CLERK’S
OrF!CE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARl~AR
2
G
2003
STATE OF ~WNOIS
IN THE MATTER OF:
)
Pollution
Control
Board
)
PROPOSED AMENDMENTS TO:
)
R03-19
PUBLIC PARTICIPATION RULES IN
35
)
(NPDES Rulemaking)
ILL. ADM. CODE PART 309 NPDES
)
PERMITS AND PERMITTING
)
PROCEDURES
)
NOTICE
OF FILING
To:
All persons named in the Certificate of Service
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe Pollution
Control Board the APPEARANCE and PREFILED TESTIMONY OF FREDRIC P. ANDES, on
behalfofthe Illinois Coal Association, copies of which are herewith served upon you.
Fredric P. Andes
Counsel for Illinois Coal Association
Dated: March
24, 2003
Fredric P. Andes
Barnes & Thomburg
10
S. LaSalle Street, Suite 2600
Chicago, Illinois 60603
(312)214-1313
•1.
*~
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARDCLERKS omC~
MAR
2~20O3
IN THE MATTER OF:
)
STATE OF IWNOIS
pollution
Control
Board
PROPOSED AMENDMENTS TO:
)
R03-19
PUBLIC PARTICIPATION RULES
IN 35
)
(NPDES Rulemaking)
ILL. ADM. CODE PART 309 NPDES
)
PERMITS AND PERMITTING
)
PROCEDURES
)
APPEARANCE OF FREDRIC P.
ANDES
I hereby file my appearance in this proceeding,
on behalf ofthe Illinois Coal Association.
Fredric P. Andes
Dated: March 24, 2003
Fredric P. Andes
Barnes & Thornburg
10
S. LaSalle Street, Suite 2600
Chicago, Illinois 60603
(312) 214-1313
CLER!~c’$
O~F1CE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDMAR
2
C
2003
IN
THE MATTER OF:
)
STATE OF IWNOIS
)
Pollution
control
Board
PROPOSED AMENDMENTS TO~:
)
R03-19
PUBLIC PARTICIPATION RULES IN 35
)
(NPDES Rulemaking)
ILL. ADM. CODE PART 309 NPDES
)
PERMITS AND PERMITTING
)
PROCEDURES
)
PREFILED TESTIMONY OF FREDRIC P.
ANDES
Myname
is Fredric P. Andes,
and I am an attorney representing the Illinois
Coal
Association (“ICA”).
The ICA is an Organization formed to
foster, promote and defend the interests ofthe
Illinois Coal Association.
Our members include active producers ofcoal and owners ofcoal
reserves.
Our members’ mining and reclamation operations are required to have NPDES permits
issued by the Agency under Part 309,
and those members would be affected by the proposed
-
revisions to
Part 309.
The Proponents indicate that the proposed rulemaking is intended to insure adequate
opportunities for public participation in the NPDES permitting process, and to insure compliance
with the federal Clean Water Act.
(“Statement of Reasons” filed January 13, 2003 by
Environmental Law and Policy Center ofthe Midwest, et al., p.
1.
This document is hereinafter
cited as “Proponents’
Statement”).
The ICA recognizes the importance ofpublic participation in
the NIPDES permitting process.
Howeverthe ICA is concerned that the effect ofmany if not all ofthe proposed rule
revisions would be to
increase procedural delays in the NPDES
permitting process and multiply
This
filing is submitted on recycled paper as defined in
35
III.
Adm. Code 101 .202.J
opportumties for opponents ofprojects requiring NPDES permits
to tie up those permits in
frivolous procedural challenges.
The ICA is also concerned that one ofthe Proponents’ main objectives appears to be to
reverse interpretations ofthe Part 309 regulations made by the Board in Prairie Rivers Network
v.
illinois Environmental Protection Agency and Black Beauty Coal Company, PCB 01-112
(August’ 9, 2002) aff’d. sub nom. Prairie Rivers Network v. Illinois Pollution Control Board;
Illinois Environmental Protection Agency; and Black Beauty Coal Company No. 4-01-0801
(October 24, 2002) (the “Prairie Rivers Network case”).
The Proponents appear to assume that
the fact that the Illinois Court of Appeals upheld the Board’s construction ofits Part 309
regulations
somehow proves the necessity forrevisions
to those regulations.
That is simply, not
the case.
As the Proponents acknowledge, “Illinois
currently normally affords the public an
opportunity to
comment on
all substantive provisions ofNPDES permits.”
Proponents’
Statement
at p. 4.
We believe that because the current public participation procedures provided
by the Board rules are sufficient to satisfy all state and federal requirements, the proposed
amendments should not be adopted.
Our comments
on the Proponents’ specific rulemaking proposals follow,
organized by
section.
SECTION 309.105
Proposed New Subsection 309.105(f)
Proponents would add a new subsection (f) to this section to
require denial ofNPDES
permits when “The public has not had a fair opportunity to
comment on all substantial
terms of
the permit.”
,
The proposed revision should not be adopted.
While the ICA does not dispute the
importance ofpublic participation in NPDES permitting,. existing Part 309 regulations already
2
provide ample opportunity forpublic participation.
~
35 Ill. Adm.
‘Code Sections 309.109,
309.110,
309.111, 309.115, 309.116.
The proposed revision would not enhance public
participation in the NPDES
permitting process; itwould simply add an
additional basis for
challenging a permit issued by the Agency.
‘No matternow ample the opportunity forpublic
comment on
a particular NPDES
pennit may have been, under the proposed revision a
dissatisfied commentercould always contend that he or she had been denied “fair opportunity to
comment.”
Because the standard set forth in the proposal is vague, such contentions would be
difficult to
evaluate and decide, with the result that NPDES permits
couldbe unnecessarily
delayed by lengthy administrative appeals.
The Proponents may be correct when they predict that not manypermits would be
overturned on appeal under their proposed language.
(Proponents’ Statement, p. 4).
The ICA
believes, however, that the proposal, if adopted, could result in many NPDES permits being
unnecessarily delayed by appeals based on this vague standard,.
“-
As
explained in greater detail in our following comments on the specific procedural
changes suggested by the Proponents, the ICA believes that the Board’s Part 309 regulations
already provide for ample public participation in the NPDES permitting process.
A permit
already may be challenged if EPA fails to comply with the public participation requirements
established in the Board rules.
Thatprotection is sufficient to ensure that no permit is issued
without providing the public with the required opportunity to comment.
The proposal stating
that permits may not be issued without a “fair opportunity to comment” is therefore unnecessary,
and simply injects a new, vague, and undefined term into the well-defined and established
procedures available forpublic participation. We urge that the Proponents’ proposed new
subsection
309.105(f) not be adopted.
3
Proposed New Subsection
309.105(g)
‘
-
This proposed subsection would prohibit the issuance ofan NPDES permit if the permit,
permit conditions, or the procedures followed in drafting or issuing the permit were inconsistent
“with any applicable federal law.”
Proponents claim that this language is necessary to correct an
error in the Illinois Appellate Court’s decision affirming ,the Board’s decision in the Prairie
Rivers Network case.
(Proponents’ Statement,
p.
5).
That is not the case.
In the Prairie Rivers
Network case, proponent Prairie Rivers Network did
argue that the Agency should have followed
various United States Environmental Protection Agency (“USEPA”) procedural regulations
(some ofwhich
are included in the proposed rules that proponent has now put forward)’.
The
Board correctly found those regulations not to be applicable to Illinois NPDES permitting.
~
~
Prairie Rivers Network v. Illinois Environmental Protection Agency and Black Beauty Coal
Company, PCB
01-112, August 9, 2001, slip
op. at
p.
19; Prairie Rivers Network v. Illinois
Protection Control Board, etal.,
No. 4-01-0801, October 24, 2002, slip
op. at pp.
17-18).
..-
The ICA believes that the proposed language would at best engender confusion over the
applicability of specific USEPA regulations to Illinois NPDES permitting.
This is ofpartiôular
concern given the structure of40 CFR Parts
122-124, which
contain some requirements
applicable to state permitting and others which,are not applicable.
We note that USEPA already.
has authority to
object to state NPDES permits under 40 CFR Section
123.44 when USEPA
believes that the permit would be inconsistent with federal law.
‘
The ICS submits that the Proponents’ proposed subsection 309.105(g) is
at best
unnecessary and
at worst could create confusion and delays in NPDES permitting.
SECTION 309.107
Proponents propose to add
a new subsection 309.107(c) which would require the Agency
to notify the Illinois Department ofNatural Resources (“IDNR”) ofany NIPDES permit
4
application once the application is determined to be
complete, unless otherwise agreed in a
memorandum ofunderstanding to
be reached between the Agency and IDNR.
The ICA believes
that this is a matter’best left to the Agency’s discretion.
We urge that the Board not adopt this
proposed rule.
SECTION 309.108
Proposed Revision of Subsection 309.108(c)
Proponents propose that
35 Ill.
Adm. Code 309.108(c) be revised to elaborate the
requirements for the statement the Agency is required to make as to the basis ofthe permit
conditions included in the draft permit.
The ICA has no comment on this proposed language.
Proposed New Subsection 309.108(e)
Proponents propose a new subsection 309.108(e) which would require the Agency to
prepare a “draft” administrative record on its
tentative decision to issue a permit
and would
require the record to demonstrate that any permitted discharge will not cause or contribute to the
violation of any applicable water quality standard.
While the ICA recognizes the importance of thepreparation ofa proper administrative
record, we are concerned that the proposal is actually intended to
reverse or circumvent the
holdings ofthe Board and Appellate Court in the Prairie Rivers Network case thal a third party
NPDES permit appellants have the burden ofshowing that the contested permit should ,not have
been issued.
The proposed language would shift the burden in permit appeals without
justification, through its mandate that the Agency’s administrative record must satisfy the
requirements ofthe proposed new subsection.
Moreover,
since the Agency is already obligated
to
maintain a record, including the documents submitted to
it by the applicant and third parties,
this
change is unnecessary.
S
5
The only support offered by the Proponents
for the proposed new subsection is a
quotation from the USEPA NPDES Permit Writers’ Manual.
(IProponents’ Statement,
p. 7).
The
Proponents admit that the manual “is not strictly mandatory on sic
state NPDES programs.
..“•
S
(Iki~J.
The manual actually carries the following disclaimer on its
title page:
S
“The statements in this document are intended solely as guidance.
This document is not intended, nor can it be relied on, to create any
rights enforceableby any party in litigation with the United States.
EPA and State officials may decide to follow the guidance
provided in this document, or to
act at variance with the guidance,
based on an
analysis ofspecific site circumstances.
This guidance
maybe revised without public notice to reflect changes in EPA’s
policy.”
By its terms, the manual is not even binding on USEPA itself.
Moreover, the quoted
language from Section
11.1.1 ofthe manual does not support the language Proponents would add
to
Section 309.108; nor do 40 CFR Sections
124.9 or 124.18, the USEPA regulations which are
cited in themanual
as prescribing the contents ofthe administrative record in a USEPA
permitting
action (these regulations
are not applicable to state programs).
The ICA urges the Board not to
adopt proposed 309.108(e).
5
‘
S
SECTION
309.109
Subsection 309.109(a)
Proponents propose a revision of35
Ill. Adm.
Code Section 309.109(a).
The proposed
revision is to
conform the language of this
subsection to substantive changes in the NPDES
permitting procedure which the Proponents would make in 35
Ill. Adm.
Code Sections 309.121
and 309.122.
The ICA opposes this
change as unnecessary because the proposed revisions to
Sections 309.121
and 309.122
should not be adopted, as discussed below in our comments on the
proposed revisions
to those sections.
6
Proposed Revision ofSubsection 309.109(b)
The ICA has no
comment on this proposed revision.
SECTION 309.110
Proponents propose that a new subsection 309.110(f) be added to this regulation, which
specifies the content of the public notice ofan NPDES permit application required to be given by
the Agency.
The Proponents’ proposed new subsection would require additional information.
The Proponents.state that 40 CFR Section
124.1 0(d)(v) requires that state NPDES permit notices
provide all ofthe information which would be required by theirproposed language.
The
Proponents allege that 40
CFR Section
123.125 requires the Board to
adopt “rules regarding
notice that are at least as stringent as the federally required language.”
(Proponents’ Statement,
p.
8).
‘
The ICA believes that the proposed new subsection is unnecessary and
could lead to
confusion.
The experience ofthe ICA’ s members in NPDES permitting is that the information
sought
to
be required by this proposed language is generally included in the Agency’s public
notices,
as the Proponents appear to
concede.
(Proponents’ Statement, p.
8).
The ICA does not
agree with the Proponents that 40 CFR Section 123.25 requires states to
adopt rules identical to
the state
—
applicable regulations in 40 CFR Part
124; the federal regulations requires that the
procedures followed by state NPDES authorities be the same or more stringent.
The Board’s
Part 309 rules were approved by USEPA even though they do not include language identical to
all ofthe voluminous state
—
applicable USEPA Part 124 regulations.
The proposed revisions are
therefore unnecessary to
achieve compliance with federal requirements.
If the Board should see merit in expressly incorporating the requirements of 40 CFR
Section
124.10(d)(v) into Part 309, the ICAwould
suggest that the Board not employ the
7
Proponents’ redrafted federal language.
The Proponents’ language would require a description
of “procedures for the formulation offinal determinations” where the federal regulation refers to
“comment procedures.”
Proponents’ language is much more vague than the relatively
straightforward federal language and appears well
suited
-
ifnot calculated
-
to
serve as a basis
for permit challenges based on alleged public notice deficiencies.
The ICA urges that the Board not adopt the Proponents’ proposed subsection 309.110(f),
but also urges that if the Board does adopt the proposal, the Board should
substitute the phrase
“comment procedures” for “procedures for the formulation offinal determinations.”
SECTION 309.112
The Proponents propose to
amend this section to add references to Sections 309.121
and
309.122.
This proposed revision is
to accommodate changes proposed to the former section and
the proposed adoption of a new section.
The ICA believes
that the revision proposed for this
section is unnecessary because the substantive changes should not be made for the reasons
set..-
forth in
our comments
on those sections.
-
SECTION
309.113
.
Proponents propose that subsection 309.113(a) be amended to add six new subdivisions
with additional i’nformation which the Agency would be required to include in its
fact sheet
required for certain NPDES permits.
Proposed new subdivision
(a)(5)1
is
a paraphrase of language from 40
CFR Section
124.8(a).
As noted above in our comments on the proposed revisions to 35
111. Adm.
Code
Section 309.110, states are required to follow the procedures set forth in the federal.rule, not
incorporate identical language in their own NPDES regulations.
Based on our members’
Proponents would
renumber existing Section
309.1
13(a)(5)
as 309.113(a)(1O), so that 309.1
13(a)(5)-(9)
and
—(11) in
Proponents’
proposed arenew subdivisions.
8
experience with theirown NPDES permits, the ICA believes that the Agency
already includes a
discussion of facts and questions considered in its fact sheets.
Proposed Section 309.1
13(a)(5)
appears to be unnecessary.
The remaining proposed subdivisions would require information~
required by any
federal regulation,2 but are taken from the NPDES Permit Writers Manual.
As discussed above,
this manual is a guidance document, not binding on USEPA
or on the state NPDES
authorities.
The ICA questions why the Agency should be bound to
follow USEPA guidance
as a legal
requirement when USEPA has not even seen fit to bind itself to
follow the guidance document.
We are again concerned that the effect ofthe proposal would be to
delay NIPDES permitting
procedures and to
provide technical
grounds for objections to permits.
The ICA urges that the
new subdivisions proposed to be added to
Section 309.113(a) not be adopted.3
SECTION 309.117
Proponents propose to
add a sentence to 35 Ill. Adm. Code Section 309.117 requiring the
Agency “or the permit
applicant” to identify the “documents or other materials referred to or
relied on.
.
.to
support the tentative decision.
.
.“
at the pre-decision public hearing.
Proponents
cite the NPDES Permit Writers’ Manual and the need for a clear definition ofthe content ofthe
administrative record for purposes ofappeal.
(Proponents’ Statement,
p.
9).
The ICA submits that the Proponents’ rationale does not support the proposed language,
which would require identification ofthe administrative record at a pre-decisional public
hearing.
As explained below in the ICA’s comments on proposed Section 309.123, the
administrative record in Agency permitting decisions is already defined by existing Board
2
Proponents state that the additional information requirements are “necessary...to
comply with 40
CFR Section
124.56”
(Proponents’. Statement,
p. 8) but do not explain why.
None ofthe specific proposed requirements appears in 40 CFR
Section
124.56.
‘
-
The
proposal also includes aminor revision to existing 35
Ill. Adm. Code Section 309.11 3(a)(5)(A), whichProponents
would renumber as Section 309.113(a)(10)(A).
TheICA has no
comment on
this revision.
9
procedural regulations.
Even if there were a need for greater specificity in this defmition, the
Proponents offer no justification for requiring identification ofthis record at a pre-decisional
public
hearing.4
The ICA urges that the proposed revision to Section 309.117 not be adopted.
-
SECTION 309.119
Proponents propose a revision of 35
Ill. Adm. Code 309.119.
The proposed revisionis to
conform the language ofthis subsection to substantive changes in the NPDES permitting
procedure which’the Proponents would make in 35
Ill. Adm. Code 309.121
and 309.122.
The
ICA opposes
this change as unnecessary.because theproposed revisions
to
Sections 309.121
and
309.122 should not be adopted, as discussedbelow in .our comments on the proposed revisions to
those sections.
‘
SECTION 309.120
Proponents propose a new Section 309.120 which would require both public
commenter
and permit applicants to
“raise all reasonably ascertainable issues and submit all reasonably
‘--
available
arguments supporting theirposition by the close ofthe public comment period.
.
Proponents cite 40
CFR Section
124.13, which they concede is not binding on states, as support
for this proposal,
and state that “There is no
excuse for failing to present arguments to Illinois
EPA during the comment period.”
(Proponents’ Statement, pp.
9-10).
The ICA has no objection
to the proposal except to the extent that it would apply to permit applicants.
We believe that the
proposal ignores the fundamental difference between permit applicants and public comrn’enters.
Thepublic participation procedures provided ‘by the Board’s Part 309 rules provide the
mechanism for interested members ofthe public
to present theirviews and any pertinent facts on
a proposedpermit to
the Agency.
The permit applicant and the Agency, however,
are engaged
“
The cited portion
of the NPDES Permit Writers’ Manu~i,
paragraph 11.1.1, merely recommends that the recordbe available
to
the public.
10
in
an ongoing process, which entails direct communication regarding the proposed permit.
There
is no justification for limiting issues and arguments which maybe raised by a permit applicant to
those raised in the public comment period.
The ICA urges that if the proposed section is
-
adopted, references to “the applicant” be deleted.
-
SECTION 309.121; SECTION 309.122
Proponents propose two new sections for reopening the public comment period.
Proponents state that proposed Section 309.121
is based on 40 CFR Section
124.13(a)
and that
proposed Section 309.122 is based on 40 CFR Section 124.14(b).
(Proponents’ Statement, p.
10):
Proponents
concede that 40 CFR Section 124.14
is not binding on states
(~~)
but contend
that the decisions of the Board and ofthe Appellate Court in the Prairie Rivers Network case
demonstrate that these new provisions are necessary to permit effective public participation.
(IIkjcI,atpp.
10-11).
The ICA submits that the Board’s own decision in the Prairie Rivers Network undercuts
the Proponents’ argument.
The Board did not find, as the Proponents assume, that Prairie Rivers
Network should have had
additional opportunity to comment, but that the Board’s Part 309
regulations precluded Prairie Rivers Network from further comment.
The Board actually found
that under the existing Part 309 regulations, Prairie Rivers Network failed to
show that it was not
afforded a meaningful opportunity to participate in the permitting process.
Prairie Rivers
-
Network v. EPA and Black Beauty Coal
Company, PCB 01-112 (August 9, 2002) slip op.
at p.
19.
The ICA urges that the proposed new sections not be adopted.
Neither proposed section
is necessary, and the ICA is
concerned that they could cause substantial
delays in the NPDES
permitting process.
Proposed Section 309.121
is extremely unclear as drafted, and would create
confusion in permit reviews.
Both proposed sections would lend themselves to
endless rounds of
11
comment (or to disputes in administrative appeals as to whether further rounds ofcomment
should have been allowed).
The Proponents suggest a far-fetched hypothetical situation in which
“effluent limits or critical monitoring” requirements are deleted from a draft permit prior to
issuance ofthe final permit.
(Proponents’ Statement,
p.
11).
The ICA submits
that the more
likely scenario is one in which the Agency makes revisions to
a draft permit in an effort to
address commenters’ concerns,
and the commenters submit additional comments which dismiss
the Agency’s efforts as insufficient.
It is important to keep in mind
that EPA
is already
required to notify stakeholders if significant changes are made, and that if they object to these
changes, an appeal
is the proper
avenue for redress.
The agency has to balance the interest in
obtaining opportunity to
comment with the interest in obtaining timely permit decisions to
ensure
economic stability, by allowing dischargers to continue
existing operations and to modify or
expand those operations without undue disruptions or uncertainty.
The existing regulations have
achieved the necessary balance while complying with all state and federal requirements,
and
-
‘
should not be disturbed.
-
SECTION 309.123
-
Proponents propose a new Section 309.123 to
define “record before the Agency.”
Proponents state that this proposal is intended to prevent confusion in appeal hearings.
(Proponents’ Statement,
p.
14).
‘
The Board already has a regulation, 35 Ill.
Adm.
Code Section
105.212(b), which
specifies the content ofthe Agency’s administrative record.
Proponents do not argue that the
-
definition ofthe’record
in Section 105.2 12
is deficient; they simply ignore the rule and propose a
new rule.
This revision is unnecessary and the ICA recommends that it not be
adopted.
12
.
SECTION 309.143
Proponents propose that a new subsection 309.143(a) be added to require “that effluent
limitations in NPDES
permits control all pollutants sufficiently such that sic
the discharge does
not cause or contribute to a violation ofwater quality standards including narrative standards.”
(Proponents’ Statement,
p.
14).
Proponents argue that this language must be added to the
Board’s Part 309 regulations because it appears in 40 CFR Section 122.44(d)(l)(i).
~
p.
15).
As
noted above in our comments
on the.proposed revision to 35
Ill.
Adm.
Code Section
309.110, Illinois is not required to
adopt language identical to the USEPA regulations even
where the regulations are applicable to stateprograms.
The Proponents implicitly concede this
by proposing to incorporate only one paragraph of subsection 122.44(d), perhaps
10
of the
total content of the federal subsection.
Proponents do not make any attempt
to
explain why existing
35
Ill. Adm.
Code Section
309.141(d)(l), which requires NPDES permits to contain “any
more stringent
..
limitation.
.
.necessary to meet water quality standards.
. .“
does not adequately address the
relationship between NPDES
permit effluent limitations and water quality standards.
Their
proposal appears to
be an effort to select language from the USEPA rules which permit
opponents might find useful in future permit appeals.
They have failed to justify their proposal
to add
a new subsection 309.143(a) and the ICA urges that it not be adopted.
S
-
-‘
SECTION 309.146
Proposed Revision ofSubsection 309.146(a)(2)
Proponents propose to revise subsection 309.l46(a)(2) by adding language providing that
the reports required from NPDES permittees shall be
adequate to determine compliance with
permit conditions.
Proponents acknowledge that this language is not taken from TJSEPA
regulations but from the NPDES Permit Writers’ Handbook~(Proponents’ Statement,
p.
15).
13
Again the ICA questions the wisdom ofwriting language
from guidance documents into
the Board’s Part 309 regulations.
This proposed revision appears to
be another intended to
augment the arsenal ofmaterial available to be relied on by NPDES permit opponents in permit
appeals.
Ifthis proposal is actually intended to remedy any real problem under existing NPDES
permitting procedures, the Proponents have failed to provide any information documenting the
existence ofthe problem.
In fact, no such problem exists.
The ICA urges that the proposal
revision ofsubsection 309.146(a)(2) not be adopted.
Proposed Revision’ Subsection 309.146(a) —New
309.146(a)(5)
Proponents propose that a new subdivision
(5)
be added to subsection 309.146(a)
and that
existing
309.146(a)(5)
be renumbered.
The new subdivision would
contain language from 40
CFR Section 122.48, whch the Proponents contend is required to satisfy federal requirements.
(Proponents’
Statement,
p.
15).
Viewed on its
face, the proposed new language seems to
duplicate existing requirements
--
of subsection (a) in an awkward5 and redundant manner.
Proponents explain, however, that the
revision is necessary to correct “confusion.”
“It
has sometimes by sic
‘seen as acceptable to
issue
a permit without all of the.key monitoring terms in the permit..
.“
(Proponents’ Statement,
pp.
15-16).
The “confusion” to which the Proponents refer is presumably the Board’s decision in the
Prairie Rivers Network case.
Proponent Prairie Rivers Network argued that the Agency should
not have issued an NPDES permit to Black Beauty Coal Company with a condition’ that the
permittee submit a monitoring plan for Agency approval (rather than further delaying the permit
~
Existing subsection 309.146(a) begins with the phrase “The Agency shall require...” followed by a list ofdependent clauses
containing the specificrequirements.
Theproposedrevision would inserta completesentence beginning “All permits shall
specify
into the string ofclauses.
14
and seeking public comment on the monitoring plan).
The Board rejected Prairie Rivers
Network’s argument.
Assuming that Proponents are attempting to overrule this portion ofthe Board’s Prairie
Rivers Network decision sub silentio, the ICA submits that the proposed language would not
necessarily have this effect.
Nothing in the federal rule copied in this proposed language
‘prohibits what the Agency did in the Prairie Rivers Network case, which was entirely
appropriate.
The proposed language would merely make Section 309.146
longer and more
confusing, and perhaps provide permit opponents with more opportunities to utilize permit
appeals to delay or prevent important projects from occurring.
The existing rules are fully
sufficient to comply with applicable requirements, so ICA urges that this proposal not be
adopted.
CONCLUSION
The Proponents’ rulemaking proposal would not improve opportunities for effective
public participation in
Illinois NPDES
permitting.
The proposal instead would create additional
paperwork and procedural requirements, and multiply opportunities for diehard opponents of
projects requiring NPDES permits to delay those permits through unfounded administrative
appeals.
The ICA urges the Board not to
adopt the proposal.
Respectfully submitted,
Fredric P. Andes
Counsel for Indiana Coal Association
Dated:
March 24, 2003
Fredric P. Andes
-
Barnes
& Thornburg
-
10
5. LaSalle Street, Suite 2600
Chicago, Illinois
60603
.
(312)214-1313
15
..
S
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached NOTICE OF FILING,
APPEARANCE OF FREDRIC P. ANDES, and PREFILED TESTIMONY OF FREDRIC P.
ANDES, by U.S.
Mail, upon the persons included on the R03-19 Service List, below.
Dated:
March
25,
2003
R03-19 Service List
W.C. Blanton
Blackwell Sanders Peper Martin, LLP
2300 Main, Suite
1000
Kansas City, MO 64108
Larry Cox
Downers Grove Sanitary District
2710 Curtiss
Street
Downers Grove, IL
60515
James L. Daugherty, District Manager
Thom Creek Basin Sanitary District
700
West End Avenue
Chicago Heights, IL 60411
John Donahue
City ofGeneva
1800 South Street
Geneva, IL 60134
Dennis L. Duffield, Director.
Department ofPublic Works and Utilities
City ofJoliet
921
E. Washington Street
Joliet,
IlL 60431
AlbertEttinger
Environmental Law & Policy Center
35 E. Wacker Drive,
Suite 1300
Chicago, IL 60601-2110
Susan M. Franzetti
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, IL 60606
Lisa M. Frede
Chemical Industry Council
9801
W. Higgens Rd, Suite
515
Rosemont, IL 60018
Dorothy Gunn, Clerk (personal service)
Illinois Pollution Control Board
100W. Randolph, Suite 11-500
Chicago, IL 60601
James T. Harrington
Ross & Hardies
150 N. Michigai~,Suite 2500
Chicago, IL 60601
Roy M. Harsch
Gardner, Carton & Douglas
Quaker Tower,
321
N. Clark
Chicago, IL 60610-4795
Ron Hill
Metropolitan Water Reclamation District
100E.Erie
S
Chicago, IL 60611,
frwin Polls
.1
Katherine Hodge
Hodge DwyerZeman
3150 Roland Avenue,
P.O. Box5776
Springfield, IL 62705-5776
Fred L.
Hubbard
Attorney At
Law
415 North Gilbert Street, P.O. Box
12
Danville, Illinois 61834-0012
Illinois Department ofNatural Resources
Office ofLegal Services
One Natural Resources Way
Springfield, IL 62702-1271
Gerald T. Karr, Assistant Attorney General
Qffice ofthe Attorney General
Environmental Bureau
188 W. Randolph,
20th
Floor
Chicago, IL 60601
Vicky McKinley
-
EvanstonEnvironment Board
223 GreyAvenue
Evanston, IL 60202’
Robert
A-.
Messina, General Counsel
Thomas
G. Safley
Illinois Environmental Regulatory Group
215 East Adams Street
Springfield, IL 62701
2
Metropolitan Water Reclamation District
6001 .West Pershing Road
Cicero, Illinois 60804
Michael G. Rosenberg
Metropolitan Water Reclamation District
100 East Eri~
Street
-
Chicago, IL6O611
Sue A. Schulz
-
Mary G. Sullivan
-
General
&‘
Associate Corporate Counsel
Illinois-American Water Company
300 North Water Works Drive
Belleville, IL 62223
SanjayK. Sofat
Connie L. Tonsor
Illinois ‘Environmental Protection Agency
1021 North Grand Ave. East
Springfield, IL 62794-9276
Joel Sternstein
Assistant Attorney General
Environmental Bureau North
188 West Randolph Street,
20th
Floor
‘
Chicago, IL 60601
-
Marie Tipsord (personal service)
Hearing Officer, Pollution Control Board
1QO West Randolph, Suite
11-500
Chicago, IL 60601
