ILLINOIS POLLUTION CONTROL BOARD
October 18, 1989
IN THE MATTER OF:
PROPOSED AMENDMENT TO
)
R87-6
PHOSPHORUS EFFLUENT STANDARD,
35 ILL. ADM. CODE 304.123
PROPOSED RULE.
REVISED SECOND NOTICE.
SUPPLEMENTAL OPINION AND ORDER OF THE BOARD (by J. Anderson):
On September 13, 1989, the Board adopted a revised proposed
rule for Second Notice in this docket. The Board directed that
filing of the proposal with the Joint Committee on Administrative
Rules be deferred until at least September 29, 1989, to allow
participants to comment on the several proposed changes made in
the proposal during First Notice. Comments were to be received
by the Board by September 25, 1989.
On September 26, 1989, the Board received the Agency’s
Second Notice Comments. This was the only comment filed.
Although received tardily and unaccompanied by a motion to file
instanter, the Agency’s comments are accepted in view of the
minimal nature of the tardiness and the apparent lack of
prejudice to any participants.
The Agency has raised three points of contention in support
of its original proposal and in opposition to the Board’s
proposed Second Notice. First, the Agency states that the Board
has mis—characterized its testimony in stating that the Agency’s
data suggests “that internal regeneration of phosphorus is
generally not a critical factor in cultural eutrophication” or
that, in any case, “the record has certainly not shown that
internal regeneration of phosphorus is not a critical factor for
two of the lakes of concern identified in the EcIS, Lakes
Shelbyville and Carlyle” (Agency Second Notice Comments at page
1, quoting the Board’s Opinion and Order of September 13, 1989,
p. 5). The Agency notes that it has on several occasions
underscored the fact that internal regeneration also plays an
important role. However, the Agency asserts, “there is no
evidence that suggests that a point source’s loading rate has any
effect on a downstream lake’s internal regeneration of
phosphorus” (Ibid. at page 2, referring to testimony of Toby
Frevert at the June 23, 1989 hearing, R. at 80—103). The Agency
concludes that whether internal regeneration of phosphorus. is a
critical factor for Lakes Shelbyville and Carlyle “should have
absolutely no bearing on the question of whether distant
dischargers should be subject to the 1.0 mg/l standard, if there
1O4-~451
—2—
is no evidence that suggests a relationship between upstream
point source loadings and downstream internal regeneration”
(Id.).
The Board disagrees with the Agency’s reasoning. If it is
true, as the Agency contends, that there is no evidence
suggesting that a point source’s loading has any effect on a
downstream lake’s internal regeneration of phosphorus, it is at
least equally true that there is also no evidence suggesting that
a point source’s loading does not have an effect on a downstream
lake’s internal regeneration of phosphorus. It stands to reason
that incremental contributions of phosphorus to lake sediments
from any source correspondingly increase the amount of phosphorus
potentially available for conversion to orthophosphorus during
internal regeneration. It is thus anomalous for the Agency to
suggest on the one hand that internal regeneration of phosphorus
plays an “important role” in eutrophication and on the other hand
to discount the potential role of one type of phosphorus source,
particularly in close cases. It may will be true that the
predominant sources of sedimentary phosphorus in most Illinois
lakes are non—point discharges and native soils, but the Board
cannot base a rule which would apply to virtually all Illinois
lakes upon such assumptions. Rather than “obscuring the
realities of lake dynamics” as the Agency asserts (Id.), the
Board is, by its proposal, recognizing those realities, not
subsuming potentially vital distinctions within generalities.
As its second argument, the Agency disagrees with the
Board’s characterization of its (the Agency’s) support for an
Agency study entitled “Analysis of Sediment Phosphorus Levels in
Illinois Lakes” (Exhibit 57). The Agency contends that the Board
has “twisted” the Agency’s remarks about that study into a
“CoilcesE;
ion” that the study
~as essentially ~1a~ied” (ibid.
, p.
3). Consider the following statements made by the Agency’s t~o
witnesses regarding this study:
“That exhibit is clearly not being offered as
the ultimate
in
desirable scientific
analysis... If someone decided
to be critical
and find reasons why
it
wouldn’t meet a
scientific methodology or protocol, that would
be an easy thing to do.” (Testimony of Toby
Frevert, R. 6/23/89, p. 98)
“You
could
probably
from a statistical
standpoint rip it apart, if I can quote Mr.
Frevert’s words or if that is what he said.”
(Testimony of Gregg Good, R. 6/23/89, p. 120).
We have some difficulty visualizing
how
these comments were
misconstrued.
In any event, lest there be any doubt, the Board
indeed found the study inadequate as a basis for concluding that
—3—
there is
no discernible difference between the phosphorus content
of lake sediments that receive point sources and those which do
not. First, the study in fact does show a slightly (3.3) higher
average sediment total phosphorus level in lakes with tributary
point sources of phosphorus (Exh. 57, Table 4) than in lakes
without such point sources; whether this difference is
“significant” is not addressed. Second, the study by its nature
does not purport to examine scientifically the effect of a given
point source or sources upon a given receiving lake; the question
as to whether removal or addition of a source of phosphorus would
have an effect on that lake is neither asked nor answered.
Third, the trophic status of the lakes surveyed is not examined,
although some morphometric data is provided; the lakes’ relative
sensitivity to changes in phosphorus levels is not revealed.
Fourth, the lakes surveyed are not characterized as to whether
they are representative of Illinois lakes as a whole: the study
indicates without qualification or explanation that the Agency
has sediment total phosphorus data on only 66 of the
approximately 412 Illinois lakes and reservoirs which equal or
exceed 20 acres of surface area. Fifth, the study does not
indicate whether the sampling results reported remain valid:
fewer than one—third of the reported sediment samples are less
than 10 years old; data on Lakes Shelbyville and Carlyle are 12
years old.
In noting the foregoing deficiencies, the Board is in no
manner denigrating the Agency’s efforts. However, the study does
not support the Agency’s thesis; rather, it suggests a general
correllation between watershed area to surface area ratio (WA:SA)
and average lake sediment levels of phosphorus. It also suggests
a general correllation between other factors, including
morphometric characteristics, and sediment phosphorus levels.
Taken as a whole, it lends strong support to comments made
earlier by the Agency and others to the effect that the impact of
upstream phosphorus discharges on a lake or reservoir cannot be
gauged without a thorough understanding of the particular
eutrophication dynamics of that lake or reservoir (see, e.g.,
Exh. 1, pp. 33, 38, 41 and 53—54; Exh. 40, pp. 12, 18 and 128—
130; R. 7/21/87, p. 47; and R. 6/23/89, pp. 144—145).
The Agency takes considerable umbrage at the Board’s
assertion that other participants in this proceeding were not
willing to accept the Agency’s premise that distant point source
contributions of phosphorus are insignificant or negligible. The
Agency asserts that no participants were willing to refute that
premise either (Agency Second Notice Comments, p. 4). It further
asserts that “a scientific study conducted pursuant to a sound
methodology is worth any number of people who “pointedly
disagree” (Id.). As noted above, we do not have before us such a
scientific study in Exhibit 57; moreover, the individual
com.menter in question happened to be an officer of the Illinois
Lake Management Association as well as the North American Lake
1O4—~453
—4—
Management Society, and as such was entitled to a measure of
deference.
In this connection, the Agency has repeatedly discounted the
consequences of its lack of scientific data. It accuses the
Board of “attempting to use the inadequacy of our present
knowledge of phosmhorus behavior as a pretext for disregarding
what little knowledge we do possess” (Id.). This charge is, at
best, incongruous. In any event, the Agency in a certain sense
put its finger on the basic problem with this rulemaking. The
Board hardly trivialized the Agency’s proposal; it struggled with
the “inadequacy” and “little knowledge” problems and concluded
that it could not strip away the existing environmental controls
based on the inapposite inferences and over—generalized
conclusions contained in this record. While some commenters
endorsed the Agency’s proposal for regulatory relief, their
primary focus was on the added expense of the phosphorus
controls. This record is essentially devoid of substantive
testimony endorsing the Agency’s view of the underlying science
in support of its proposed relief. And contrary to the Agency’s
assertion, the Board has in fact provided significant relief,
even beyond that proposed by the Agency, as regards the riverine
exemption.
Despite its sizeable effort, the Agency has simply been
unable to supply sufficient data to demonstrate that harm to
Illinois lakes, at least some of them, would not result from the
wholesale deregulation of those point sources of phosphorus more
than 25 miles upstream. The Board is aware that, as the Agency
suggests, some point sources of phosphorus are, and will continue
to be, required to construct and operate phosphorus controls
which may ultimately prove unnecessary. Faced
with this diler~ma,
the
board must continue to err on the side ci tJ~e environment.
It must trust that aggrieved dischargers will come forward to
demonstrate that, in their particular circumstances, such
controls are not warranted. The Board believes that use of the
adjusted standard approach contained in these rules will serve as
a more efficient method for resolution on a lake by lake basis.
In its third argument, the Agency contends that proposed
Section 304.123(c) provides imperfect and incomplete guidance for
administering the adjusted standards relief mechanism. This may
be true; that section was not intended to be prescriptive in
detail. However, it must be remembered that pursuant to Section
28.1 of the Act, the adjusted standard relief mechanism is now
available even without specifying justification requirements in
the general rule. The provisions of Section 304.123(c) provide
needed additional requirements (i.e., additional to the
requirements set forth in Section 28.1(c) of the Act) for the
adjusted standard process in the form of narrative standards and
specific types of proofs required. Hence, the Agency is at least
placed in a better position than if there were no such standards
1O4~-/154
—5—
provided. For the sake of clarity, the Board will amend proposed
rule Section 304.123(c) to state that the new requirements are
additional to those set forth in Section 28.1(c) of the Act.
Should the Agency wish the Board to promulgate more specific
requirements, it may propose additional rules to the Board.
For the reasons stated above, the Board concludes that the
September 13, 1989 Second Notice proposed amendments to 35 Ill.
Adm. Code 304.123 should remain unchanged except for
clarification of Section 304.123(c). The proposal will be filed
as soon as possible with the Joint Committee on Administrative
Rules.
ORDER
The Board hereby proposes the following revised proposed
amendment for Second
Notice, which is to be filed with the Joint
Committee on Administrative
Rules.
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE C: WATER POLLUTION
CHAPTER I: POLLUTION CONTROL BOARD
PART 304
EFFLUENT STANDARDS
SUBPART A: GENERAL EFFLUENT STANDARDS
Section
304.101
Preamble
304.102
Dilution
304.103
Background Concentrations
304.104
Averaging
304.105
Violation of Water Quality Standards
304.106
Offensive Discharges
304.120
Deoxygenating Wastes
304.121
Bacteria
304.122
Nitrogen (STORET number 00610)
304.123
Phosphorus (STORET number 00665)
304.124
Additional Contaminants
304.125
pH
304.126
Mercury
304.140
Delays in Upgrading (Repealed)
304.141
NPDES Effluent Standards
304.142
New Source Performance Standards (Repealed)
104—455
—6—
SUBPART B: SITE SPECIFIC RULES AND EXCEPTIONS
NOT OF GENERAL APPLICABILITY
Section
304.201
304.202
304.203
304 .204
304.205
304. 206
304.207
304.208
304. 209
304.210
304.212
304.213
304.214
304.215
304.216
304.219
304.220
Wastewater Treatment Plant Discharges of the
Metropolitan Sanitary District of Greater Chicago
Chlor—alkali Mercury Discharges in St. Clair County
Copper Discharges by Olin Corporation
Schoenberger Creek: Groundwater Discharges
John Deere Foundry Discharges
Alton Water Company Treatment Plant Discharges
Galesburg Sanitary District Deoxygenating Wastes
Discharges
City of Lockport Treatment Plant Discharges
Wood River Station Total Suspended Solids
Discharges
Alton Wastewater Treatment Plant Discharges
Sanitary District of Decatur Discharges
Union Oil Refinery Ammonia Discharge
Mobil Oil Refinery Ammonia Discharge
City of Tuscola Wastewater Treatment Facility
Discharges
Newton Station Suspended Solids Discharges
North Shore Sanitary District Phosphorus Discharges
East St. Louis Treatment Facility, Illinois—
American Water Company
SUBPART C: TEMPORARY EFFLUENT STANDARDS
Section
304.301
304.302
APPENDIX A
Exception for Ammonia Nitrogen Water Quality
Violations
City
of Joliet East Side ~~tewater Treatment ~TLe~
L
References to Previous Rules
AUTHORITY: Implementing Section 13 and authorized by Section 27
of the Environmental Protection Act (Ill. Rev. Stat. 1987, ch.
111 1/2 pars. 1013 and 1027).
SOURCE: Filed with the Secretary of State January 1, 1978;
amended at 2 Ill. Reg. 30, p. 343, effective July 27, 1978;
amended at 2 Ill. Reg. 44, p. 151, effective November 2, 1978;
amended at 3 Iii. Reg. 20, p. 95, effective May 17, 1979; amended
at 3 Ill. Reg. 25, p. 190, effective June 21, 1979; amended at 4
Ill. Reg. 20, p. 53, effective May 7, 1980; amended
at
6 Ill.
Reg. 563, effective December 24, 1981; codified at 6 Ill. Reg.
7518; amended at 6 Ill. Reg. 11161, effective September 7, 1982;
amended
at
6 Ill. Reg. 13750, effective October 26, 1982; amended
at 7 Ill. Reg. 3020, effective March 4, 1983; amended at 7 Ill.
Reg. 8111, effective June 23, 1983; amended at 7 Ill. Reg. 14515,
effective October 14, 1983; amended at 7 Ill. Reg. 14910,
104-456
—7—
effective November 14, 1983; amended at 8 Ill. Reg. 1600,
effective January 18, 1984; amended at 8 Ill. Reg. 3687,
effective March 14, 1984; amended at 8 Ill. Reg. 8237, effective
June 8, 1984; amended at 9 Ill. Reg. 1379, effective January 21,
1985; amended at 9 Ill. Reg. 4510, effective March 22, 1985;
peremptory amendment at 10 Ill. Reg. 456, effective December 23,
1985; amended at 11 Ill. Reg. 3117, effective January 28, 1987;
amended in R84—13 at 11 Ill. Reg. 7291, effective April 3, 1987;
amended in R86—17(A) at 11 Ill. Reg. 14748, effective August 24,
1987; amended in R84—l6 at 12 Ill. Reg. 2445, effective January
15, 1988; amended in R83—23 at 12 Ill. Reg. 8658, effective May
10, 1988; amended in R87—27 at 12 Ill. Reg. 9905, effective May
27, 1988; amended in R82—7 at 12 Ill. Reg. 10712, effective June
9, 1988; amended in R85—29 at 12 Ill. Reg. 12064, effective July
12, 1988; amended in R87—22 at 12 Ill. Reg. 13966, effective
August 23, 1988; amended in R86—3 at 12 Ill. Reg. 20126,
effective November 16, 1988; amended in R84—20 at 13 Ill. Reg.
851, effective January 9, 1989; amended in R85—ll at 13 Ill. Reg.
2060, effective February 6, 1989, amended in R88—l at 13 Ill.
Reg. 5976, effective April 18, 19897; amended in R86—l7B at 13
Ill. Reg. 7754, effective May 4, 1989; amended in R87—6 at
Ill. Reg.
_______ ,
effective ________________________
Section 304.123 Phosphorus (STORET number 00665)
a) No effluent discharge within the Lake Michigan Basin
shall contain more than 1.0 mg/l of phosphorus as P.
b~ He eff~ien~from any ae~ree wh~ehd4aehar~eawirth~~
the
P~x R4ver Baain
above and 4ne~d4n~P4~akee sake and
wheac ün~rea~edwaa~e+ead 4a ~5Ø8 or mere ~ti+a~on
e4va~enth aha~ eon~ain more than ~9 mg~ of
pha~hertta a~ P7
e)r
No eff3~en~from any ae~ree whteh diaehargea ~e a ‘ake
or re~ervei~r w4th a
aurfaee area of 8~ heetarea
-~e
aere~-or more or ~e any ~r~b~ary ~e atieh a 3:ake or
reaervo~r and
whoae t~n~rea~ed
waa~e 3ead
~,
5888 or more
pep~a~4oneq va~en~a~ha~ een~a~nmore than ~78 mg~
of phoaphor~aaa P7
dt No eff~en~from any ae~ireewhieh d~aeharga~e a ~a~e or
reaervetr w+th a at~rfaee area of B~ hee~area ~28 aerea~
or mere wh4eh doea ne~ eem~y wi~hSee~en 38~--~9Sor ~e
arty ~r’~bu~ary~e at~eh a ‘ake or reaerve~r and whoae
~n~rea~ed wa~e ‘oad 4~a ~589 or mere pop~a~en
eqt~4va±en~aand wh4eh ~cane~governed by See~ena
3847~8~a~or ~
aha~ eon~a4n mere than
~7O
mg~~of phea~hor~aaa P~
104--h.57
—8—
~j No effluent from any source which discharges to a lake
or reservoir with a surface area of 8.1 hectares (20
acres) or more, or to any tributary of such a lake or
reservoir whose untreated waste load is 2500 or more
population equivalents, and which does not utilize a
third—stace lagoon treatment system as specified in
Sections 304.120(a) and (c), shall exceed 1.0 mg/l of
phosphorus as P; however, this subsection (b) shall not
apply where the lake or reservoir, including any side
channel reservoir or other portion thereof, on an annual
basis exhibits a mean hydraulic retention time of 0.05
years (18 days) or less.
j~j Pursuant to Section 28.1 of the Act, the owner or
operator of any source subject to paragraph (b) ma~
apply for an adjusted standard. In addition to the
proofs specified in subsection
(C)
of Section 28.1 of
the Act, such application shall, at a minimum, contain
adequate proof that the effluent resulting from grant of
the adjusted standard will not contribute to cultural
eutrophication, unnatural plant or algal growth or
dissolved oxygen deficiencies in the receiving lake or
reservoir. For purposes of this subsection, such
effluent shall be deemed to contribute to such
conditions if phosphorus is the limiting nutrient for
biological growth in the lake or reservoir, taking into
account the lake or reservoir limnology, morphological,
physical and chemical characteristics, and sediment
transport. However, if the effluent discharge enters a
tributary at least 40.25 kilometers (25 miles) upstream
of the point at which the tributary enters the lake or
reservoir at normal poo1 level, such effluent shall
not
be deemed to contribute to such conditions if th~
receiving lake or reservoir is eutrophic and
phosphorus
from internal regeneration
is not a limiting nutrient.
e-~-d) For the purpose
of
this Section the term “lake or
reservoir” shall not include low level poo1s constructed
in free flowing streams
or any body of water which is an
integral part of an operation which includes the
application of sludge on land.
f~ eemp~anee with the m~ta~ertaof paragraph (-e) ~hafl
be
aeh±evedby the feliew~ng da~e~-?
l~ Ne~~ettree~aha~ eemp~y en the effee~ve date ef
~h+~ regt1~e~ert-iand
sct~ree~~ha11 ee~p~yby Beee~ber ~
or stteh ether date as ~eqtt~redb~iNPDES per~t7 or
as ordered by the Beard tinder P~t~e~ or
~X of the Ae~7
10!’ 455
—9—
g) ?omp~4aneewith the m~ta~ortsof paragraph -(-d-) sha~
be aeh~evedby Beeember 3~ i985-~- or ~tiehother date as
reqti~redby NPBBS perm4~-or as ordered by the Beard
tinder P4~e ~ or P4t3e ~X of the i~iek~7
de) Compliance with the limitations of paragraph (b) shall
be achieved by the following dates:
1) Sources with the present capability to comply shall
do so on the effective date of this regulation
,fl
All other sources shall comply as required by NPDES
permit.
f) For purposes of this Section, the following terms shall
have the meanings specified:
fl
“Dissolved oxygen deficiencies” means the
occurrence of a violation of the dissolved oxygen
standard applicable to a lake or reservoir.
(BOARD NOTE: Dissolved Oxygen standards for general
use waters are set forth at 35 Ill. Adm. Code
302.206; Dissolved Oxygen standards for secondary
contact or indigenous aquatic life waters are set
forth at 35 Ill. Adm. Code 302.405.)
~j “Euphotic zone” means that region of a lake or
reservoir extending from the water surface to a
depth at which 99 of the surface light has
disappeared or such lesser depth below which
photosynthesis does not occur.
~j “Eutrophic” means a condition of a lake or
reservoir in which there is an abundant supply of
nutrients, including phosphorus, accounting for a
high concentration of Biomass.
4) “Eutrophication” means the process of increasing or
accumulating plant nutrients in the water of a lake
or reservoir. Cultural eutrophication is
eutrophication attributable to human activities.
5) “Internal regeneration” means the process of
conversion of phosphorus or other nutrients in
sediments of a lake or reservoir from the
particulate to the dissolved form and the
subsequent return of such dissolved forms to the
euphotic zone.
6) “Limiting nutrient” means a substance which is
limiting to biological growth in a lake or
104 459
—10—
reservoir due to its short supply or unavailability
with respect to other substances necessary for the
growth of organisms.
fl
“Unnatural plant or algal growth” means the
occurrence of a violation of the unnatural sludge
sta-dard applicable to a lake or reservoir with
respect to such growth.
(BOARD NOTE: Unnatural sludge standards for general
use waters are set forth at 35 Ill. Adm. Code
302.203; unnatural sludge standards for secondary
and indigenous aquatic life waters are set forth at
35 Ill. Adm. Code 302.403.)
IT IS SO ORDERED.
B. Forcade dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Suppleme,~ital Opinion and
Order was adopted on the /J~~dayof
~
,
1989, by a
vote of
~ /
(2
~~
J~.
~
Dorothy M. ~
Clerk
Illinois Pc~’1lution Control Board
in/v 460
