BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

)

)

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 MOTION TO SUBSTITUTE COMMENTS

OF THE

ILLINOIS COAL

ASSOCIATION and COMMENTS

OF THE ILLINOIS COAL ASSOCIATION, copies of

which are herewith served upon you.

Fredric P. Andes

Counsel for Illinois Coal Association

Dated: March 27, 2003

Fredric P. Andes

Barnes & Thornburg

10

S. LaSalle Street, Suite 2600

Chicago, Illinois 60603

(312)214-1313

---

BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

)

)

PROPOSED AMENDMENTS TO:

)

R03-19

PUBLIC PARTICIPATION RULES IN 35

)

(NPDES Rulemaking)

ILL. ADM. CODE PART 309 NPDES

)

PERMITS AND PERMITTING

)

PROCEDURES

)

MOTION TO SUBSTITUTE

COMMENTS OF THE ILLINOIS COAL ASSOCIATION

The Illinois Coal Association hereby requests that, due to typographical errors, the

comments submitted to the Board on March 21, 2003

be withdrawn and replaced by the

corrected

comments, which are attached.

Respectfully submitted,

Fredric

P. Andes

Counsel for Indiana Coal Association

Dated:

March 27, 2003

Fredric P. Andes

Barnes &

Thornburg

10

S. LaSalle Street, Suite 2600

Chicago, Illinois 60603

(312) 214-1313

(Tills filing is submitted on

recycled paper as defined in 35 Iii. Adm.

Code

1O1.202.J

---

BEFORE THE

ILLINOIS

POLLUTION

CONTROL

BOARD

INTHEMATTEROF:

)

PROPOSED

AMENDMENTS

TO:

)

R03-19

PUBLIC

PARTICIPATION

RULES

IN

35

)

(NPDES Rulemaking)

ILL.

ADM.

CODE

PART 309

NPDES

)

PERMITS AND PERMITTING

)

PROCEDURES

)

OF THE

ILLINOIS

COAL ASSOCIATION

The

Illinois

Coal Association

(“ICA”) submits the following written comments on the

rulemaking proposal filed

in this docket by the Environmental

Law and

Policy Center of the

Midwest

and others

(collectively referred

to

as

the “Proponents”) proposing

revisions to the

Illinois

Pollution Control Board

(which agency is hereinafter referred

to

as the “Board”)

regulations codified

in 35

III. Adm.

Code

Part 309, which govern the issuance of permits under

the National

Pollution

Discharge Elimination System (‘NPDES”) by the Illinois

Environmental

Protection Agency (the “Agency”).

The

ICA

is

an

organization

formed

to

foster,

promote

and

defend

the

interests

of the

Illinois

Coal Association.

Our

members

include

active

producers

of

coal

and

owners of

coal

reserves.

Our

members’

miningahd

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

VVater

Act.

(“Statement

of

Reasons”

filed

January

13,

2003

by

Environmental

Law

and

Policy

Center of the

Midwest,

et

aL,

p.

1.

This document

is hereinafter

cited

as “Proponents’

Statement”).

The

ICA recognizes the importance

of

public participation

in

the NPDES permitting

process.

IThis filing is submitted on recycled paper as defined

in

35 Ill.

Adm.

Code

101.202.

---

However

the

ICA

is

concerned

that

the

effect

of

many

if

not

all

of

the

proposed

rule

revisions would

be to

increase

procedural

delays

in the NPDES

permitting

process. and

multiply

opportunities

for

opponents

of

projects

requiring

NPDES

permits

to

tie

up

those

permits

in

frivolous

procedural challenges.

The

ICA

is

also concerned

that one

of the

Proponents’ main

Objectives appears to

be to

reverse

interpretations of the

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) affd. 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

of

its

Part

309

regulations

somehow

proves

the necessity for

revisions

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 of NPDES

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 of NPDES

permits when “The public has not

had a fair opportunity to comment on all substantial terms of

the permit.”

2

---

The

proposed

revision

should

not

be

adopted.

While

the

ICA

does

not

dispute

the

importance

of

public

participation

in

NPDES

permitting,

existing

Part

309

regulations

already

provide

ample

opportunity

for

public

participation.

~

35

III.

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;

it

would

simply

add

an

additional

basis

for

challenging

a

permit

issued

by the Agency.

No

matter

now

ample the

opportunity for

public

comment

on

a

particular

NPDES

permit

may

have

been,

under

the

proposed

revision

a~

dissatisfied commenter could 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

could

be

unnecessarily

delayed by lengthy administrative appeals.

The

Proponents

may

be

correct

when

they

predict

that

not

many

permits

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

IEPA

fails

to

comply

with

the

public

participation

requirements

established

in

the

Board

rules.

That

protection

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

for

public

participation.

We

urge

that

the

Proponents’

proposed

new

subsection 309.1 05(f) not be

adopted.

3

---

Proposed New Subsection

309.105(g)

—

-

This proposed

subsection

would

prohibit the issuance of an

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

c~ecisionin’ 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

of

which

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.

(Se~,~

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

of

particular

concern

given

the

structure

of

40

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

of

Natural

Resources

(“IDNR”)

of

any

NPDES

permit

-

application

once

the

application

is

determined

to

be

complete,

unless

otherwise

agreed

in

a

4

---

memorandum

of

understanding

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

III.

Adm.

Code

309.108(c)

be

revised

to

elaborate

the

requirements

for

the statement

the Agency

is required

to

make

as

to

the

basis

of

the

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 the preparation

of a

proper administrative

record,

we

are

concerned

that

the proposal

is actually

intended

to

reverse

or circumvent

the

holdings~

of the

Board

and

Appellate

Court

in

the Prairie

Rivers Network

case that

a third

party

NPDES

permit appellants

have the burden of showing 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

of

the

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.

The

only

support

offered

by

the

Proponents

for

the

proposed

new

subsection

is

a

quotation from the USEPA NPDES

Permit Writers’ Manual.

(Proponents’

Statement,

p.

7).

The

Proponents

admit

that

the manual

“is

not strictly mandatory

on

sic

state

NPDES programs...”

(lb~i).The

manual actually carries the following discl~imer

on its

title

page:

5

---

“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 enforceable’ by 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 of specific site circumstances.

This

guidance may be 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

of the

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

the

manual

as

prescribing

the contents

of

the

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).

SECTION 309.109

Subsection 309.109(a)

—

Proponents propose a revision

of 35

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.

Proposed

Revision

of Subsection

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

of an

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

124.10(d)(v) requires that state NPDES permit

6

---

notices

provide all of the information which would

be

required

by their proposed

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 of the

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

1 23.25’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 of the 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

ICA would suggest that the

Board

not employ the

Proponents’ redrafted federal language.

The Proponents’ language would

require a description

of ‘procedures for the formulation

of final

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

-

if not 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

of final determinations.”

7

---

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

information 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

III. 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’

experience with

their own

NPDES

permits, the

ICA believes that the Agency already includes a

discussion

of facts and

questions considered

in its

fact sheets.

Proposed

Section 309i13(a)(5)

appears to

be

unnecessary.

The remaining proposed subdivisions would

require information

not 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 itselfto follow the guidance document.

We are again

concerned that the effect of the proposal

would be to

delay NPDES permitting

Proponents would renumber existing Section

309.1

13(a)(5)

as 309.1 13(a)(1O),

so that 309.1 13(a)(5)-(9) and —(11) in

Proponents’ proposed are new subdivisions.

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 of the specific proposed requirements appears in 40

CFR

Section

124.56.

.8

---

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

III.

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-dedision

public hearing.

Proponents

cite the NPDES

Permit Writers’

Manual

and the

need for a clear definition

of the content of the

administrative record

for purposes of appeal.

(Proponents’ Statement,

p.

9).

The

ICA submits that the Proponents’

rationale does

not support the proposed

language,

which would

require identification of the 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

procedural

regulations.

Even

if there were a

need for greater specificity

in this definition, the Proponents

offer

no justification for requiring identification

of this

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

III.

Adm.

Code 309.119.

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

III.

Adm.

Code 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.

Theproposal also includes a minor revision

to existing 35

Ill. Adm.

Code Section

309.1 13(a)(5)(A), which Proponents

would renumber as Section

309.113(a)(l0)(A).

The ICA has no comment on this revision.

~

The cited portion

ofthe NPDES Permit Writers’ Manual, paragraph 11.1.1, merelyrecommends that therecord be available

to thepublic.

9

---

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 their position by

the close of the 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

commenters.

The

public participation procedures provided

by the Board’s

Part 309 rules

provide the mechanism for

interested

members of the public to present their views and

any

pertinent facts on a proposed

permit to the Agency.

The permit applicant and the Agency,

however, are engaged

in an

ongoing

process,

which entails direct communication

regarding the

proposed

permit.

There is no justification for limiting issues

and

arguments which may be

raised

by a permit

applicaht 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

124~14is not

binding

on states (j.~)but

contend that the decisions

of the

Board

and of the Appellate Court

in the Prairie Rivers Network

case demonstrate

that these new provisions

are necessary to permit effective public

participation.

((bid,

at pp.

1 0-1 1).

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

10

---

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

~as 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

NPJJES permitting

process.

Proposed Section

309.121

is~xtremeIy

unclear as drafted,

and

would

create confusion

in permit reviews.

Both proposed sections would

lend themselves to

endless

rounds of

comment (or to disputes

in administrative appeals

as to

whether further

rounds of comment 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 of the final

permit.

(Proponents’ Statement,

p.

11).

The

(CA 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 IEPA 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.

11

---

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

III.

Adm. Code Section

105.212(b), which

specifies the content of the Agency’s administrative

record.

Proponents

do not argue that the

definition of the

record

in Section

105.212 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.

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 of water 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).

(IL~d.,

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

state programs.

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)(1), 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.

12

---

SECTION 309.146

Proposed

Revision

of Subsection 309.146(a)(2)

—

Proponents propose to revise subsection

309.146(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

USEPA

regulations but from the NPDES

Permit Writers’ Handbook.

(Proponents’ Statement,

p.

15).

Again the

ICA questions the wisdom of writing language from guidance documents

into

the Board’s Part 309 regulations.

This proposed

revision appears

to be another intended

to

augment the arsenal

of material available to

be

relied on byNPDES

permit opponents

in permit

appeals.

If this

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 of the problem.

In fact,

no such problem exists.

The

ICA urges that the proposal

revision

of subsection 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, which 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.”

“lt

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).

Existing subsection 309.146(a) begins with the phrase “TheAgency shall require

followed by a list

ofdependent clauses

containing the specificrequirements.

Theproposed revision would insert a complete sentence beginning “All

permits shall

specify...”

into the string ofclauses.

13

---

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 Companywith

a

condition that the

perrnittee submit a monitoring

plan for Agency approval

(rather than further delaying the permit

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 of the 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.

14’

---

We appreciate this

opportunity to

submit comments

on

the proposal.

Very truly yours,

Taylor Pensoneau

President

15

---

CERTIFICATE OF SERVICE

I, the undersigned,

certify that I have served the attached NOTICE OF FILlING,

MOTION TO SUBSTITUTE COMMENTS

OF THE ILLINOIS COAL ASSOCIATION and

COMMENTS

OF THE ILLINOIS COAL ASSOCIATION, by U.S. Mail (unless otherwise

noted), upon the persons included on the R03-19

Service List, below.

Dated:

March 27, 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

Thorn 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, IL

60431

Albert Ettinger

Environmental Law & Policy Center

35

B.

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. Michigan, Suite 2500

Chicago, IL 60601

Roy M. Harsch

Gardner,

Carton & Douglas

Quaker Tower, 321

N. Clark

Chicago, IL 606 10-4795

Ron Hill

Metropolitan Water Reclamation District

100 E. Erie

Chicago, IL 60611

---

Katherine Hodge

Hodge Dwyer Zeman

3150 Roland Avenue, P.O. Box 5776

Springfield, IL 62705-5776

Fred L.

Hubbard

Attorney At Law

415

North Gilbert Street, P.O. Box

12

Danville, Illinois 61834-0012

Illinois Department of Natural Resources

Office ofLegal Services

One Natural Resources Way

Springfield,

IL 62702-127 1

Gerald

T. Karr,~.

ssistant Attorney General

Office ofthe AttQrney General

Environmental Bureau

188 W.

Randolph,

20th

Floor

Chicago, IL 60601

Vicky McKinley

Evanston Environment Board

223 Grey Avenue

Evanston,

IL 60202

Robert A. Messina, General Counsel

Thomas G. Safley

Illinois Environmental Regulatory Group

215

East Adams Street

Springfield, IL 62701

Irwin Polls

Metropolitan Water Reclamation District

6001 West Pershing Road

Cicero, Illinois’ 60804

Michael G. Rosenberg

Metropolitan Water Reclamation District

100 East Erie Street

Chicago, IL 60611

Sue A.

Schulz

Mary

G. Sullivan

General & Associate Corporate Counsel

Illinois-American Water Company

300 North Water WorksDrive

Belleville,JL 62223

SanjayK. Sofat

Connie L. Tonsor

Illinois Environmental Protection Agency

1021 North Grand Ave. East

Springfield, IL

62794-9276

Joel

Stemstein

Assistant Attorney General

Environmental BureauNorth

188 West Randolph Street, 20~”

Floor

Chicago, IL 60601

,

Marie Tipsord (personal service)

Hearing Officer, Pollution Control Board

100 West Randolph, Suite 11-500

Chicago, IL 60601

2