IN THE MATTER OF:
PROPOSED AMENDMENTS TO:
PART 309 SUBPART A
-
)
35
Iii. Adm.
Code 309.105, 309.7, 309.8,
)
309.117, 309.119, 309.143, 309.147;
and
)
PROPOSED
35
Iii. Adm. Code 120 through
)
122
-
NPDES PERMITS AND PERMITTING)
PROCEDURES
)
NOTICE OF FILING
TO:
Dorothy
Gunn, Clerk
Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Mathew Dunn
Illinois Attorney General’s Office
Environmental Control Division
James R. Thompson Center
100 West Randolph Street
Chicago, IL 60601
Toby Frevert
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, IL 62702
See Attached Service List
Marie E. Tipsord
Illinois Environmental Protection Agency
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL 60601
Legal Service
Illinois Department ofNatural Resources
524 South Second Street
Springfield, IL 62701
PLEASE TAKE NOTICE today
that I have filed with the Clerk ofthe Illinois Pollution
Control Board Motion to File Written Testimony Instanter and Pre-Filed Testimony ofRoy
M. Harsch, a copy ofwhich is herewith
served upon you.
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Mf.\R
27 2003
)
)
)
R03-19
STATE OF IWNOIS
Pollution Control Board
Respectfully submitted,
Dated: March
27, 2003
Roy M. Harsch
Sheila H. Deely (ARDC No. 6236949)
Gardner Carton & Douglas, LLC
191 N. Wacker Drive
-
Suite 3700
Chicago, IL 60606-1698
Telephone: (312) 569-1000
THIS FILING IS SUBMITTED ON RECYCLED PAPER
IN THE MATTER OF:
PROPOSED AMENDMENTS TO:
PART 309 SUBPART A
-
)
35
Ill. Adm. Code 309.105, 309.7, 309.8,
)
309.117, 309.119, 309.143, 309.147; and
)
PROPOSED 35 Ill. Adm. Code 120 through
)
122
-
NPDES PERMITS AND PERMITTING)
PROCEDURES
)
MOTION TO FILE WRITTEN TESTIMONY INSTANTER
The Illinois Association ofWastewater Agencies (IAWA), by its attorneys Gardner
Carton & Douglas, moves to file its written testimony instanter. In support thereof, JAWA states
as follows:
1.
IAWA, represented by Roy Harsch ofGardner, Carton & Douglas, has members
that receive NPDES permits from the Illinois EPA, and the IAWA therefore has a strong interest
in the subject matter ofthis rulemaking.
2.
Counsel for JAWA was unable to file written testimony by March 26, 2003, as
required by the Board’s order, because of circumstances beyond its control. Counsel for IAWA
nonetheless worked diligently to ensure the delay in filing written testimony was minimal, and
conferred with the hearing officer about the delay on the date testimony was due.
3.
IAWA believes its participation in this rulemaking is important, moves the Board
to accept this written testimony.
c~v~p
BEFORE THE ILLINOIS POLLUTION CONTROL
BOAI~EgK’sOFFICE
MAR 27 2003
STATE OF IWNOIS
R03-19
Pollution Control Board
WHEREFORE, IAWA moves the Board to accept the written testimony of Roy M.
Harsch instanter.
Respectfully submitted,
One
~
ofAttorneys for Petitioner,,,’
Roy M. Harsch
Sheila H. Deely
Gardner Carton & Douglas LLC
191 N. Wacker Drive
—
Suite 3700
Chicago, IL 60606-1698
Telephone: (312) 569-1000
CHO2/2223691 8.1
C’ ERR’S OFFICE
MAR 2 7 2003
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE OF IWNOIS
iN
THE MATTER OF:
)
Pollution Control Board
)
PROPOSED AMENDMENTS TO:
)
R03-19
PART 309 SUBPART A
-
)
35 Ill. Adm. Code 309.105, 309.7, 309.8,
)
309.117, 309.119, 309.143, 309.147; and
)
PROPOSED 35 Ill. Adm. Code 120 through
)
122
-
NPDES PERMITS AND PERMITTING)
PROCEDURES
)
PRE-FILED TESTIMONY
OF ROY
M. HARSCH
My name is ROY M. HARSCH, I am a Principal in the law firm ofGardner, Carton &
Douglas LLC, who has been retained on behalfofthe Illinois Association of Wastewater
Agencies (IAWA) to represent it in this matter. As the Illinois Pollution Control Board (Board)
is aware, IAWA has a long and active history ofinvolvement before the Board in matters of
water pollution regulation. IAWA represents fifty-five sanitary districts and municipalities
located across the length ofIllinois. IAWA members are required to possess NPDES permits
regulating theirdischarges ofwastewater from their treatment plants and must obtain
authorizations to construct and revisions to NPDES permits as they have to expand their
treatment systems to treat the wastewater that is generated from new growth that occurs in their
service areas. As an association ofpublic agencies, IAWA has no fundamental objection to the
public’s right to provide public comment on NPDES permits and to request appropriate public
hearings to present public comments upon proposed NPDES permits.
Before proceeding with my testimony, I think it is important to provide some personal
background. I was the Administrative Assistant to Chairman Jake Dumelle from 1973 through
1975 when the Board had before it R73-l 1 and R73-12 which were the NPDES Permit
Proposals. I was the designated Hearing Officer in these consolidated regulatory proceedings
and I had the principle responsibility for drafting the final regulations, the Board’s Order that
was adopted on August 29 and September
5,
1974 and the Board’s Opinion dated December 5,
1974. After leaving the Board in the summer of
1975,
I moved to the United States
Environmental Protection Agency (U.S. EPA) where one ofmy assignments was to assist in the
negotiation ofthe delegation ofthe NPDES Permit Program from U.S. EPA to the State of
Illinois. I had a substantial role in the drafting ofthe final delegation agreement between U.S.
EPA and the State ofIllinois. I co-authored a Law Review article with Gail C. Ginsberg, the
former general counsel forRegion
5,
which describes the legal requirements for development of
an NPDES permit program and its delegation to a state as well as the steps that Illinois took to
implement its NPDES permit program, and the problems that it encountered in carrying out this
program. This Law Review article is found at 27 DePaul Law Review, 3 pages, 739 through 760
(Spring 1978). Given my involvement in the development ofthe Illinois NPDES regulations, the
1
delegation ofthe program to the State ofIllinois and the 25 years of private practice where I have
represented numerous clients before the Illinois Environmental Protection Agency (JEPA) in
NPDES permitting matters and the Board in NPDES permit appeals, I believe that I have ample
qualifications to provide insight to testif~’in this proceeding.
As previously stated, JAWA does not object to the public’s right to comment on proposed
NPDES permits. What IAWA objects to, is that the proponents in this proceeding have failed to
meet their burden to establish the reasons why the Board should enact this proposal. It has been
IAWA members’ experience, and that ofmy personal professional experience, that the
proponents of this regulation have availed themselves at every opportunity to comment on
proposed NPDES permits. Many ofthese comments include requests for public hearings which
are routinely granted by the IEPA. Thus, IAWA fails to see that under the existing regulations
that the proponents have not been afforded the opportunity to provide public comment on
NPDES permits, and requests for public hearings as required by the Clean Water Act.
I have chosen not to address the rules on a line by line, rule by rule basis because I
believe the proponents have totally and with arrogance ignored theirburden ofproviding a
justification for the amendments. Next, we have been informed that the IEPA, based upon the
statements of records by Toby Frevert, will be moving to amend the proposal to address those
provisions that the IEPA believes it is currently carrying out in practice. We understand that the
IEPA has met with the proponents with respect to this redrafling and we expect that we will
shortly be meeting with the IEPA to review its draft as well. We would expect that a third
hearing would be a distinct possibility unless the Board were to dismiss this proposal based upon
the lack ofsupport submitted by the proponents.
In essence the basis ofthis proposal is, namely, that the proponents lost an appeal ofthe
Black Beauty NPDES permit. What they are apparently really seeking in this proposal is to shift
the burden ofproofbefore the IEPA to make it essentially procedurally impossible forthe IEPA
to issue a permit that can withstand the procedural rigorsof an unending round ofpotential
appeals should they elect to pursue them. Second, the proponents seek to add to the arsenal of
procedural roadblocks ofunending public comment periods and requests for public hearings that
they currently employ when objecting to permits authorizing expansion ofpublicly owned
treatment works (“POTW”) to serve growth.
The same proponents of this proceeding have utilized the threat ofobjectionsta proposed
NPDES permits and requests for public hearings, as well as the actual public hearing process
itself, to negotiate monitoring requirements, effluent limitations, load restrictions, flow
diversions and other requirements not presently required by The Clean Water Act, the Illinois
Environmental Protection Act or existing Board regulations. This tactic has been most
successful when a POTW is faced with an urgent need to begin construction because ofnew
significant development in its service area. Thus the POTW dischargermust have a permit
issued which would accommodate growth. By in essence holding the permit hostage, these
environmental groups have attempted to extract concessions not required by existing regulations.
Upon reaching an agreement the public hearing request is withdrawn and IEPA is free to issue
2
the “agreed” upon permit. Given the demonstrated power ofthe proponents to extract such
concessions under the current NPDES permitting system, IAWA sees no need for the proposal
currently before the Board.
Mr. Ettinger testified at the first hearing that any relaxation in a permit condition would
require re-publication ofthe public notice and a new opportunity for the request ofa public
hearing, which under current IEPApolicy means an automatic grant ofthe public hearing
concerning the relaxation of the limitation. This simply means that we are in a never ending
process ofdelay for basically what amounts to delays sake in the issuance ofNPDES permits.
This is not acceptable and involves a substantial cost to the State ofIllinois at a time ofsevere
budget crisis, as well as a negative impact on the regulated community by delaying the
construction ofneeded new treatment facilities to accommodate growth. This will either lead to
the continued practice offorcing POTWs to negotiate with environmental groups and accede to
their demands for limitations not required by existing regulations in order to obtain withdrawal
ofrequests forpublic hearings or suffer the consequence ofthe delay.
Unfortunately, one tactic that has come out ofthis process is that we have had to advise
our POTW clients, in truly time sensitive projects, that upon the initial draft pre-public notice
stage, the POTW should request its own public hearing, thus, bypassing the initial publication
stage. This cuts approximately 60 to 90 days out ofthe cycle, knowing full well on many
NPDES projects that the same citizen groups that are proponents here, will be objecting to
permits and using the process to object to growth andlor to attempt to negotiate restrictive permit
conditions. This process has, ofcourse, greatly increased the costs ofpermitting for the
municipalities and sanitary districts. It also has had the impact oftying up substantial resources
at IEPA as it has to go through the public hearing process. The proposal that is presently on the
table before the Board would exacerbate this because any change or relaxation of any condition
would require a re-public notice and an opportunity for a second hearing request, and a third,
fourth and on and on.
IAWA objects to the proposal as it is currently drafted as being unnecessary, unsupported
and finally, unreasonable in that it will lead to an increase in the delay associated with necessary
NPDES permitting at a time when we currently have over 1,000 NPDES permits awaiting action
by the IEPA.
I would again caution as I did in my opening statement that the existing NPDES
regulations, including the public participation regulations that are at issue in this proceeding,
were the subject of substantial public debate and thought at the time ofthe original adoption by
the Board in R73-1 1 and 12. The difficulty facing the Board, then as now, is that the U.S. EPA
regulations and guidance to states for developing NPDES Permit Programs were written using
the U.S. EPA structure, not a structure that we have in Illinois, with two independent agencies as
a model. In large part, that is what was taken into consideration during the rewrite ofthe original
proposal that occurred early in 1974 by the Board This rewrite preserved the independent roles
of the IEPA and the Board. Some ofwhat has been proposed in this proceeding ignores these
separate roles. The current NPDES permitting system has served the State, public and regulated
3
community well for close to thirty years. There is no need to adopt the extraordinary proposal
significantly amending the current NPDES system when there has been no need shown on the
record by the proponents.
CHO2/22236660.1
4
CERTIFICATE OF SERVICE
The
undersigned
certifies that a copy ofthe
foregoing Notice of Filing
-
Motion to File
Written Testimony Instanter and Pre-Filed Testimony of Roy M. Harsch
were filed by hand
delivery with the Clerk ofthe Illinois Pollution Control Board and served upon the parties to whom said
Notice is directed by first class mail, postage prepaid, by depositing in the U.S. Mail at 191 North Wacker
Drive, Chicago, Illinois 60606 on Thursday, March 27, 2003.
Sheila H. Deely
CHO1/1228 1014.1
R03-19 Service List
Amendments to Part 309 Subpart A
W.C. Blanton
Blackwell Sanders Peper Martin, LLP
2300 Main
Suite 1000
Kansas City, MO 64108
James Daugherty
Thorn Creek Basin Sanitary District
700 West End Avenue
Chicago Heights, IL 60417
Albert Ettinger
Environmental Law & Policy Center
35
E. Wacker Drive
-
Suite 1300
Chicago, IL 60601
Lisa M. Frede
Chemical Industry Council
250 East Devon Ave., Suite 239
Des Plaines, Illinois 60018
James T. Harrington
Ross & Hardies
150 North MichiganAvenue
Suite 2500
Chicago, IL 60601
Katherine Hodge
lodge Dwyer Zeman
3150 Roland Avenue
Springfield, IL 62705
Larry Cox
Downers Grove Sanitary District
2710 Curtiss Street
Downers Grove, IL 60515
John Donahue
City ofGeneva
1800 South Street
Geneva, Illinois 60134
Susan M. Franzetti
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Dorothy Gunn, Clerk
Pollution Control Board
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
Ron Hill
Metropolitan Water Reclamation District
100 East Erie
Chicago, Illinois 60611
Fred L. Hubbard
415 North Gilbert Street
P0 Box
12
Danville, Illinois 61834-0012
Vicky McKinley
Evanston Environment Board
223 Grey Avenue
Evanston, Illinois 60202
Robert A. Messina
Illinois Environmental Regulatory Group
215 East Adams Street
Springfield, IL 62701
R02-19 Service List
Ammonia Nitrogen Standards
Irwin Polls
Metropolitan Water Reclamation District Of
Greater Chicago
R&D Laboratory
6001 West Pershing Rd.
Cicero, IL 60804
Michael G. Rosenberg
Metropolitan Water Reclamation District
100 East Erie Street
Chicago, Illinois 60611
Mary G. Sullivan
Illinois-American Water Company
300 North Water Works Drive
P0 Box
24040
Belleville, Illinois 62223-9040
Joel Sternstein
Assistant Attorney General
Environmental Bureau North
188 W. Randolph Street, 20th Floor
Chicago, Illinois 60601
Erika K. Powers
Barnes & Thornburg
10 South LaSalle, Suite 2600
Chicago, Illinois 60201
Sue A. Schulz
General & Associate Corporate Counsel
Illinois-American Water Company
300 N. Water Works Dr., P0 Box 24040
Belleville, Illinois 62223-9040
Sanjay Sofat
Connie Tonsor
Illinois Environmental Protection Agency
1021 N. Grand Ave., East
Springfield, Illinois 62794-9276
Charles Welsselhoft
Ross & Hardies
150 north Michigan
Chicago, Illinois 60601
CHO2/22236971 .1