ILLINOIS POLWTION ~fl’ROLBOARO
Decexrber
15, 1988
IN
THE
MATIER OF:
PROPOSED AMENDMENT ¶10
)
R87-6
PHOSPHORUS EFFLUENT ST?NDARD,
)
35 ILL.
ADM. CX)DE
304.123
)
PROPOSED RULE.
SEXDND
NOTICE.
PROPOSED
OPINION
AND
ORDER
OF THE
3DAPD (by
J. Anderson):
A. Background
This rulemaking was initiated by the Illinois Environmental Protection
Agency (~gency)
on March 20, 1987. The Agency filed an amended proposal on
July 13, 1987. The Agency proposes that the Board make
the following changes
to the phosphorus effluent standard of 35 Ill. Adin. Code 304.123.
1. Delete existing
Paragraph 304.123(b). This would
result
in discharges to the Fox River Basin being
regulated
under the generally applicable
proposed
paragraphs.
2. Delete existing Paragraphs 304.123(c)
and
d). These
would be replaced
with a single
paragraph
which would
iir~ose
a 1.0 mg/l effluent standard on all disc±iargersof
2500 population equivalents (P.E.) or nore, txit only if
the discharge is located within 40.25 kilometers (25
miles) of a 20—acre or larger lake.
As amended, the
Agency proposal would also exempt all dischargers to Lake
Decatur
and
its tributaries; according to the Agency
in
its
“Additional Justification” for the
Amendment
to
Proposal filed July 13,
1987, this further amendment will
make the Agency’s proposal in this docket oor~sistentwith
the Agency’s reasoning
in its proposal
in Board
proceeding R83—20, In the Matter of: Proposed Water
Quality
and
Effluent Standard
Amendments
for Water in the
Sanganon
River Basin.
*
The current exemption for third—
stage
lagoon systems would be retained.
3. Delete
the cartpliance dates in Paragraphs (f) and
(g),
and replace
them
with a
single paragraph specifying
caupliance with the new standard
as soon as
the
discharger has the capability, but in no event later than
the “federally mandated” (NPDES) deadline of July 1,
1988.
The Board was advised by the Agency (a) that the
United States
Environmental Protection
Agency has
“adopted” the proposal as part of its approval of the
Illinois
NPDCS
program.
*
R83—20 was dismissed on April 7, 1988, upon Motion by the
Agency~
94—185
—2—
Merit hearings were held in Chicago on
May
18, 1987, and in Springfield
on July 21, 1987. Participants at the hearings besides the ~gency were the
Northeastern Illinois Planning Canitission
(NIPC), the
Department of Energy and
Natural Resources (DENR), the Urbana and Champaign Sanitary District (U—C
Sanitary
District)
and meirbers
of the public.
Following completion of the merit hearings, DENR, with the concurrence of
the Economic Technical Advisory Cam~ittee (ETAC), determined that an Economic
Impact Study (EcIS) was warranted in this proceeding. On March 31, 1988, an
EcIS report prepared on behalf of
DENR
by Blaser, Zeni
and
Co., a management
consulting firm, was filed with the Board (Exh. 40).
Upon receipt of the EcIS report, the Board scheduled and conducted two
additional public hearings to consider the EcIS. Present at these hearings
were
DENR,
the Agency
and
William L. Blaser, President of Blaser, Zeni and Co.
and
the principal author of the EcIS report. Some other rterrbers of
the EcIS
drafting
team were also present. Hearings were held on June 7, 1988 in
Springfield,
and on June 21, 1988 in
Chicago.
B. Eutrophication of Lakes and Reservoirs
The Participants introduced some 48 exhibits (one, Exh. 36,
was
withdrawn). Chief anong these were the Agency’s 1986 report, “Phosphorus: A
sunrnary of Information Regarding
Lake
Water Quality” IEPA/WPC/86—OlO
(introduced and admitted as Exhibit 1), and the EcIS Report, “A Economic
Analysis of Proposed Amendments To Water Pollution Regulations Phosphorus
Discharges
—
R87—6”, Department of Energy and Natural Resources, 1988
(introduced
and
admitted as Exhibit 40). These
two
reports tend to rely upon
and
sufiTnarize data contained in
many
of the other exhibits; for instance,
pages 8—13 of the Agency’s report (Exh. 1) cites Exhibits 8—12 in support of
its
discussion of phosphorus transport in streair~ (see also R.2l—22
5/18/87).
Exhibits 8—12 are reports by various authors of results of
studies of phosphorus in a nunber of settings including the Lake Erie
watershed (Exh. 8), the Lake Champlain Basin (Exh. 10) and a portion of the
Sangamon River in Illinois (Exh. 12).
Both principal studies and several conmenters viewed phosphorus loading
as, generally,
the key
determinant of “eutrophication”. The term
“eutrophication”
was
generally used to describe the accelerated decline in
water quality of lakes attributable to
human
activities which introduce
excessive nutrient (e.g., phosphorus) loadings; this is also referred to as
“cultural eutrophication” (Exh. 40,
pgs.
10—12;
Exh.
32, Att. 1,
pgs.
10—
11). The corrmenters and reports noted, however, that lake eutrophication is a
very complicated process, involving significant other factors, such as
retention time, turbidity, lake depth, other nutrient loadings, temperature,
algal species and abundance, internal regeneration, seasonal timing and
numerous other factors. (Exh.
1,
pgs. 8, 30—34;
Exh.
40,
pgs.
12—16,
Exh.
32
and attachments). All comenters agreed that control and
rroderation of
eutrophication require knowledge of lake—specific conditions; control of point
sources of phosphorus may
be of little use in one area,
but may be valuable in
others. All
agreed that in—lake phosphorus management strategies could be
highly beneficial. Changes in other factors (e.g., turbidity) may increase or
94-186
—3—
decrease the relative importance of
phosphorus loading (Exh.
1, pg. 57;
Exh.
40,
pgs.
128—131,
Exh. 32).
One corrir~nter in particular, Dr. Paul F.
Derr, an envirorirental
consultant to FMC Corporation, characterized phosphorus, ~
se,
as “not the
cause of eutrophication” (Exh. 32, pg. 2; emphasis in original). Rather, he
asserted, phosphorus is but one of “15 to 20 essential nutrient elements”,
high inputs of which lead to cultural eutrophication, “particularly when they
enter
streams and
lakes as organic wastes” (id). Such organic forms,
according to Dr. Derr, “place a large
oxygen
demand on these waters, which
leads to rapid recycling of all the nutrient elements from the sediments into
the surface waters to support algal growth” (id; R.8l—82 7/21/871; emphasis
in original). The value of phosphorus measurements and standards, concludes
Dr. Derr, is as “nothing more
than
a tracer of organic pollution which
contains all of the
fifteen
to
twenty
nutrient
elements” (Exh.
32, pg. 3, and
Att. III, pg. 11; R.84—85 7/21/87).
In turn, he notes, phosphorus removal
and
control is only valuable as a “surrogate” for BJD and
~JD
control, that
is, for removal
and
control of the 15 to 20 nutrients (R.95—96,lol—l03 and
109—110 7/21/87),
since control of phosphorus tends to control the other
nutrients as well. Neither the Agency
nor DENR
took issue with Dr. Derr’s
statements; as Dr. Derr noted, the essential difference
between his views and
those expressed by the Agency in Exhibit 1 is the Agency’s occasional
reference to “phosphorus removal” rather than “nutrient removal” (R.llO
7/21/87).
C. Trophic Status of Lakes and Reservoirs
Notwithstanding the uncertain correlation
between
phosphorus and lake
eutrophication, both
the
Agency
and DENR
focused their attention upon
phosphorus in gauging the trophic status of lakes
and
reservoirs.
Although
the Agency’s phosphorus study (Exh. 1) and the EcIS report (Exh. 40) differed
as to the use of the so—called “Vollenweider model”, they have both used the
model (see, e.g., Exh. 1,
pgs.
32—33, and Exh. 40,
pgs.
17—19). The model, as
modified by Rast
and
Lee and others provides a
means
of determining “critical”
phosphorus loading rates of lakes and for classifying lakes’ “trophic states”
based on their phosphorus loading,
morphometric characteristics and
algal
biomass. (see Exh. 1, pg. 33) Under this model, lakes and reservoirs are
generally classed as being oligotrophic (total phosphorus concentration of
less than 10 ug/l), mesotrophic (total phosphorus concentrations of 30—80
ug/l), or eutrophic (total phosphorus concentrations of more
than
80 ug/l).
Lakes or reservoirs having total phosphorus concentrations of at least 100
ug/l are sometimes described as “hypertrophic”. Although 86 percent of all
Illinois lakes surveyed exhibit eutrophic conditions (Exh. 1, pg. 14),
two
of
the six lakes potentially impacted by this rulemaking
may
not
be classified as
eutrophic; a third has not had its trophic state redetermined since
its
division into
two
separate impoundments in 1981 (see following). In any
event, due to seasonal variations and other factors, the range of phosphorus
values from individual samples can overlap; that is a single sample from a
eutrophic lake may exhibit a total phosphorus concentration which is also
consistent with another trophic status (see Exh.
40, Table 111—2, pg. 18).
94—187
—4—
D. The Nature and Behavior of Phosphorus
Although the hearings in this proceeding were sometimes contentious,
there was little disagreement over the Agency’s characterization of the
behavior of
phosphorus
in streams and lakes. It was not disputed that “for a
typical wastewater discharge to a stream there is a significant increase in
instream phosphorus concentration, depending on dilution, followed by a rapid
decline in water column concentrations to the point where ambient levels
approach the background levels found upstream. This typically occurs within
approximately 10 miles under low flow conditions” (Exh. 27, pg. 4; R.39
7/21/87).
There was also agreement that the rapid decline in water coluun
concentration of phosphorus was due primarily to dilution.
Another factor may
be the conversion of phosphorus from one of its dissolved forms into one of
the particulate forms. Although the phosphorus standard is (and under the
Agency’s proposal would continue to be) expressed in terms of total phosphorus
(the sum of particulate phosphorus and dissolved phosphorus), measurement is
taken of only the water colurrn. The Agency did not suggest that the decline
in total phosphorus measurements indicated destruction or conversion of this
element. Rather, its Final Comments (PC #10, p.1) suggest that this and other
basic
EcIS conclusions on phosphorus transport and loading (e.g., that
substantially all phosphorus released to a tributary stream eventually reaches
the receiving lake or reservoir) are “self—evident”.
No comenters disagreed with the Agency characterization of its
experiences with small dischargers (or defining small dischargers as all those
with flows of less than 2500 population equivalents, or “P.E.”). According to
the Agency, such facilities find it very difficult and disprcçortionately
expensive to achieve and maintain compliance with the standard using small
mechanical facilities (R.20—21 5/18/87).
Similarly, there was no
disagreement with the Agency’s assertion that a phosphorus effluent standard
less. than 1.0 mg/l is technically infeasible (R.13,l7—18 5/18/87).
Finally,
there was no opposition to the Agency’s exemption of Lake Decatur tributaries,
which was based essentially on its short hydraulic retention
time: the
two
other factors cited by the Agency, namely, high turbidity and extensive non—
point contributions (R.42 7/21/87),
are shared to some degree by most of the
other five lakes identified in the EcIS as affected under the Agency’s
proposal (see below).
E. The Impact of the Agency’s Proposal
The EcIS determined that there are six lakes which have tributary
treatment plants potentially impacted by the Agency’s proposal (EcIS report,
pg. 2). These are:
1.
Crab Orchard Lake
2.
Lake Decatur
3.
Pistakee Lake
4.
Lake Charleston
5.
Lake Shelbyville
6.
Lake Carlyle
94—188
—5—
The authors of the EcIS report identified and listed sane 38 point
sources which are tributary to these six lakes and which are subject to the
current standard (Exh. 40, Table 11—1, pg. 3). Of these point sources, some
21 are listed as being
exempted from the
1.0 mg/l phosphorus standard under
the Agency’s proposal. These 21 point sources, and the reason(s) for their
exemption under the
Agency’s proposal, are
suninarized in Table 11—2 of Exhibit
40, which
table
is
reproduced below:
TABLE
11-2
Illinois Wastewater Treatment Plants
Exempted by
Adoption of Proposed Regulation
R87—6
As of 2/15/88
Reason For Exemption
Phosphorus—
25 mile
Increase in
Lake Decatur
Removal
Lake~~MrP
Exemption
P.E. Exemption
Exemption
Capability
CARLYLE
CF Industries
X
No
Pane
x
Yes
Shelbyville
x
Yes
cHkRLES’ION
Arcola
X
Yes
Tolono
x
No
Tuscola*
x
No
Villa Grove
x
Yes
CRAB
ORCHARD
Crab Orchard NWR
x
No
DECA’IUR
Cerro Gordo
x
x
No
Fisher
x
x
x
No
GibsonCity
x
x
Yes
Mahomet
x
x
No
Monticello
x
No
Viobin
Cirp
x
No
PISTAKEE
Hebron
x
Yes
SHELBYVILLE
Arthur
x
No
Bement
x
x
No
Bethany
x
No
Kraft, Inc.
x
No
Urbana-ChalTpn.
x
Yes
US md. Chem.
x
No
*
City will combine two existing plants into one new facility.
94—189
—6—
The gross “benefit” of adopting the
Agency’s
proposal for these 21
sources, in terms of cost savings only, is estimated by the EcIS to amount to
$567,566
per
year (Exh. 40, Table XI—2, pg. 102).
Actually, since two
of
these 21 point sources, Kraft, Inc. and Viobin Corp., are shown as having no
measurable phosphorus in their effluent, (Exh. 40, Tables VIII—4, pg. 67, and
XTE—1, pg. 101), the annual benefits are actually spread
among the remaining
19
point sources (Exh. 40, Table XI—2, pg. 102). These benefits range from
$9,779 for Bethany to $136,726 for U.S. Industrial Chemical
Company
(051CC).
No “non—dollar” benefits were identified by the EcIS (Exh. 40, pg. 103).
As Table 11—2 of the EcIS report shows, 16 of the 21 sites which would be
exempt from the operation of the current standard by adoption of the Agency’s
proposal would qualify for that exemption by virtue of the 25 miles exemption;
four of these 16 sites would also qualify for exemption under one or more of
the other criteria
changed
under the proposal (i.e., the increase in the
population equivalents criteria and/or the blanket exclusion for Lake Decatur
tributaries). Hence, 12 of these sites (including Kraft, Inc.) would be
exempt solely by virtue of the 25 mile exemption.
F. Costs vs. Benefits
The authors of the EcIS attempted to assess the costs of adopting the
Agency’s proposal (Exh. 40,
Chapter XII, pus.
104—116).
They considered as
“primary costs” the reduction in the quantity and quality of recreational
activities associated with each of the affected lakes (Exh. 40, pg. 105); the
implicit assumption is that increases in phosphorus loading causes or triggers
such reduction in recreational activities.
“Secondary costs” were also
identified. These include losses of expenditures for sport fishing and other
forms of aquatic recreation as well as costs to farmers for obtaining
alternatives to those phosphorus—rich wastewater treatment plant sludges used
as fertilizer.
The report also suggested that other consequences, including
impossible—to—quantify costs, may occur (Exh. 40, pg. 105). The report
identified no non—monetary costs (Exh. 40, pg. 115).
The EcIS acknowledged that no study had been found which correlates
changes in phosphorus concentrations with changes in aquatic recreation under
circumstances applicable to Illinois
(Exh.
40, pg.
117). It concluded that
such scarcity of data precluded any reasonably defensible dollar estimates of
cost consequences of adoption of the proposal (Exh. 40, pg. vii and 117). It
proposed, in place of such a study, use of a form of break-even analysis,
under which the known benefits were correlated with the corresponding
reduction in aquatic—related recreation, expressed as “consumer surplus”,
adopted from Ciecka, James E., et al., An Economic Analysis of Phosphorus
Control and
Other Aspects of
R76—l,
Illinois
Institute for Environmental
Quality, Chicago, 1978 (Exh. 40, pgs. 118—122 and Appendix 13—2, pus. Al3—1 to
A13—3). According to this methodology, the reduction required in
aquatic—
related recreation to exceed anticipated benefits, if one assumes benefits and
costs both
commence
in 1989, is approximately 2.8 for
all six lakes, with a
range of 0.3 for Lake Pistakee to 15.8 for Lake Charleston
(Exh. 40, Table
XIII—l, pg. 119). However, the authors
argue that costs associated with
increased phosphorus loading may not be
fully realized for
some time,
as
it
can take months and perhaps years for the phosphorus (especially in it~s
94—190
—7—
particulate form) to be transported to the receiving lakes or
reservoirs and fully assimilated. For the sake of comparison,
the EcIS authors calculated and displayed the results of assuming
that costs would not begin (manifest themselves) until five years
after benefits had begun. Under this set of assumptions, the
reduction in aquatic—related recreation necessary to exceed
anticipated benefits was calculated to be approximately 3.9 for
all six lakes, with a range of from 0.4 for Lake. Pistakee to
22.2 for Lake Charleston (Exh. 40, Table XIII—2, pg. 120).
Finally, the authors of the EcIS argue that “to determine whether
the benefits of adoption exceed the costs, it is not necessary to
accurately estimate the resulting decrease in usage”. Rather,
they suggest, it is necessary only “to determine whether the
estimated decrease in usage is less than the break—even
percentage” (Exh. 40, pg. 121). The EcIS report does not explain
how one can determine whether the “decrease in usage” is less
than some value (“break—even percentage”) without some estimation
of what that “decrease in usage” is.
G. EcIS Conclusions
The EcIS concludes that no significant change in aquatic—
related recreation will occur with respect to any of the
potentially impacted lakes, except for Lake Shelbyville, where
the resulting decrease in recreational usage is described as “un—
quantified”. Also, “un—quantified” is the change in aquatic—
related recreation for all six lakes taken as a whole (Exh. 40,
pgs. 121—122). Using the Vollenweider model, the EcIS predicted
an average percentage increase in total phosphorus loadings to
the receiving lakes resulting from the approval of the Agency’s
proposal as follows:
Lake
Status
Increase in P
Crab Orchard
Eutrophic
0.4
Pistakee
Eutrophic
0.5
Decatur
Eutrophic
6.7
Charleston
Eutrophic (?)l*
10.5
*
1 Trophic status of this lake has not been determined
since its division into two separate impoundments in 1981.
94—191
—8—
Shelbyville
Mesotrophic
19.4 (26.9)2
Carlyle
Mesotrophic(?)3
5.4
(Date for the
above
graphic was extracted from Exh. 40, pus. 24,28—
29,34,38—39,44,48—49,57,61,66—67,71—73,77,81 and 85—86).
The EcIS conclusions for the lakes which are described as “Eutrophic” are
based generally
upon the assumption that additions of
phosphorus to eutrophic
lakes should not
cause
a biologically significant increase in algal
productivity. The EcIS uses
virtually identical language with respect to each
of the first three lakes, suggesting that the non—effect of additional
phosphorus is due to the “already high levels of primary
production” (see pgs.
29,38 and 48). It appears to hold that Lake Charleston also falls within this
prirxiple, but also characterizes Lake Charleston as more “riverine” than
lake-like due to its very short hydrological retention time
(Exh.
40, pg 61)
and thus
less likely to support high production of algal biomass despite
its
eutrophic classification. It also appears to suggest that Lakes Decatur and
Charleston are more similar to each other than to the other potentia~1y
affected lakes, due mainly to their coniron very low retention times.
The EcIS conclusion for Lake Shelbyville is that the fairly substantial
increase in phosphorus loading
and
chlorophyll a concentration which would be
attributable to adoption of the proposal “may be considered a biologically
significant increase”. (Exh. 40, pg. 72); this conclusion is tempered by the
possible effect of unidentified other factors which may be limiting algal
productivity. In any event, the lake is described as possibly
being
in a
“transitional stage of eutrophication” (Id).
Further complicating the issue
is the existence of somewhat contradictory data regarding the phosphorus
loading attributable to USICC.
Two
possible assumptions were identified.
“Assumption I” is that the USICC effluent phosphorus concentration is 1.64
m/l as suggested by (JSICC’s 1981 permit
application data. “Assumption II” is
that tJSICC’s effluent phosphorus concentration is 5.8
irv~/1as suggested by a
*
2 Second figure (in parenthesis) is based on more recent
but less reliable (single sample) data regarding effluent from
USICC. (see page 10).
EcIS (pg. 85) states that this lake “can be considered
an eutrophic lake, but may also be borderline mesotrophic”. This
is due to conflicting chlorophyll a and N:P data. Tributaries to
Lake Shelbyville are also tributary to this lake, which is
downstream
from the Shelbyville dam.
See Exh. 40, pg. 61. Lake Charleston’s mean hydraulic
retention time is a
fraction of one day; both Exhibit
1 and
Exhibit 40 place Lake Decatur’s mean hydraulic retention time at
11 days although the Agency’s statement (Exh. 27, pg. 6; R.42
7/21/873 suggests its retention time is 7 days. The Board was
unable to locate, in the record of this proceeding or in R83—20
(to which the Agency referred), support for the 7—day assertion.
94—192
—9—
single—sample value obtained by the Agency in 1987. This difference is
described
by the EcIS as “significant” (Exh. 40, pus. 72—73). Simply
stated,
if Assumption I is utilized, the percent increase in phosphorus loadings to
the lake from all sources is 19.4, while the figure
jumps
to 28.9 under
Assumption II (Exh.
40, pg.
73). Put another way, the Board
has calculated
that under Assumption I, USICC will contribute a 1.45 increase in
phosphorus
loadings to Lake
Shelbyville if the Agency’s proposal is adopted (2063 kg/year
divided by 142,131 kg/year); under Assumption II, USICC will contribute a
10.88 increase in phosphorus loading under identical conditions (15,470
kg/year divided by 142,131 kg/year).
As for Lake Carlyle, the EcIS is anbiguous. While suggesting the lake
can be considered eutrophic, it notes that a relatively low chlorophyll a
level exists, suggesting that phosphorus may not be the limiting factor in
algal productivity. Lake Carlyle, it asserts, “may be a lake that is in a
delicate balance between mesotrophy and eutrophy” (Exh. 40, pg. 85). The
effect of other
factors influencing the lake’s trophic state is suggested but
not quantified by the EcIS. Based on the assumption that one or more such
other unidentified factors may be at work in Lake Carlyle, the EcIS concludes
that the 5.4 increase in phosphorus loading would have no effect on primary
(algal) productivity “unless a change in these limiting factors would occur”
(Exh. 40, pg. 86).
It must be
remeirbered
that the EcIS’ descriptions of
trophic states are
primarily reflective of the biological production levels of each lake; other
phenomena affecting the trophic state of a lake are not equally taken into
account. Hence, as the EcIS report acknowledges (pg. 12), “a lake may be
defined as eutrophic because of its nutrient status, hit in terms of
productivity
—
it may be something less than eutrophic”.
Unfortunately, the EcIS provides little in the way of guidance as to
either the economic impact of these proposed rules or the appropriate measure
of when a particulate point source contributes a significant phosphorus load
to a receiving lake or reservoir. It
provides no economic impact figures,
and
its “break—even” analysis formula lacked meaningful riuthers to plug into the
equation. The Board cannot comprehend how one can, as the EcIS suggests (pg.
121) “determine whether the resulting decrease in usage is more or less than
the
break—even percentage”
if one does not or cannot estimate that resulting
decrease in usage. Neither the EcIS
nor any other exhibit or testimony
attempted to substantiate its conclusions regarding loss of aquatic—related
recreation except to the extent that all eutrophic lakes were essentially
lumped together as experiencing “no significant change”. All other
conclusions regarding loss of such use were “un—quantified”.
Board Conclusions
The Board notes that the Record of this proceeding does not
provide the
Board with unambiguous data on the role of phosphorus, (particularly measured
as total phosphorus in the water colurrn) in the eutrophication of lakes
generally. Neither for that matter, does it provide solid data needed to
assess the impact and contribution of phosphorus to the trophic status of any
of the six lakes discussed at length in the EcIS. Absent such data, it is
94—194
—10—
very difficult to project the consequences of increasing phosphorus
loadings
as suggested by the Agency’s proposal. However, there is little to suggest
that phosphorus is not at least useful in broad general terms in gauging the
nutrient load tributary to a lake. Since there is ample support on the record
for the notion that control of phosphorus is effective to control such
nutrient loading, the Board will (as have most of the comenters) presume
that, all other factors being equal, phosphorus is the limiting factor in
eutrophication.
This presumption, of course, can be overcome by other
factors. As more information become known about the eutrophication dynamics
of specific lakes and reservoirs in Illinois, it
may be necessary to
reconsider this position.
Within these limitations, the Board finds that the
Agency
has amply
demonstrated the wisdom of applying a 1.0 mg/l
effluent phosphorus as P
standard upon all point sources of 2500 P.E. or more located within 25 miles
of a 20—acre or larger lake or reservoir. The
testimony
demonstrates that the
1.0 mg/I standard is attainable
using
conventional treatment,
and
that
phosphorus control for point sources of less than 2500 P.E. is uncertain,
expensive and difficult. The Board also believes that the treatment
requirement for all disthargers within 25 miles is warranted based on the
Agency’s data showing that phosphorus from nearby point sources is more likely
to reach the lake in the more readily available dissolved phosphorus form for
iirniediate algae uptake
than
is the phosphorus from more distant dischargers.
Exemption of tributaries to Lake Decatur appears warranted,
due primarily to
its short hydraulic retention time, although the
record is not absolutely
clear on that point.
The Board is not, however, satisfied that the Agency has demonstrated
that significant point sources of phosphorus which happen to be located more
than 25 miles from a lake can be generally ignored by these phosphorus
rules. First, what little is known
of the six impacted lakes from the record
of the proceeding suggests that, at least in some
cases, particulate
phosphorus could have a significant impact on trophic status. At least two of
th& lakes are classified as mesotrophic. One of these is described in the
EcIS as “transitional”, the other as possibly being in a “delicate balance
between mesotrophy and eutrophy”. This suggests to the Board that even small
changes in
phosphorus loading could be critical. When other
factors are
considered,
one
or more of the other four lakes potentially
impacted
by this
rulemaking
may
prove either not to be eutrophic
or to be
similarly
“transitional” or “balanced” (e.g., Lake Charleston, for which no current data
exists, and Lake Decatur, which was described by the EcIS report in docket
R83—20 Exh. 4(a),
pg. 99
as
being
non—eutrophic). Second,
no
exhibit or
testimony was offered to challenge the EcIS assumption that substantially all
phosphorus released in an effluent eventually reaches the downstream lake or
reservoir. Third, no exhibit or testimony was offered to challenge the
concept that particulate phosphorus may, through the processes of internal
regeneration, be converted back into the dissolved form through anoxic,
aerobic and
other processes.
Indeed,
the Agency stated that such internal
regeneration can be a “significant factor” in lake eutrophication (Exh. 1,
pus. 6—8, 34—38
and
54). This is a view evidently shared by Dr. Derr (Exh.
32, pg. 2) and
DENR (Exh.
40, pg.l5).
94—193
—11—
The
foregoing
suggests to the Board that distance alone is not
dispositive as to the need for phosphorus controls on a point source. The
record contains numerous unchallenged assertions that additional study is
needed in order to understand the specific dynamics of eutrophication on a
lake—by—lake basis (R.l6 5/18/87;
Exh. 1, pg. 57; exh. 7; Exh. 40, pus. 128—
131). Absent such understanding, the record suggests that the role and
relative impact of particulate phosphorus (from any significant source,
including sources more than 25 miles distant) on the water quality of a given
lake cannot be readily determined. The record affirms (e.g., Exh. 29, R.6l—64
7/21/87)
that internal regeneration of phosphorus can be critical.
There remains the thorny issue of what constitutes a significant
individual point source contribution to a lake’s overall phosphorus loading.
The EcIS reveals that at least one measure, the potential untreated phosphorus
loading from a given point source relative to the overall potential phosphorus
loading of the receiving lake, is supported by the record. The EcIS indicates
that only a handful of point sources (7) more than 25 miles upstream of the
receiving lakes potentially contribute more than 3 of the total phosphorus
loading to such lakes. Two of these (Urbana-Champaign and USICC) are
tributary to Lake Shelbyville and, by extension, to Lake Carlyle, the lakes of
obvious greatest concern to the authors of the EcIS. Since the EcIS suggests,
and the Agency
does
not deny, that relatively small contributions to a
mesotrophic lake might result in eutrophic conditions, it would seem prudent
and fully
supported by the
record to at least include within the standard
those point sources which have been identified as sizeable or significant. In
this case, the EcIS has noted the importance of tJSICC’s daily flow of 2.336
million gallons per day as the third—largest point source potentially affected
by these rules;
it further describes the range of variables in that
discharge
as “significant”.
The Board notes that under either “Assumption I” or
“Assumption II”
(see above), the relative contribution of USICC is at least 3
(actually,
under Assumption I, 3.1). The Board finds that 3 is therefore a
reasonable measure of “significance”.
It is also apparent to the Board that, insofar as is known, Lake
Charleston has characteristics similar to those of Lake Decatur. Their common
distinguishing feature is their relatively low hydraulic retention times. If,
as the Agency suggests, sources tributary to Lake Decatur should be exempted,
there appears to
be
no reason to not exempt sources tributary to
Lake
Charleston or any other lake exhibiting such “riverine” traits. The Board
will, therefore, so frame this proposal as to exclude sources tributary to
lakes having short retention times. The Board finds that a retention time of
18 days (0.05 years) or less is a reasonable standard, consistent with the
Agency’s pronouncements and its exhibits in this proceeding, particularly
Exhibit 7.
Finally, the Board declines to adopt
the July
1, 1988 deadline as
proposed
by the Agency in its subsection (d)(2) of
Section 304.123, and
which
the Agency states is federally mandated. The
Board
does so for three
reasons. First, the date is manifestly impossible to attain; because of
procedural requirements the proceedings in this docket were not capable of
being completed until after July
1, 1988.
Second, this date
may be subject to
unilatera1~rrodification and can cause confusion. The Board notes that the
94— 195
—12—
regulatory compliance dates for combined sewer overflows (35 Ill. Adm.
Code
306.306) were also derived from such administrative deadlines, which deadlines
have
long since been
superseded.
Third, any enforceability
of the date
derives from the Act, so the Board’s language is
unnecessary. Therefore, as a
matter
of practice, the Board is reluctant to embed such requirements in its
regulations. The Board considered
removing this subsection, now subsection
(e)(2), in its entirety, consistent with its view that whatever authority the
Agency may have to condition its permits in this regard is derived from the
Act, rather than from Board rules. It should thus be understood that the
reference in (e)(2) to
compliance dates
“as required by NPDES permit” is
intended by
the Board as purely
informational
rather than as a purported
delegation of authority to the Agency by Board rule. The Board requests
conit~ntas to whether the inclusion of (e)(2), in whole or in part is
appropriate (see
below
for provision of comment period).
The proposed
rules which the Board
today proposes for second notice
should be understood as interim measures, representing an accommodation of the
needs expressed by the Agency, but limited to the relief actually justified by
the record of this proceeding. It is the Board’s wish that the requisite
studies of individual lake eutrophication
dynamics be
undertaken
by the Agency
and/or
DENR
promptly. The results of such studies should pave the way for
further refinements in the phosphorus standards or, indeed, for framing a
regulation that addresses limiting factors other than phosphorus, if
appropriate to the dynamics of individual lakes.
Because these proposed rules are interim measures, the
Board cautions
that those dischargers which under this proposal would be relieved from the
necessity of installing or maintaining phosphorus control facilities should
not rush to dismantle any such facilities
now
in place or in progress; it is
clear to the Board that one possible
outcome
of
future lake studies is that
phosphorus/nutrient
control
requirements may be reinstated on a lake-by—lake
basis.
Due to the differences between the amendments as proposed by the Board
and as proposed by the
Agency,
the Board will defer “Second Notice” filing of
this proposal with the Joint Ccximittee On Administrative Rules to allow
interested participants opportunity to
comment. Such comments
should be in
writing and must be received by the
Board
by Monday, January 23, 1989. Such
comments should be limited to the differences between the respective
versions
of the amendments and should be
limited
to matters of record in this
proceeding.
ORDER
The Board hereby proposes the following proposed
amendments for
Second
Notice, which is to be filed with the Joint Committee on Administrative Rules.
TIThE~35:
ENVIR3NMENTAL PR~ECTION
SU~IThEC:
W~TERFOtLtJTIc~
CHAPTER I:
POLLtYI’ION
CO~fl’I~DL&~ARD
94—196
—13—
PART
304
EFFLUENT STANDARDS
SUBPART A:
GENERAL EFFLUENT ST~iNDAR)S
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
(SWRET riurber
00610)
304.123
Phosphorus
(SIORET ruither 00665)
304.124
Additional Contaminants
304.125
304.126
Mercury
304.140
Delays in Upgrading
304.141
NPDES
Effluent Standards
304.142
New Source Performance Standards (repealed)
SUBPART B: SITE SPECIFIC RULES AND EXCEPTIONS
NCYT OF
GENERAL
APPLICABILITL
Section
304.201
Calumet Treatment Plant Cyanide Discharges
304.202
Chlor—alkali Mercury Discharges in St. Clair County
304.203
Copper Discharges by Olin Corporation
304.204
Schoenberger Creek:
Groundwater Discharges
304.205
Jchn Deere
Foundry
Discharges
304.206
Alton Water Company Treatment Plant Discharges
304.207
Galesburg Sanitary District Deoxygenating Wastes Discharges
304.208
City of Lockport
Treatment Plant Discharges
304.209
Wood
River Station Total Suspended Solids Discharges
304.212
Sanitary District of Decatur Discharges
304.213
Union Oil Refinery Airutonia Discharge
304.214
Mobil Oil Refinery An~roniaDischarge
SUBPART C: TEMPORARY EFFLUENT
STANDARDS
Section
304.301
Exception for Aiimnia Nitrogen Water Quality Violations
Appendix A References to Previous Rules
AUTEORITy: Implementing Section 13 and authorized
by Section 27 of the
Environmental Protection
Act
(Ill. Rev. Stat. 1981, ch. 111—1/2, pars 1013 and
1027)
94—197
—14—
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
3 111. 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. Req. 7818,
amended
at 6 111.
Req. 11161,
effective September
7, 1982; amended at 6 111. Req. 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,
effective
November
14, 1983; amended at 8 Ill. Req. 160(1, effective January
18, 1984; amended at 8 Ill. Req. 3687, effective March 14, 1984; amended at 8
Ill. Req. 8237,
effective
June 8, 1984; amended at 9 Ill. Req. 1379, effective
January 21, 1985;
amended at
9 III. Reg. 4510, effective
March
22, 1985;
peremptory
amendment at 10 Ill. Req. 456, effective December 23, 1985; amended
at 11 Ill.
Req.
3117, effective January 28, 1987; amended in R84—l3 at 11 Ill.
Reg. 7291, effective April 3, 1987; amended in R86—17(A) at 11 111. Req.
14748, effective August 24, 1987; amended in R84—16 at 12 Ill. Req. 2445,
effective January 15, 1988; amended in R87—6 at
_____
Ill. Reg.
_____
effective
_______________
Section 304.123 Phosphorus
(S~JRETrunter
00665)
a) No effluent discharge within the Lake Michigan Basin shall contain
more than 1.0
mg/i
of phosphorus as P.
b)~ No
of flt~~rt~
from orty ~et~ree
W~4eh
&4ethorgeo w~th~rtthe Fo~eEther
Be~inobo,e ond ~ne~tt&4n~gP4e~&~eeEeke ortd w~toeo~i*ree~ed wo~e
or more ~~o~on
e~4v~let*~ehall eort~n more
thor,
~ mg~4of phephortis o~
e’3~ No ef?1uon~from erty eoureo wl~e~d~4eehergee~o
o +&~eor re~ervo4r
w4th o etrrfoee oreo of 8~4heethree +2~eeres~or more or ~o orty
~r4buthry~o ~treho ~&~eor
reoervo4r end whore trrttreo~edwee~e~oed
~e 5O~Gor more pop ~ort e~tr~ert~eeheH eert~oi~rtmore then ~-O
rftg7~3:
of oephortrs o~
d+ No effltien~from any sorree wh4eh d4seharge ~o a
or reservo4r
w4th ~ strr?aee area of 8~4hee~ares
f2~aeres+
or
more w~thdoes nob
eemp~ywith
Seeb~on36~O5
or bo any br4btibary bo aneh a
~&te
or
reser~o~rend whose tin~reabedwesbe ‘ead 4e
~5&9
or more
popt~3~e~4on
equ4i~’eieobsand wh4th ~s nob governed by Seobi:ons ~O .~iOfa+or
sha~eer*a4rt more than ~ mg,’3 of phosphertis as
b) 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 within 10.25 kilometers (25
miles) of the point where the tributary
enters the lake or reservoir,
whose untreated waste load is 2500 or more
population equivalents,
and
which does not utilize a third-stage lagoon treatment systéii~s
specified in Sections 304.120(a)
and
(c), shall exceed 1.0
mg/l~U
phosphorus as P.
94—198
—15—
c)
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
beyond
10.25 kilometers (25
miles) of the point where the tributary enters the lake or reservoir,
whose untreated
waste load is 2500 or more population equivalents,
and which does not utilize a third—stage lagoon treatment
syst~nas
specified in Sections 304.120(a) aix (c), shall exceed 1.0 mg/i of
phosphorus as P.; however, this sutsection (c) shall not apply:
1)
Where
the lake or reservoir on an annual basis exhibits a mean
hydraulic retention
time of 0.05 years (18 days) or less; or
2) Where effluent, if untreated for renoval of
phosphorus,
would
contribute less than
3 of the phosphorus loading of all
tributaries to such lake or reservoir, including non—point
sources.
e)~d)
For the purpose of this Section the term “lake or reservoirt’ shall
not include low level pools 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+ eomp~ancew~ththe
r~abiortsof
paragraph ~(-e+sha3~be eeh~evedby
thefo3~ow~ngde~es~
~ New sources sha~eoi~yon the effeeb4ve date of th4s
regtr3~obton7end
Q-~ B~isb4ngsources sha3~eon~3yby Becember ~
or such
other date as regtii~redby NPBES perm~~or as
ordered by the
Beard under P~b~+eVH~or P~He~I of
the P~eb~
q+
ee~~aneew~4ththe
nt4ba~b~4on~of
paragraph +d+ sha1~be
ach~evedby
Beeernber ~ ~98S’yor sueh ether date as
regu~redby NPBES permi*~or
as
ordered by the Beard under P4b3:e V~
er P~b~e~3(of the Ac~
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
2)
All other sources shall comply as required by NPDES
permit.
(SOURCE:
Amended at
_____
Ill. Req.
______________
effective
_______________)
IT IS SO ORDERED.
B. Forcade and J. T. Meyer dissented.
94—199
—16—
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control Board, hereby
certi y that the above Prc~osedOpinion~ndOrder was adopted on the
~
day
of
_____________,
1988, by a vote of
.~ —~
~
Dorothy M. Gu~h,Clerk
Illinois Po1~ütionControl Board
94—200
