R02-19

(Rulemaking

—

Water)

~i2~

~

NOTICE OF FILING

PLEASE TAKENOTICE that on May 15, 2002, the undersigned filed an original and

nine (9) copies ofthe foregoing Comments ofthe Environmental Law and Policy Center Prairie

Rivers Network and Sierra club on Proposed Ammonia Standard Changes with Dorothy Gunn,

Clerk ofthe Pollution Control Board,

100 West Randolph Street, Suite 11-500, Chicago, IL

60601.

One (1) copy ofsaid comments

is hereby served upon each ofyou.

Respectfully Submitted,

BY:

Albert F. Ettinger (Re

o.

3125045)

Counselfor Prairie Rivers Network

Environmental Law and Policy Center

35

East Wacker Drive, Suite 1300

Chicago, IL

60601

May

15,

2002

ILLINOIS POLLUTION CONTROL BOARD

IN THE MATI’ER OF:

PROPOSED AMENDMENTS TO

AMMONIA NITROGEN STANDARDS

35

ILL. ADM. CODE 302.2 12, 302.2 13

AND 304.122

R~EC~VED

CLERR’S OFFICE

ww

152002

STATE OF

ILLINOIS

Pollutj~~~

Control Board

)

)

)

)

)

---

1-.~RKSO

~y

15 2002

ILLINOIS POLLUTION CONTROLBOARD

smrE

OF1LLII.~OIS

p0~lutIofl

Control

Board

IN THE MATTER

OF:

)

)

PROPOSED AMENDMENTS TO

)

R02-19

AMMONIA NITROGEN STANDARDS

)

(Rulemaking

-

Water)

35 ILL. ADM. CODE 302.212, 302.2 13

)

AND 304.122

)

COMMENTS OF THE ENVIRONMENTAL LAW

AND

POLICY

CENTER PRAIRIE RIVERS NETWORK

AND

ON PROPOSED AMMONIA STANDARD CHANGES

The EnvironmentalLaw and Policy Center ofthe Midwest, the Illinois Chapter ofthe

Sierra Club and Prairie Rivers Network (collectively “Environmental Groups”) hereby comment

on the proposed changes to the ammonia water quality standard offered by the Illinois

Association of Wastewater Agencies (“IAWA”).

Briefly, the Environmental Groups, take no position regarding the proposed changes to

sections 302.100 and 302.2 12.

There are aspects ofthese proposed changes that pose dangers to

Illinois aquatic lifethat will require careful consideration by IEPA in designing the

implementation rules and permit writing.

The dangers can be addressed

in large part through

careful application ofIllinois’ newantidegradation regulations and adoption by IEPA of

ammonia standard implementation regulations that require developing site-specific criteria for

waters where fingernail clams, endangered mussels, or importantbluegill populations may be

present.

The Environmental Groups support the proposal insofar as it would repeal the portion of

the ammonia standards concerning Effluent Modified Waters (“EMW’s”) through amendments

proposed to sections 302.213 and 304.122.

The Environmental

Groups do not agree with all ofthe self-congratulatory rhetoric and

one-sided history lectures that have accompanied the IAWA proposal. However, because the

rhetoric and lectures are of little relevance, the rhetoric will be treated summarily in Section III

below and history will be addressed only in the attached historical appendix.

1

---

I.

IfProper Implementation Rules Are Adopted And Other Water Quality

Protections Are Fully Implemented, the Proposed Changes to Section 302.212

Probably Will Not Damage Illinois Aquatic Life.

Representatives ofELPC

and

the Sierra Club met with representatives ofIAWA

informally in 2000

and

2001 regarding the IAWA’s plans for revisions to ammonia standards. At

that time, ELPC and Sierra Club indicated that they would not oppose changes to the ammonia

standards

ifthe proposed changes faithfully tracked the

1999

U.S. EPA ammonianational

criteria document (“1999 NCD”). Unlike some U.S. EPA national criteria documents, the

1999

ammoniadocument is supported by many studies that considered a wide range ofspecies. It

appears that the IAWA proposal does faithfuily trackthe

1999 NCD.

Further, although the potential costs may be exaggerated, it appears that a handful of

Illinois dischargers will incur significant costs if they are forced to meet effluent limits designed

to prevent violations ofthe current Illinois ammonia standards but may avoid such costs if

standards tracking the

1999 NCD

are

adopted.

There are a numberofapproaches possible under the Clean Water Act and the Illinois

Environmental Protection Act to address this situation. Changing Illinois ammonia standards

is

one approach and is the approachthat

has

been embraced by IAWA.

This approach is not

without dangers to Illinois aquatic life, including endangered species. But suchrisks are probably

manageable as to ammonia if Illinois antidegradation standards are rigorously enforced by IEPA.

However, it should be noted that the

1999 NCD states that the criteria it proposes may not

be protective ofthe fingernail clam’ and that the criteria allowed little or no margin ofsafety for

the “recreationally important bluegill”.

(1999 NCD at 80).

The 1999 NCD suggests

development ofsite-specific criteria where sensitive endangered species may be affected by an

ammoniadischarge.

(Ibid).

Moreover, there have been new ammonia studies.

(S~

Letter from Mary Beth Tyson to

Toby Frevert, October21

2001,

with

attached list ofstudies, Hearing Exhibit 2).

These recent

studies indicate that the 1999 NCD may not be protective ofimportantmussel species living in

Illinois waters.

While not all ofthese newmussel studies have been fully peer-reviewed or

finalized, many ofthem have. None ofthe studies can safely be ignored.

The fingernail clam is extremely important to the Illinois environment as the decline of

the fingernail clams had “drastic repercussions on the populations ofducks and fish”.

Ex. A.

Sparks, Rand Ross P. Identification ofToxic Substances in the Upper Illinois River (1992)

2

---

If Illinois adopts the proposed standard based on the

1999 NCD, there can be no

presumption that Illinois standards areprotective ofmussels. The antidegradation standards

clearly require protection ofexisting uses.

Accordingly, any permit seeking a new or expanded

discharge ofammonia must be accompanied by proofthat the discharge will not affect mussel

beds or any otherexisting use, be it ofbiological, recreational orother significance. In most

cases, this could probably be done by showing that no such sensitive uses are present in any area

that will be affected by the discharge.

Still further, it must be recognized that a new Illinois ammonia standard that renders the

standard less stringent cannot be used to. affect any permit until IEPA adopts the necessary

implementation rules and the standard, with the implementation rules, are approvedby U.S.

EPA. Under 40 CFR §131.6(f), standards submissions to U.S. EPA must be accompanied by

“information on general policies applicable”

..

.

“which may affect the

standard’s

application

and implementation.” No change in standards is effective ormay be used in writing effective

permits until it is approved by U.S. EPA. 33

U.S.C. §l313(c)(3); 40 C.F.R. §131.21; Alaska

Clean Water Network v. Clarke,

1997 U.S. Dist. Lexis

11144 (W.D. Wash.

1997). Hopefully, the

science regarding mussel toxicity will be more clear by the time that U.S. EPA has to decide

whether or not to

approve a change to the Illinbis ammonia standard.

2

II.

The Board

Should Delete the

Portion of

the Current Ammonia Standards

Regarding Effluent Modified Waters.

The Environmental Groups agree without reservation that the provisions regarding

EMWs should be deleted from Illinois ammonia standards.

Our reasons for supporting this

change, however, are somewhat different than IAWA’s and follow directly from the requirements

ofthe Clean Water Act and the regulations developed by U.S. EPA and the Board to implement

the Clean Water Act.

The EMW provisions allow certain waters to be designated as “effluent modified” and

waive chronic ammonia limits as to such waters.

However, the Clean Water Act does not allow

a state to downgrade a use designation to allowgreater pollution loadingsjust because the state

believes it is

inconvenient or expensiveto protect the designated use. Basically it must be shown,

after allowing public participation,

that the water is inherently limited ecologically orthat

2

Nonetheless, if U.S.

EPA approves a change to the Illinois ammonia standard without

the effect ofammonia on mussels,

fingernail clams and other spcies being fully known, there

is a

risk ofdamage to Illinois aquatic life even if Illinois EPA properly implements the new

antidegradation rules.

The antidegradation rules would not apply to an increased discharge of

ammonia that was already permitted even if the discharger had not previously discharged

ammonia atthe levels allowed by the permit.

The extent ofthis danger is not known.

3

---

controls needed to protect the designated use “would result in substantial and widespread

economic and social impact.” 40 CFR §13 1.10 (g)(6).

In all cases, the existing use must be

protected.

As the Board is aware, regulations established under the Clean Water Act require that

states designate uses for all waters ofthe state, 40 CFR

§

13110(a), and criteria to protect those

uses. Regulations prohibit the issuance ofpermits that will allow a discharge that causes or

contributes to a violation ofthe criteria designed to protect uses. 40 CFR§122.44. In Illinois,

almost all waters are designated as “general use” (see 35 Ill. Adm Code 303.441

listing

exceptions) Permits cannot be issued that will allow violations ofthe criteria adopted by the

Board to protect aquatic life except in the limited circumstances in which a mixing zone is

allowed.

The Clean Water Act does allow for the use ofa water to be redesignated to allowgreater

pollution loadings or concentrations, but the circumstances in which this can be’ done are

extremely limited.

A waterthat has been designated as “general use” can be redesignated as

“secondary contact” (or given some other level ofusedesignation that did not require application

ofgeneral

use criteria) only in the limited circumstances provided by

40 CFR 131.10(g). That

regulation provides that removing a use requires a “Use Attainability Analysis” and states:

(g)

States may remove a designated use which

is

not

an existing use, as defined in §

131.3, orestablish

sub-categories ofa use if the State can

demonstrate that attaining the designated use is not

feasible because:

(1)

Naturally occurring pollutant concentrations

prevent the attainmentofthe use; or

(2)

Natural, ephemeral, intermittent or low flow

conditions or water levels preventtheattainment

ofthe use, unless these conditions may be compensated

for by the discharge ofsufficient volume

ofeffluent discharges without violating State water

conservation requirements to enable uses to be

met; or

(3)

Human caused conditions or sources of pollution

prevent the attainment ofthe use and cannot

be remedied or would cause more environmental

damage to correct than to leave

in place; or

(4)

Dams, diversions or othertypes ofhydrologic

modifications preclude the attainment ofthe

use, and it is not feasible to restore the water body

to its original condition or to operate such modification

in a way that would result in the attainment

4

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ofthe use; or

(5)

Physical conditions related to the natural

features ofthe waterbody, such asthe lack ofa

proper substrate, cover, flow, depth, poois, riffles,

and the like, unrelated to water quality, preclude

attainment ofaquatic life protection uses; or

(6)

Controls more stringent thanthose required

by sections 301(b) and 306 ofthe Act would result

in substantial and widespread economic and

social impact.

The effluent modified waters provisions, now contained in 35 Ill. Adm Code 302.213 and

304.122, do not fit comfortably with the Clean Water Act. Indeed, unless the EMW provisions

are interpreted very restrictively, they cannot be reconciled with the Clean Water Act at all.

Essentially, if the EMW provisions were interpreted in a manner that did not require strict

compliance with the “Use Attainability Analysis” requirements of40 CFR 131.10(g) and the

principles ofthe Clean Water Act set forth in 33 U.S.C. §125 1, the EMW provisions would be

illegal and

could never have been approved by U.S. EPA.

It was never clear how the Board intended the EMW provisions to be implemented and

perhaps the Board simply expected the matter to be decided by the IEPA in accordance with state

and federal law. In any event, IEPA has been persuaded to issue regulations, 35 Ill. Adm. Code

part

355,

that

interpret the EMW provisions narrowly, basically requiring that the showings be

made that would be necessary to perform a use attainability analysis under 40 CFR 131.10(g).

So limited, the EMW provisions are not pernicious. They are not terribly useful to anyone

either.3 Moreover, no reason appears why Illinois should in effect have special Use Attainability

Analysis regulations applicable only to chronic ammonia standards.

III

The Science And Wastewater Treatment For Ammonia Have Improved And

Must Continue To Improve.

Certain rhetorical flourishes and

statements made by IAWA representatives in the course

of these proceedings require a briefresponse to avoid leaving the impression that everyone is in

agreement with this hyperbole.

First, the “I told you so’s” suggesting that Illinois ammonia standards have always been

fine and the past controversies were all caused by erratic U.S. EPA science and policies are not

justified. It is simply not true that the

1999 NCD indicates that the pre-1996 Illinois

ammonia

~ IAWA takes no satisfaction from the EMW provisions as they have been limited

t~.

accord with the Clean Water Act.

5

---

standards were protective or that ammoniadischarge concentrations of

1.5

mg/L in the summer

and 4.0 mg/L in the winter are always acceptable.

In fact, to the creditof lAWNs scientific

consultants, IAWA’sproposal largely tracksthe

1999 NCD and, clearly recognizes that Illinois

cannot go back to anything like the pre-1996 standards. The IAWA proposal also implicitly

recognizes that, depending on pH, temperature and dilution,

many permits must contain effluent

limits tighter than the

1 .5(summer)/4.O(winter) mg/L level to be protective. Further, following

the 1999 NCD, the IAWA proposal makes careful judgements regarding early life stages.4

Second, it is clear that sewerage treatment plants do not generally experience

prohibitively high costs if they seek to treat ammonia beyond the level necessary to meet

1 .5(summer)/4.0(winter) effluent concentrations.

The very exhibits offered by IAWA show

sewerage treatment plants not coming close to discharging ammonia at the 1.5/4.0 concentrations

for years.

See Pre-filed Testimony ofTim Bachman attachments

4

&

5.

Certainly, there should

not be any presumption in futureproceedings that ammonia effluent limits as high as

1 .5(sunnner)/4.0(winter) mg/L are protective or economically necessary.

4mesejudgements may, however, need to be the subject offurther research and be

reconsidered in the context ofdeveloping implementation rules given the remarks ofDr. Burr,

quoted in the January 18, 2002 letter ofThomas Muth

to David Pfeiffer.

See Exhibit

1.

6

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CONCLUSION

We wish we could conclude now with the statementthat all ofIllinois’ problems with

ammonia are nowbehind itand the Board can conclusively end all consideration ofammonia

standards by adopting the IAWA proposal.

Unfortunately, the IAWAproposal is ultimately

based on tentative science that may very well have to be revised in the future.

In any event, improved science and technological improvements will be needed if Illinois

is to accommodate a growing population and economy without further damaging Illinois’ rivers,

lakes, wetlands and streams.

4

F. Ettinger

Environmental Law and Policy Center

35 East Wacker

Drive, Suite

1300

Chicago, IL 60601

Cynthia Skrukrud, PhD.

Clean Water Advocate

Sierra Club, Illinois Chapter

Robert Moore

Executive Director

Prairie Rivers Network

May 15, 2002

7

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HISTORICAL APPENDIX

To briefly summarize a long history that took place over a five year period,

IEPA in

1994 filed its ammonia proposal that contained the EMW provisions.

The Environmental

Groups do not know what IEPA told IAWA as to how the EMW provisions would be interpreted

and implemented, but the Environmental Groups were told that the EMW provisions would only

apply to drainage ditches that were ofno use for outdoor recreation and ofno ecological, value.

This was confirmed by IEPA briefs filed in R94-1(B) that stated that the EMWs would solely

consist of“small effluent dominated and ecologically limited resources.”Agency’s Final

Comments, filed April 6,

1995 p.3.

The Environmental Groups were disturbed to learn during the R94-1(b)

proceedings that

certain dischargers claimed that they had been told that miles ofthe Fox River and other valuable

‘cvaters would be designated as EMWs. Accordingly, the Environmental Groups asked the Board

“to eliminate or at least clarify the provisions regarding effluent modified waters to assure that a

water body may only be identifed as an EMW if is small,

effluent dominated and ecologically

limited.”

Post-Hearing Comments ofPublic Hearing Participants, March 29,

1996 p.1.

Assuming that IEPA would comply with the requirements ofthe CWA, the

environmental groups expected that afterthe Board issued its final decision on the standards,

IEPA would develop implementation rules that would go through the agency rulemaking process

before any permits were issued that used the new EMW provisions. Conversation with IEPA

officials in late 1996 confirmed these expectations. We were, accordingly, appalled to learn

during Spring

1997 that IEPA had decided to interpretthe EMW provisions to allow EMW

designations to take place in every Illinois water, no matter how sensitive or valuable, and that

IEPA -without establishing implementation rules or securing U.S. EPA approval of the standards

and implementation rules under 33

U.S.C.

13 13(c) and 40

CFR 131.21

-

had issued numerous

permits containing EMWs designations in highly valued and sensitive Illinois waters.

In the summer and fall of 1997, it was brought to U.S. EPA’s attention that IEPA’s

issuance ofillegal permits had to stop.

In Fall

1997, the issuance ofpermits with the illegally

loose and improperly established EMW provisions was stopped. Many permits, had

been issued,

including permits for discharges to the Cache River, the Little Vermilion River, Manhattan Creek

and tributaries to the Mackinaw and Kishwaukee Rivers. Based on IEPA biological data, it is

believed that this permit issuance resulted in substantial damage to Illinois aquatic life.

As a result ofthis controversy, few or no permits were issued involving ammonia

discharges for over a year and a substantial permit backlog developed. However, during

1998

and 1999, the safeguards on use of the EMW provisions, now contained in 35 Ill. Adm. Code

part

355

were developed. These safeguards reconciled the EMW provisions with governing

federal and state law, the standards and implementation rules were approved by U.S. EPA, and

IEPA was able to issue permits again.

---

In retrospect, it is clear that the process would have beenmuch smoother if IEPA had

submitted draft implementation rules with its ammonia proposal as it did later with its Great

Lakes and antidegradation standards proposals. Fortunately, IAWA has suppliedthe Board in its

proposal with a clear indication ofhowit is expected that the standards will be implemented.

This should greatly facilitate the IEPA rulemaking that

is necessary before the standard and

implementation rules can be presented to U.S. EPA for approval.

The Environmental Groups are willing to supply documents supporting each ofthe statements

made in this footnote concerning historical events. However, in view oftheir marginal relevance

to this appendix, it does not seem worth the paper to include such exhibits here.

---

EXHIBIT

tasse_

sat

UOcUMENTATION

1.

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7.

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PAQE

ILENR/RE-.WR-92/07

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Msn*os N..

.

.

.

Identification of Toxic Substances

in the Upper Illinois River

~iq,i.to.w~”

-

.

iuc~ard

E.

Sparks

and Philippe

E. Ross

S.

PS~fuv,niq4

rØ.I~,.($oA

.i’~O~

Ni~~

Ads..

—

Research

Laboratory

Forbes

Biological

Station

.

Illinois

Natural

History

Survey

.

P.O.

Box

599

Havana,

II

62644

.

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89/215

11.c~c~c~

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WR3691

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Hum. se~

Addfsss

Illinois

Department

of

Energy

and

Natural

Resources

Office’of’Research and Planñii~g

325 West

Adams

Street

Springfield._IL.

62704-1892

23.

Typ.

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& Pstlod Covsrø

-

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Is.

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ii.

ass*~um

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Between 1955 and 1958, several abundant species of acquatic insects, snails and

finger-

nail

clams

practically

disappeared

from

the upper Illinois River.

These declines had

equally drastic repercussions on the populations of ducks and fish that fed upon

these

invertebrates.

The situation changed very little into the 1980s, despite improvements

in water quality.

This research found that porewater from relevant river sediments

contains a toxic factor that inhibits the flitering ability of fingernail clams and

also

negatively effects

the

water flea, while stimulating alga and bacteria growth.

All evidence points~

to

aim~oniaas

the

toxic agent.

Also,

at

two sites, the porewater

contained

toxic

oil products, including polycyclic

aromatic

hydrocarbons, such as

naphthalene.

A three phase

Toxicity

Identification and Evaluation

methodology

was

utilized in reaching these conclusions.

17.

QO~Nfl~

M.b’.I.

a. nu~t~

Water Pollution, Toxicity, Water Pollution Effects

(Animals),

Sedimants, Sedimentation, Suspended Sediments

6.

~

Tu,mz

Sedimentation

-

Ill1n~i~

River

Toxicity

-

Illinois R1~er

-

Water Pollution

-

Illinois River

C.

COSATI

Pm.,GA’UUØ

Biolooical

and

~ed~cal_5ci~

1&~si!.~Wtv*.tsn(fl.~~

restriction

on

distribution..

Available

at

II

Depository

Libraries

or

from

National Technical

Information Service,

cr~ir~nc’,n~l

IA

21.

No.

of

Pan.,

---

CERTIFICATE OF SERVICE

I, Albert F. Ettinger, certify that,

on May 15, 2002 I mailed, with proper postage on

recycled paper, the foregoing Comments ofthe Environmental Law and Policy Center Prairie

Rivers Network and

Sierra ClubonProposedAmmonia

Standard Changes the addresses on the

attached service list.

Environmental Law and Policy Center

35 East Wacker Drive, Suite

1300

Chicago, IL

60601

May

1.5,

2002

---

SERVICE LIST

R02-19

Tim Bachman

Urbana/Champaign Sanitary District

1100 East University

P.O. Box 669

Urbana, IL

61803

Mike Callahan

Bloomington Normal Water Reclamation

District

P.O. Box 3307

Bloomington, IL 6 1702-3307

Larry Cox

Downers Grove Sanitary District

2710 Curtiss Street

Downers Grove, IL 60515

Dennis Daffield

Department ofPublic Works

City ofJoliet

921 East Washington Street

Joliet, IL 60433

Jim Daugherty

Thom Creek Basin Sanitary District

700 West End Avenue

Chicago Heights, IL 60417

Sheila Deely

Gardner, Carton &

Douglas

321 North Clark Street, #3400

Chicago, IL 60610-4795

Susan M. Franzetti

Sonnsenchein Nath &

Rosenthal

8000 Sears Tower

Chicago, IL 60606

Lisa M. Frede

Chemical Industry Council

9801

West Higgins Road

Suite 515

Rosemont, IL 60018

Catherine F. Glenn

Illinois Pollution Control Board

100 West Randolph Street, Suite 11-500

Chicago, IL 60601

Dorothy Gunn

Clerk, Pollution Control Board

100 West Randolph Street; Suite 11-500

Chicago, IL 60601

James T. Harrington

Ross & Hardies

150 North Michigan, Suite 2500

Chicago, IL 60601

Katherine Hodge

Hodge Dwyer Zeman

3150 Roland Avenue

P.O.Box 5776

Springfield, IL 62705

Margaret P. Howard

Hedinger & Howard

1225 South Sixth Street

Springfield, IL

62705-5776

Richard Lanyon

Metropolitan Water Reclamation

District ofChicago, Env. Monitoring Div.

6001

Pershing Road

Cicero, IL 60804

---

Tom Muth

Fox Metro Water Reclamation District

682 State Route 31

Oswego,

IL

60543

Deborah J. Williams

Illinois Environmental

Protection Agency

1021 NorthGrandAvenue

East

P.O. Box 19276

Springfield,

IL 62794-9276

David Zenz

CTB Engineers

303 East Wacker Drive

Suite 600

Chicago, IL

60601

MichaelZima

DeKalb Sanitary District

P.O. Box 624

DeKalb, IL 60115