemaking process will allow for development of the most complete record

possible, allowing ample opportunities for those in support or opposition to

present opinions to the Board on the designation of an ORW. The Board can then

weigh all the information and evidence in the record and determine if the

designation of an ORW is warranted. Furthermore, this same rulemaking process

will be available to repeal an ORW designation should circumstances change

concerning that body of water. Revision to Antidegradation Rules: 35 Ill. Adm.

Code 302.105, 303.205, 303.206, and 102.800-102.830 R01-13

(June 21, 2001)

slip. op.

at 22.

The Board is convinced that the position articulated regarding burden of proof at first notice is

just as relevant to IERG’s concerns expressed in this opinion. Furthermore, the proposal at

Section 102.830 specifies when a petition might be dismissed and when the Board will grant

ORW status. Thus, the Board finds that the burden of a proponent in a petition for ORW

designation, modification or repeal need not be further articulated and the Board declines to add

additional language to the proposal.

IERG has also suggested that the Board require the proponent to notify many different

individuals and groups and to provide newspaper notification of the petition. The Board believes

that the rulemaking process affords ample notice of an action and additional notice by the

petitioner is not warranted. IERG suggests that since newspaper publication is required of

variances and adjusted standards it should be required for ORW petitions. However, under

Section 27 of the Act a hearing is required in a rulemaking whereas a hearing is not required in

either an adjusted standard or variance. Further, the Board’s rules require notice of the

rulemaking hearing be published in the area affected. See 35 Ill. Adm. Code 102.416. Thus,

newspaper notice of the petition will be given by the Board indicating that a hearing has been

scheduled.

The Board is cognizant of IERG’s concerns that landowners that may be affected be

notified. The Agency has indicated it will assist in notifying potentially affected persons. To

ensure that notification occurs, the Board will commit to including all potentially affected

persons on the notice list of the rulemaking upon acceptance of the petition. The Board will ask

the Agency to provide information such as the names of NPDES permit holders and applicants

along the proposed water body or water body segment. The Board will send copies of Board

opinion and orders to those persons on the notice list. The Board need not make a change to the

rule to reflect this policy.

The Board will adopt the proposed change offered by the Environmental Groups to

Section 102.830(b)(2) by deleting “uniquely high biological or recreational quality” and inserting

“exceptional recreational or ecological significance”. In order to ensure that the rule is

consistent, the Board will also make this change in Section 303.205.

ECONOMIC REASONABLENESS AND TECHNICAL FEASIBILITY

As indicated in the Board’s first-notice opinion and order, the Agency’s proposal

addressed the economic reasonableness and technical feasibility of the proposal. The Agency

indicated that the proposal is a revision of the existing State water quality standard. Prop. at 6.

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