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PIN

13

ILLINOIS POLLUTI

N CONTROL

BOARD

L

STAlE

OF

ILLINOIS

Pollution

Control Board

IN THE MATTER OF:

PROPOSED AMENDMENTS TO:

PART

309 SUBPART A

-

35

Ill.

Adm Code

309.105, 309.7,

309.8,

309.9,

309.10,

309.12,

309.13,

309.14,

309.117, 309.119, 309.143, 309.147; and

PROPOSED

35

Ill.Adm, Code

120

through

122

-

NPDES PERMITS AND

PERMITTING PROCEDURES

NOTICE OF FILING

PLEASE TAKE NOTICE that the Environmental Law

and Policy Center of the Midwest,

Illinois Chapter of the Sierra Club, Prairie Rivers Network and the 225

persons whose signatures

are included

with the petition, hereby petition the Illinois Pollution Control Board

to amend

Illinois Administrative Code Title 35

Environmental Protection Act; Subtitle C: Water Pollution;

Chapter I:

Pollution Control Board; Part

309 subpart A.

Petitioners are today filing:

-

The language ofthe proposed rules and rule amendments;

-

A statement of reasons supporting the proposed rules

and rule changes together

with 4 exhibits (A-D) to the statement;

-

A synopsis ofthe testimony to be presented by the proponents

at the hearing

consisting of the pre-filed testimony of Cynthia Skrukrud Ph.D., Beth Wentzel

and Albert Ettinger;

I

---

-

A petition signed by at least 200 persons

-

Proofofservice of the original and 9 copies on the Clerk

and one copy

each with

the Attorney General, the Illinois Environmental Protection Agency and the

Illinois Department ofNatural Resources.

The pre-filed testimony ofAlbert Ettinger includes a written statement that the proposal

amends the most recent version ofthe rule as published on the Board’s Web site.

Albert F. Ettinger (ARØ~

# 3125045)

Counselfor EnvironmentalLaw

& Policy

Center,

Prairie Rivers Network and Sierra

Club

Environmental Law& Policy Center

35

E.

WackerDr. Suite

1300

Chicago, Illinois 60601-2110

312 795

3707

January 13, 2003

2

---

SectIon

309.105

Authority to Deny NPDES Permits

No

NPDES

Permitmaybe

issued

in any case

in

which:

a)

The

permit

would authorize the discharge of a radiological,

chemical or

biological

warfare

agent or high-level radioactive waste;

b)

The

discharge would,

in

thejudgment of the

Secretary

of the

Army

acting

through the Chief of Engineers, result in the substantial

impairment of anchorage

and

navigation;

c)

The proposed

permit

is objected to in

writing

by the Administrator of the

U.S.

Environmental Protection Agency pursuant to

any

right to object

given to the

Administrator

under

Section

402(d) of the CWA;

d)

The

permit

would

authorize a discharge from a point source which is in

conflict with a plan approved under Section 208(b) of the CWA; or

e)

The applicant

has

not provided proof to the Agency

that

he will meet any

schedule of compliance which

may

be established, in

accordance

with the

Act and

regulations,

as a

condition

of

his

permit.

The public has not

had

a

fair opportunity

to comment on

all

substantial

terms of the

permit,

The nermit.

nermit conditions or nr~eduresused to

draft or issue

the

permit

are not

consistent with

any

anvlicable federal

law.

SectIon 309.107

DIstribution

of

Applications

When

the Agency

determines that

an application for an

NPDES

Permit

is

complete,

it

a)

Unless otherwise agreed, send a copy of the application to the District

Engineer of the appropriate district of the U.S.

Corps of Engineers with

a letter requesting

that

the District

Engineer

provide, within 30 days or

as otherwise

stated

in the Agency’s later,

his

evaluation of the impact of

the discharge on anchorage and navigation.

If the District

Engineer

responds that

anchorage

and

navijtionof

any

of the naviEation waters

tWould

be substantially

inj~iairS

by die grintin~

of a

permit,

the

permit

~:J?iuc.

~i!UiiWfflbedenled

and theAgeiic~slia1lnotlf~thè

applicant.

If the District

g)

---

Engineer informs the Agency that the imposition of specified conditions

upon the NPDES Permit is necessary to avoid any substantial impairment

ofany of the navigable waters,

the Agency shall

include

in

the permit

those conditions

specified by the District Engineer.

b)

Send two

copies of the application

to

the Regional Administrator of the

U.S..

Environmental Protection Agency with a letter stating that the

application is complete.

c)

Subject

o any memorandum of agreement between the Agency

and

the

Illinois Department of Natural Resources (IDNR).

notify the IDNR.

Section 309.108

Tentative Determination and Draft Permit

Following the receipt of a complete

application for an NPDES Permit, the Agency

shall

prepare

a tentative determination.

Such determination shall include at least the

following:

a)

A Statement regarding whether an NPDES Permit is to be issued or

denied;

~jgj

b)

If the determination is to issue the permit, a draft permit containing:

1)

Proposed effluent limitations, consistent with

federal and state

requirements;

2)

A proposed schedule of compliance,

if the applicant

is not in

compliance with applicable requirements,

including

interim dates

and requirements consistent with the CWA

and applicable

regulations,

for meeting the proposed

effluent limitations;

3)

A briefdescription ofanyotherprppQ~çd

special

conditions

which will have a significant impact upon the discharge.

.*~.,

~

~

c)

A siàtement ofthe basis for each of the permit conditions listed in Section

309.108(b), including a description of how the conditions of the draft

pcnnit were derived as well

as the statutory or rcgulatory provisions and

appropriate supporting references.

ci)

.

Upon tentative determination to issue or deny

an NPDES

Permit:

1)

If the determination is to

issue the

permit the Agency

shall notify

II’

thea~phcantlnwrthngofthecontent9ftheteatative

U

~

determsnationanddiaftpermitandpfits mtent1tocirculate public

---

notice of issuance

in accordance with Sections

309.108 through

309.112;

2)

If the determination is to deny the permit,

the Agency shall notify

the applicant in writing of the tentative determination and of its

intent to circulate public notice of denial,

in accordance with

Sections 309.108 through 309.112.

In the case of denial,

notice

to the applicant

shall

include a statement of the reasons for denial,

as required by

Section 39(a) of the Act.

e)

In support of its tentative decision

to

issue or deny

an

NPDES

permit

the

Agency shall prepare

p

draft administrative record

containing the basis

for the allowances or disallowances of each proposed

discharge and

which:

1)

Shows

that any discharge

to be

permitted

will

not cause or contribute

to

the violation of any applicable numeric or narrative

water quality

standard.

2)

Shows the basis

for each

limit

and special

condition in the permit.

3)

Shows the method(s)

by which each limit or special condition of the

permit will

be

monitored

for

compliance.

Section 309.109

Public Notice

a)

Upon tentative determination to issue

or deny an NPDES Permit,

completion of the draft permit, if any. or re-notice of a substantively

changed draft permit,

and not earlier than 10 days following notice to the

applicant pursuant to Section 309.108(d), the Agency shall circulate

public notice of the completed application for an NPDES Permit in a

maimer designed to

inform interested

and potentially interested persons

of the discharge or proposed discharge and

of

the proposed

determination to issue or deny an NPDES Permit for the discharge or

proposed discharge.

Procedures

for the

circulation

of public

notice shall

include at least the following concurrent actions:

1)

Notice shall be milled to the applicant;

2)

Notice shall be circulated within the geographical area ofthe

proposed discharge;

such circulation may include

any or all of the

following:

A)

Posting

in the post office and public places of the

municipality nearest the premises of the applicant in which

the effluent source is located;

.,...1~

~~).tJrk..Y.S

.

~

~

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---

B)

Posting

near

the entrance to

the applicant’s premises and

in

nearby

places;

C)

Publishing

in

local

newspapers and

periodicals, or, if

appropriate,, in a daily

newspaper of general circulation;

and

D)

Any

other notice

requirements

necessary

to meet the

requirements of the Act

and

the CWA;

3)

Notice shall be

mailed to

any

person or

group

upon request;

4)

The Agency shall add

the

name

of

any person or group

upon

request to a mailing list to receive

copies of notices for all

NPDES

applications

within the State of Illinois or within a certain

geographical area.

b)

The Agency shall provide a period of not less than

30 days

following the

date of first publication of the public

notice during which time interested

persons may

submit their written views on the

tentative determinations

with respect to the

NPDES

application.

All comments shall be submitted

to the Agency

and to the applicant.

All written comments submitted

during the 30 day comment period shall be

retained by the Agency and

considered in the formulation of its final determinations

with

respect to

the NPDES

application.

The

period

for comment

may be extended at

the

discretion of the Agency

by publication as provided

in Section 309.109.

(Source:

Amended

at 2

Ill.

Reg. no.

16, page 20, effective

April 20,

1978.)

Section 309.110

Contents of Public

Notice

of Application

.

.

~:.r,.rl,..1.

‘7?’~

The

contents

of public

notice,

of appiicafiops.fçr,~1P

DES

units

~hallin

lude

at least

the

following:

‘

.

:;~t~aC’~,

4~fl~5~ç

a)

Name,

address,

and

b)

Name and address of the applicant;

c)

Brief description of the

applicant’s activities or operations which result

in the discharge described

in the NPDES application (e.g.,

municipal

waste treatment plant,

steel

manufacturing,

drainage from

mine

,.,acti’vi4es);

.

,

~

~

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Li!

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J,.i

jUO~~

11L~I!,1Ih

~i

d)

Name, if any, of the waterway

to which the discharge is made and a

short description of the location of the discharge

indicating

whether it is

---

a new or an existing

discharge

including

the latitude

and longitude of the

outfalls as well as the river

mile ofthe outfall;

e)

A statement of the tentative

determination to issue ordeny anNPDES

Permit for the discharge described in

the application;

A

bricidcscription

of the

nrocedures

for

the

formulation of final

determinations. including.:

(1)

The bcainniniz and ending dates of the comment

period and

the

address where comments

will

be received;

Procedures

for requesting

a hearing and the nature of that hearing;

(2)

and

(3)

Any other procedures bY which the public may participate in the

fiuial

decision.

g)

Address and telephone number ofAgency premises at which

interested

persons

may obtain further information, request a copy

of the

fact sheet,

and

inspect and copy NPDES forms

and

related documents.

Section 309.112

Agency Action

After Comment Period

Subject to Sections

309.121

and 309.122,

if,

after the comment period provided, no

public hearing is held with respect to the permit,

the Agency

shall,

after evaluation of

any comments which may have

been received,

either issue or deny the

permit.

(Source:

Amended at 2 Ill.

Reg.

no.

16,

page 20,

effective April 20, 1978.)

Section

309.113

Fact Sheets

a)

For every

discharge

which has a

total volume of mote than 500,000

gallons

(1.9

megaliters)

oh any thy of the

year, the Agency shall prepare

and,

following public

notice,

shall send upon

request

to any person

a fact

sheet with

respect

to the

application described in the public notice. The

contents ofsuch fact

sheets

shall

include at

least

the following

information:

1)

A

sketch or dethiled description of the

location

of the

discharge

described in the application;

---

2)

A

quantitative description ofthe proposed discharge described in

the application which

includes at least the following:

A)

The rate or frequency of the proposed

discharge; ifthe

discharge is continuous, the average daily flow;

B)

For

thermal discharges subject to limitation under the Act,

the average

monthly temperatures

for the discharge;

C)

The

average daily mass discharged

and average

concentration in milligrams

per liter, or other applicable

units of measurement, of any contaminants which are

present

in significant quantities or which are subject to

limitations or prohibitions under applicable provisions of

the CWA or the Act or regulations

adopted thereunder;

3)

The tentative determinations required under

Section 309.108;

4)

A brief citation,

including an identification of the uses for which the

receiving waters have been classified, of the water quality standards

and effluent standards

and limitations

applicable

to the proposed

discharge;

5)

A brief description of

the

significant factual,

legal,

methodological

and policy

Questions considered

in preparing the draft pennit;

6)

Flow of the

receiving waters

in the penflit and

permit

fact

sheet,

including 701010w

flow:

7)

A description of

the

mixing zone, or the dilution

factor

used

to

calculate allowed mixing, pursuant to

~302.l02

8) in

the. case

of. modified and

reissued

ocrmjts.

a summary

of changes

..~,between

the public noticed permit and the previous

m~miit

o~rc5L1

9)

Summary of the Agency’s antidegradation analysis and

characterization of the receiving

waters including

the existing

uses of

the receiving

waters:

10) A more detailed description of the procedures for the formulation of

fmal determinations

than that given in

the public

notice,

including:

A)

The 30

day comment period;

---

B)

Procedures for requesting a public hearing and the

nature

thereof;

and

C)

Any

other procedures by which the public may participate

in the formulation of the final determination and

11)

Information on

how to obtain

the complete

draft permit

administrative

record

sunpofling the tentative determination.

b)

The Agency

shall add the

name

of any person or group,

upon request,

a mailing

Section 309.114 Notice to Other Govermnental Agencies

At the time of issuance of public

notice pursuant to

Sections

309.109

through 309.112,

the Agency

shall:

a)

Send a fact sheet,

if

one

has

been

prepared,

to any other States

whose

waters

may be affected by the

issuance ofthe proposed

permit

and,

upon

request,

provide such

States

with a

copy

of the application and a

copy

of

the

draft

permit.

Each

affected

State

shall be

afforded an opportunity

to

submit

written

recommendations within a

stated number

of days

to

the

Agency

and

to the Regional Administrator of the

U.S. Environmental

Protection Agency,

which the Agency may incorporate

into

the

permit if

issued.

Should the Agency decline to incorporate

any written

recommendations thus received,

it shall provide to the

affected

State or

States

(and to the Regional

Administrator) a

written

explanation of

its

reasons

for declining to accept

any

of the

written recommendations.

b)

Following the procedure

setforth in (a) above,

notify and receive

recommendations

from any interstate agency

having

water

quality

control

authority

over waters which

may be

affected

by the

permit.

c)

iJnless otherwise

agreed, in acáordance

with

40CFR

124.34(c),

send a

copy of the fact sheet, if

one

has

been prepared, to

theappropriate

District Engineer of the

Army

Corps of Engineers

for discharges

(other

than minor discharges)

into

navigiable waters.

d)

Upon request,

send a copy

of the public

notice and

a copy of the fact

sheet for

NPDES

Permit applications

to

any

other Federal,

state,

or local

agency,

or any

affrcted

country,

and provide such agencies an

opportunity to respond, comment,

or request a public

hearing

pursuant to

Sections

309.115-309.119.

Such agencies shall

include at least the

following:

---

1)

The agency responsible for the preparation of an approved

plan

pursuant to

Section 208(b) of the CWA; and

2)

The State or interstate

agency responsible for the preparation of a

plan pursuant to an approved continuous planning process under

Section 303(e) of the CWA.

e)

Send notice to,

and coordinate with,

appropriate public health agencies

for the purpose

of assisting the applicant

in integrating the relevant

provisions of the CWA with any applicable requirements of such public

health agencies.

Section 309.117

Agency Hearing

The applicant or any person shall be permitted to submit oral or written statements and

data concerning the proposed permit or group of permits.

The Chairman shall have

authority

to

fix

reasonable limits upon the time

allowed for oral

statements,

and may

require

statements

in writing.

The

documents or other materials referred to

or relied on

by

the Agency or the applicant

to support the tentative decision

shall

be

identified by

the Agency or Applicant at the hearing.

Section 309.119

Agency Action After Rearing

Subject to Sections 309.121

and 309.122,

following the public hearing,

the Agency

may make such modifications in the terms and conditions of proposed permits as may

be appropriate

and shall transmit to

the Regional Administrator for his

approval a copy

of the permit proposed to be

issued unless the Regional Administrator has waived his

right to receive and review permits of its class.

.me Agency

shall provide a notice of

suck transmission to the applicant,

to any person who participates in the public hearing,

to any person who requested a public hearing,

and to

appropriate persons on the

mailing list established under Sections 309.109 through 309.112.

Such notice shall

briefly, indicate any significant

changes

which were made frqni. terms and conditions set

forth

m the draft permit

All permits become effective when issued

:.:r/

i~’~i.:

~

-,

Section

309.t20

Oblization of Atrnlicant and Commenters to

Place Arguments

in

Record

All persons, including applicants, who believe

any conditioi

of a draft

permit is

inappropriate or

that

the Agency’s tentative decision to deny

an application.

terminate

a

permit.

or prepare

p

draft pennit

is inaPPropriate,

must

raise

all

reasonably ascertainable iss~s

and submit

all reasonably

available arguments

supporting their position

by th&close of the public commeqt period (including

any public hearing and post-hearing comment period),

Ahy

supporting

materials that are submitted shall

be

included

in

full

and may

not be

---

incorporated

by reference,

unless they are already

part of the administrative

record in

the same

proceeding, or consist of State or Federal statutes and

regulations,

EPA documents of general

applicability,

or other generally

available reference materials.

Commenters

shall

make

supporting materials

not

already

included

in the administrative record

available to EPA

as directed by

the

agency

(A comment

period

longer than

30 days may be

necessary

to

give

commenters

a reasonable opportunity to

comply

with the requirements of this

section.

Additional

time shall

be

granted to

the extent that a commenter

who

requests additional

time

demonstrates the need for such time).

Section

309.121

Reopening the Record to

Receive Additional Written

Comment

I)

The

Agency may order the public comment period

reopened

for

written

comment if the

procedures of this paragraph could expedite

the decision

making process.

When

the public comment

period is reopened

under

this paragraph,

all persons,

including applicants, who

believe any

condition of a draft permit is inappropriate or that the Agency’s tentative

decision to deny

an

application,

terminate

a permit,

or prepare a draft

permit is inappropriate, must submit all

reasonably available factual

grounds supporting their position,

including

all

supporting material,

by

a

date not

less than sixty

days after public

notice under paragraph (2) of

this section.

set

by the Agency.

Thereafter,

any person

may file

a

written response to the material

filed

by any other person, by

a date not

less than

thirty days after the date set for filing of the material,

set by

the

Agency.

2)

Public

notice of any comment period under this paragraph shall

identify

the issues as to

which the public comment period

is reopened.

3)

On its own

motion or

on the request of any person, the Agency

may

direct that

the requirements of paragraph

(1) of this section shall apply

during the initial

comment period where it reasonably

appears that

issuance of the permit will

be

substantially contested and that applyin~

the requirements of paragraph (1) of this section will

substantially

expedite

the decision making

process.

The notice ofthe draft permit

shall state whenever this has

been done.

4)

A comment

period of longer than 60 days will

often be necessary

in

complicated

proceedings to

give commenters p reasonable opportunity to

comply

with the requirements of this

section.

Commenters

may request

longer comment periods and they

shall

be

granted to the extent they

appear

necessary,

---

Section 309.122

Requirement

to Reopen Record if

Draft Permit is

Substantially Modified or Substantial New Ouestions Are

Raised

During

Comment

Period,

a)

!f~,after giving public notice of its tentative decision,

the Agency

determines to

modify any draft permit significantly,

the Agency shall

prepare a new draft permit,

appropriately modified and give

notice of the

new permit under

Section 309.109.

The Agency

may

restrict comments

on the modified draft permit

to

issues

on which there

has

not

been a

previous opportuiiity to comment.

b)

If any data, information or arguments

submitted during the public

comment period

appear

to

raise

substantial

new questions

concerning a

permit,

the Agency

may take one or more of the following actions:

I)

Prepare a

revised statement of basis under ~ 309.121: or

2)

Reopen or extend the comment period

to

give interested

persons

an opportunity to

comment on the information or arguments

submitted.

Comments

filed during the

reopened comment

period

shall be

limited to the substantial

new questions that caused

its

reopening.

The public

notice under ~i309.109 shall define the

scope of the reopening.

Section

309.123

Definition of the “Record

before the Agency”

The

record “before the Agency”

includes

all

documents or other materials

prepared, properly placed

in the record or identified in

the record pursuant

to

35

Ill.

Adm.

Code

309.108-110.

113,117, or

119-22.

SUBPART A:

NPDES PERMITS

SectIon 309.143 Effluent Limitations

a)

Effluent limitations

must control

all

pollutant or pollutant

parameters

(either conventional,

nonconventional, or toxic

pollutants) which the

Agency

determines are or may

be discharged at

a

level which

will

cause,

have the reasonable

potential

to cause, or contribute to

an

excursion

above any

State

water quality standard,

including State

narrative criteria

for water quality.

b)

In the application of effluent standards and limitations,

water quality

standards

and other applicable requirements,

the Agency shall, for each

---

permit,

specit5

average and maximum daily

quantitative limitations for

the level of pollutants in the

authorized discharge in terms ofweight

(exceptpH,

temperature,

radiation,

and

any other pollutants

not

appropriately óxpressed by weight,

and except for discharges whose

constituents cannot be appropriately expressed by

weight).

The Agency

may,

in

its discretion,

in addition to specification of daily quantitative

limitations by weight, speci& other limitations, such as average or

maximum concentration limits, for the level of pollutants

in the

authorized discharge.

Effluent

limitations for multiproduct operations

shall provide for appropriate waste variations

from such plants.

Where a

schedule of compliance is included as a condition

in a permit,

effluent

limitations shall be included for the interim period

as well as for the

period following the final compliance date.

Section 309.146

Authority to Establish Recording,

Reporting,

Monitoring and

Sampling Requirements

a)

The Agency

shall require every holder of an NPDES

Permit, as a

condition of the NPDES Permit issued to

the holder,

to:

1)

Establish, maintain and retain records;

2)

Make reports

adeuuate to

determine the compliance or tack

of

compliance by the permit holder with

all

effluent

limits and

special

conditions

in the permit.

3)

Install, calibrate, use and maintain

monitoring equipment or

methods

(including where appropriate biological monitoring

methods);

4)

Take samples of effluents (in accordance with such methods,

at

such locations,

at such intervals,

and in such a manner as may be

prescribed; and

5)

All permits

shall specify

requirements concerning the proper use.

maintenance, and

installation,

when appropriate, of monitoring

equipment or methods (including

biological

monitoring methods

when appropriate): required monitoring including

type.

intervals,

and frequency sufficient to

yield

data which are representative of

the nionitored activity

including, when

appropriate, continuous

monitoring

~

Provide such other

information as may reasonably be required.

---

b)

The Agency may require every holder of an NPDES Permit for a

publicly owned and publicly regulated treatment

works, as a condition of

the NPDES Permit,

to require industrial

users ofsuch a treatment

works

to:

1)

Establish, maintain and

retain

records;

2)

Make reports;

3)

Install, calibrate,

use and maintain monitoring equipment or

methods (including where appropriate biological monitoring

methods);

4)

Take samples of effluents (in accordance with such methods,

at

such locations, at

such intervals,

and in such a manner as may be

prescribed);

and

5)

Provide such other information as may reasonably be required.

c)

All such

requirements

shall be included as

conditions of the

NPDES

Permit issued to

the discharger,

and shall be at least as stringent as those

required by applicable federal

regulations when these become effective.

---

cIr~i~

(~r~

JPN

13

~Q03

ILLINOIS POLLUTION CONTROL BOARD

STATE OF ILLINOIS

Pollution

Control Board

IN THE MAFFER OF:

PROPOSED AMENDMENTS TO:

)

PART 309 SUBPART A

-

)

35

III. Adm Code 309.105, 309.7,

309.8,

)

“p,

~i3~

‘7

309.9, 309.10, 309.12, 309.13,

309.14,

309.117,309.119,309.143,309.147;

and

PROPOSED

35

I11.Adm, Code

120

)

through

122

-

NPDES PERMITS AND

)

PERMITTING PROCEDURES

)

STATEMENT OF REASONS

The Environmental

Law and Policy Center ofthe Midwest,

Illinois Chapter of the Sierra

Club, Prairie Rivers Network

and

the 225

persons whose signatures

are

filed with this

petition,

petition the Illinois Pollution Control Board (“IPCB”) to

amend Illinois Administrative Code

Title 35

Environmental

Protection Act;

Subtitle C: Water Pollution; Chapter I:

Pollution Control

Board; Part 309

subpart A. The amendments sought are to improve Illinois’

implementation of

the Clean Water Act, 33 U.S.C.

Section

1251

et seq., and the National Pollutant Discharge

Elimination System (NPDES) by amending the relevant regulations to require that:

•

The public is properly informed ofdraft NPDES permits

and is provided a fair opportunity

to

comment on substantial terms ofpermits before they are issued;

•

hearings are held when necessary to allow the public an opportunity

to comment on draft permits

and important revisions to draft permits;

•

the administrative record regarding eachpermit shows that the permit was properlyissued

and

that the permit does not purport to allow discharges that would

cause or contribute to a violation

ofIllinois water quality standards;

•

necessary monitoring ofNPDES

limits and conditions are include in permits; and,

•

Illinois permit procedures and NPDES

permits cothply with the Clean Water Act.

Adoption ofthe proposed amendments by the IPCB will improve the Illinois NPDES

permitting process, Illinois EPA issued permits, and Illinois water quality.

)

1

---

I.

The Proposed Amendments, Facts Supporting the Proposal and the Purpose and

Effect of the Proposal

It is proposed to amend Part

309 as discussed below.

Proposed New 309.105(1)

-

The proposed language

increase the situations in which a

NPDES permit may not be issued to include

cases in which “The public has not had a fair

oppbrtunity

to comment on all substantive terms ofthe permit.” It is beyond debate that both the

federal Clean Water Act and the Illinois Environmental

Protection Act mandate that members of

the public be granted broad opportunities to

participate in the permitting process. The proposed

amendment would help assure an opportunity for public participation as to

all NPDES permits.

The opportunity formeaningful public participation is an essential

part

ofthe

NPDES

pennitting process.

Section 101(e),

33 U.S.C.

§

1251(e), of the Clean Water Act provides:

Public participation in thedevelopment,revision,

and enforcement ofany

regulation, standard, effluent limitation, plan, orprogram established by

the Administrator or

any State under this chapter shall be provided for,

encouraged, and assisted by the Administrator and

the States.

Section 402 ofthe Clean Water Act,

33 U.S.C.

§

1342, requires that effective public

participation be allowed

in the

drafting

of

NPDES permits.

In a case involving athird-party

appeal ofaNPDES permit, the United States Court ofAppeals for the First Circuit wrote that

Congress enactedpublicparticipation rules understandingthat

“these

regulations would

do

more

than

pay lip

service

to

public

participation; instead ‘the public must have a genuine opportunity to

speak

on the issue ofprotection ofits

waters’

on

federal,

state and

local levels.” Natural Resources Defense Council v. U.S.E.P.A.. 859

F.2d 156,177 (D.C. Cir.

1988) (citations omitted) (construing public

participation

regulations

in

state

enforcement

process).

The

legislative

history

of the

CWA

also

echoes

the

desire

“that

its

provisions

be

administered

and

enforced

in

a

fishbowl-like

atmosphere.”

2

---

Adams v.

U.S. Environmental Protection Agency, 38 F.3d 43, 52

(1st Cir.

1994).

See also Webb

v. The Honorable William

L.

Fury,

167 W.Va.

434,

282

S.E.2d 28,

38

n.5

(W. Va. 1981)

(important role ofpublic participation

in permit writing and enforcement discussed in a case

involving

a suit to silence public opposition to certain mining).

Illinois law

also requires that the public be

allowed to participate fully in the NPDES

permitting process. This is true because, as discussed

further below, Illinois law requires that

Clean Water Act requirements be followed in NPDES permitting. Further, the Illinois General

Assembly in passing the Environmental Protection Act acted

inter alia

to

“assure that

all

interests

are

given a full hearing and to

increase public

participation in the task of protecting the

environment

...“

415 ILCS

5/2

(a)(v).

Public participation must be allowed as to all substantive provisions ofthe permit.

For

example, the monitoring conditions ofa permit must be developed in public, notbehind closed

doors.

The Environmental Appeals Board, a specialized federal administrative board which

reviews NPDES permits issued by the U.S. Environmental Protection Agency, rendered a

decision that makes clear that all important terms ofa permit must be subject to public

participation

and opportunity for comment.

In Re: Government ofthe District ofColumbia

Municipal Senarate Storm Sewer Systems,

20

EAD (2002) (hereinafter ~DCStorm Sewer

Systems” attached as Ex. A) held that the U.S. EPA had erred in granting a NPDES permit to the

District ofColumbia that allowed certain monitoring conditions

for a discharge on “Hickey Run”

to be developed after issuance ofthe permit. The Environmental Appeals Board wrote:

While

we recognize that the monitoring requirements

are

expected to

be added

at the time ofthe District’s First Annual Report and thus should be

in place before

the Hickey Run effluent limit becomes effective, we are troubled that this would

3

---

be accomplished through aminor permit modification without notice and

opportunity for public conmient.

See Permit pts. III.E &

IX.A.5

(as

amended).

Given that the regulations appear to contemplate that monitoring

requirements

ordinarily

be included as up-front permit conditions

—

conditions which would

thus ordinarily be subjected to public notice and comment

and the fact that we

find nothing

in the regulations

allowing for minor permit modifications that

authorizes

use ofa minor permit modification

in

this

setting, we conclude that

this

Permit does not meet minimum regulatory requirements and that remand of these

parts ofthe Permit is necessary. (pp. 32-33)

The Appellate Court in Prairie

Rivers

Network v. Illinois Pollution Control

Board No. 4-

01-0801 (hereinafter “Prairie Rivers”,

Slip Opinion attached as Ex.

B), which considered a

number of objections raised

to public participation procedures used in the consideration of a

particular

NPDES permit, expressed

no opinion on the merits ofappellant’s “policy-related”

arguments relating to

flaws in Illinois’ public participation practices. The Appellate Court

indicated that such issues should be

taken

to

the Board. (Slip op. at 10-11) Fairness, as well as

sound policy, favors allowing citizens to participate in decisions that effect the-health ofIllinois

rivers,

lakes

and streams. Accordingly, we herebypetition the IPCB for changes to

Part 309 that

will prevent permits from being issued if the public

has not been allowed an opportunity to

comment on all substantial terms ofthe permit.

Petitioners do not anticipate that many permits will be overturned on appeal based on the

proposed provision. Illinois EPA currently normally affords the public an opportunity

to

comment on all substantive provisions of NPDES permits and adoption ofthe proposed-rule-will

probably cause Illinois EPA to be even more careful in this regard.

Proposed New 309.105(g)

-

The proposed language

adds

to

the situations in which an

NPDES permit may not be issued the case in which the “permit, permit conditions or procedures

used to

draft or issue the permit are not consistent with any applicable federal law.” The wording

4

---

of this proposed provision borrows

from 415

ILCS

5/28.l(c)(4), which pertains to adjusted

standards.

Illinois law is clear that Illinois environmental

statutes and regulations should be read to

accord with the Clean Water Act and other federal laws.

Peabody Coal Co. v. Pollution Control

,

36111. App.

5,344 N.E.2d 279, 285

(5th

Dist.

1976);

see

also 415 III.

Comp. Stat.

5/13(b)

(Bo~rdrules shall be consistent with the Clean

Water Act). If the Illinois Environmental

Protection Act is interpreted or implemented by Illinois in

such a manner that

it does not fully

implement the letter and policies ofthe Clean Water Act,

Illinois could

lose the ability

to

administrate NPDES permitting in Illinois.

See 40 C.F.R. §~123.63,123.64(b) (U.S. EPA may

withdraw program approval when a state program no longer complies with federal regulations,

person may petition U.S. EPA for withdrawal ofstate program authority).

It is the express policy

of the General Assembly that the IPCB and the Illinois EPA administer the Clean Water Act in a

maimer consistent with Illinois administering the NPDES permitting system. 415 ILCS

5/1 1(a)(7),

(b). Clearly,

the Illinois legislature intended Illinois permits and procedures to comply

with federal

law.

Nonetheless, the Appellate Court in Prairie Rivers

held that

any conflicts between

Illinois regulations and

federal law can only be corrected by the IPCB by changing the

regulations (slip op.

at 11) or by U.S. EPA disapproving of the Illinois NPDES permit program

(Slip op.

at

9). Accordingly, petitioners ask the IPCB to make clear through this

proposed

regulatory change that

in the future no deviations will be allowed between federal legal

requirements

and Illinois NPDES program and that permits may only be issued if they meet at

least the minimum requirements offederal

law.

5

---

Proposed New 309,107(c)

-

Giving a copy ofthe application to the Illinois Department

of Natural Resources

(“IDNR”)

is clearly

beneficial.

IDNR

has

much ofthe responsibility for

studying and protecting wildlife in Illinois. Giving notice to

IDNR is already required as to

permits proposing new or increased discharges (see 35

Ill.

Adm. Code

l05(f)(l)(F)) and should

be done as a matter ofcourse.

The proposal allows for a memorandum ofunderstanding to be reached between IEPA

and IDNR that will specif~’

the terms for giving IDNR notice.

It is our understandingthat

such a

memorandum is already under discussion between Illinois EPA and IDNR.

Proposed Additional Clause to 309.108(c) and Proposed New 309.108(e)

-

The

proposed revisions to Section 309.108 elaborate on the matters that Illinois EPA shall discuss

in

its statement of the basis

administrative record in

support of its tentative decision to issue the permit.

Section 3 9(a) of the Environmental Protection Act that states that permits shall only be

issued “upon proof by the applicant” that the permit “will not cause a violation ofthis Act or the

regulations hereunder.”

415

ILCS

5/39(a);

See also Panhandle Eastern Pipe Line Co. v. Illinois

EM,

314

Ill. App. 3d 296,

743 N.E. 2d

18,24

(4th

Control Board, 224

III. App.

3d 592, 586

N.E. 2d

1320,

1322 (3d Dist.

1992).

The

Environmental Protection Act also implicitly requires that the Illinois EPA create a reviewable

record.

415 Ill. Comp. Stat.

5/40(d)

and (e), which govern

appeals both refer to the

“administrative record” as the subject of IPCB review and 5/40(e) states that

“the Board shall

hearthe petition

...

exclusively on the basis ofthe record before the Agency.”

Plainly, then, it is

necessary that a clear record supporting the Illinois EPA’s permit decision be created.

6

---

Although use ofthe U.S. EPA NPDES

Permit Writers’ Manual (December

1996)

(hereinafter“Permit Writers’ Manual”portions of which are attached as Ex. C)

is not strictly

mandatory on state NPDES programs, its discussion ofthe need for creation ofa clear

administrative record is useful here:

The administrative record

is the foundation for issuing permits. IfEPA is the

issuer, the contents ofthe administrative record areprescribed by regulation (see

40CFR §~124.9

and

124.18). All supporting materials must be made available

to

the public, whether a

State, Territory, Tribe or EPA issues the permit. The

importance ofmaintaining the permit records in

a neat, orderly, complete, and

retrievable form cannot

be over

emphasized. The record allows personnel from

the permitting agency to reconstruct thejustification for a given permit.

It also

must be made available to the public at any time and may be examined during the

public comment period and any subsequent public hearing.

(~J

11.1.1, p.193)

Proposed Additional Clause in 309.109(a)

-

This amendment

is proposed to recognize

re-noticed draft permits.

This issue

is discussed further below in connection with proposed new

sections 309.12 1 and 309.122.

Proposed

Deletion From 309.109(b)

and 309.113(a)(10)(A)

-

This

is merely a

clarifying provision which eliminates an inconsistency in the terminology in

the regulations.

Its

is proposed to strike the reference to

a “30 day” comment period because the comment period

may be longer than 30days under the first sentence of309.109(b).

Proposed Additions to 309.110(1)

-

This proposed revision fl.irther specifies the

information that must be contained in the permit notice. The information to be added is useful

and much of it is already given by IllinoisEPA asamatterofcourse.

-

40 CFR §l24.10(d)(v), which is applicable to

all states that wish to administer a NPDES

program, explicitly requires providing all

ofthe information that the proposal would require to be

7

---

supplied. If Illinois

is to

continue administering

an NPDES program, itmust adopt rules

-

regarding notice that are at least as stringent as the federally required language.

40 CFR

123.25.

Proposed Additions to 309.113(a)

-

This proposed language would

add information to

the fact sheets that

is necessary for documentation of compliance with 35

Ill. Adm. Code

302.102, 302.105 and 304.105. The portion of the proposal that requires a “brief descriptionof

the

isignificant

factual, legal, methodological

and policy questions considered in

preparing the

draft permit” is federally required language taken directly from 40 CFR

§

124.8(a). The portion of

the proposed language that is nottaken directly from 40 CFR

§

124.8

is reasonably necessary to

inform the public of the critical

facts regarding the permit and comply with 40 CFR

§

124.56,

which is also directly applicable to states wishing to

administer a NPDES program.

To the extent that the proposal goes beyond what is explicitly required by applicable

federal regulations,

it requires information that

is necessary to understanding the basis for the

permit. As is explained by the U.S. EPA

Permit Writers Handbook, “a detailed

discussion of

permit limits for each pollutant should be included in the fact sheet” and:

For each pollutant the following information is necessary:

Calculation and assumptions

-

-

Production

-

Flow

Types oflimitations (i.e.

effluent guideline-, water quality-, or BPJ

best

professional judgement-based)

Whether the effluent guidelines used were BPT, BCT or BAT

The water quality standards or criteria used

Whetherany pollutants were indicators for other pollutants

Citations to appropriate wasteload allocation studies, guidance documents,

other references. ¶11.1

(p. 197)

Proposed Change to 309.114(c)

-

Spelling Correction on

“Navigable”.

Proposed Additional Sentence to 309.117

-

This proposal requires that Illinois EPA

identi& the materials it relied on in

making its

tentative decision regarding

thepennit. This

8

---

information is needed to

allow proper review ofIllinois EPA permit decisions.

Particularly

given

that Illinois law restricts third party review to

documents in the administrative record, 415

ILCS 5/40(e), the rules should leave no room for debate as to

what was properly before the

Agency.

See also,

Permit Writers’ Manual

§

11.1.1.

Proposed Additions to 309.112

and 309.119

-

This language is added simply to

prevent

anj confusion regarding the applicability ofproposed sections 309.121

and

309.122, discussed

below. The change to 309.119 is necessary to eliminate the inference drawn by the IPCB and the

Appellate Court in

Prairie Rivers that the public should never be allowed an opportunity

to

comment on a revised permit even

in circumstances in which the Clean Water Act or proper

concern for public participation requires that opportunity for additional comment be allowed.

Proposed New 309.120

-

This proposed amendment provides that persons wanting to

object to permits or permit conditions

must make their points during the public comment period.

The proposed section is modeled on 40 CFR

§

124.13, which is used by U.S. EPA in states in

which

it administers the NPDES program.

The federal

regulation that was used

as a model for the proposal is not mandatory on the

states

and Illinois

is not legally bound to track exactly

this

federal procedure. However, fairness

and administrative economy call for all persons, including applicants, to

raise all reasonably

ascertainable issues and submit all reasonably available arguments to the Illinois EPA before the

close ofthe public comment period. There is no excuse for failing to present

arguments to

Illinois EPA during the comment period.

Proposed New

309.121

and Proposed New 309.122

-

The proposed language for

309.121

is borrowed from 40 CFR

§

124.14(a) which is npt directly applicable to the states, but

9

---

which should be

adopted by Illinois.

It sets forth

an orderly procedure for reopening the record

when circumstances make

it fair and necessary to do so.

The proposed language of309.122 is based on 40 CFR

§

124.14(b) and requires that the

record be reopened

to allow further

comment

in

a limited class ofcircumstances.

The proposed

language is less restrictive than 40 CFR

§

124.14(b) which appears to require a new comment

perfod whenever a draft permit

is modified.

The proposed language only would require a new

comment period ifthe changes are

significant. Although the specific language proposed is not

mandatory on the states, making allowance for reopening ofthe hearing record after changes are

made to

a draft permit is required by the Clean Water Act and basic concepts offairness.

Decisions by the JPCB and the Appellate Court in Prairie

Rivers have made it absolutely

imperative that an

amendmentbe made that makes clear that another opportunity for public

comment must be allowed in cases in which substantial changes have been made to

the draft

permit on which the public was allowed to comment. Prairie Rivers held that a second

opportunity for public comment can never be allowed under Illinois law no matter how

significant the changes that are made

to the draft permit by Illinois EPA.

This allows as a

practical matter the complete destruction ofthe public’s ability to participate in the process and is

not tolerable under the Clean Water Act.

That the public must be allowed

in some

circumstances to comment on a revised draft

permit can be seen by considering a simple example.

Let us assume that

in a particular draft

permit all ofthe pollutants that may be

discharged are strictly limited and monitored so as to

prevent any damage to the receiving waters or violation ofwater quality standards. No members

ofthe public would probably even bother to comment after receiving notice of such a draft

permit. Now, what if Illinois EPA, after the close ofthe public comment period, eliminated

10

---

effluent limits or critical monitoring from the permit and then issued the transmogrified permit as

the final permit ? Certainly, persons

concerned with

the receiving waters would want to

object,

but, if there

can

never be a second round ofopportunity

for public comment, those persons are

precluded from having any sayon the actual terms ofthe permit as issued.

Persons concerned about the receiving water in the example could take a third party

ap$eal to the IPCB, but they would have a very hard time establishing a basis for appeal.

Appeals

to the Board are limited to the record before theAgency (415 ILCS 5/40(e)), but, under the facts

presented by the example, there will be no comments in the record showing that

the permit needs

the effluent limits ormonitoring requirements that were deleted after the close of the comment

period. No one would have had

any chance to put anything into the record showing that the

deletions

were improper because no round ofcomment was allowed after the deletions were

made. Under this example, effective public participation is completely denied but nothing can be

done about it under current Illinois regulations.

It is not suggested that the Illinois EPA currently makes ahabit of deleting substantial

protections from permits after the close ofthe public comment period. Petitioners believe,

however,

that in

a few cases changes have been made to draft permits

in circumstances in which

further comment should have been allowed. The key point is that Illinois procedures allow a

wholesale circumvention ofpublic participation. This loophole must be plugged or Illinois’

NPDES program is very unfair and

violates

the Clean Water Act.

Judicial and administrative decisions show that the Clean Water Act and proper respect

for public participation requires that provision be made for reopening the administrative record to

allow further public comment in cases where the agency has decided to make substantial changes

in the draft permit.

When the revised permit substantially deviates from the draft permit, the

11

---

public is not given

an opportunity

to comment on the permit that

is actually issued unless the

revised permit is submitted to public comment.

-

In Hi-Line Svortsmen Club

v. Milk River Irrigation Districts, 786

P.2d

13

(Mont.

1990),

persons concerned with potential injury to fisheries objected to certification under

§

401 ofthe

Clean Water Act ofaproposal to allow warm

water from an auxiliary outlet from a reservoir to

flo~’

into an

important fishery.

fiat

14-15.

During proceedings regarding the auxiliary outlet

proposal, the applicant proposed a scheme whereby cooler water would be siphoned from below

the auxiliaryoutlet.

flat

16.

This proposal was approved by the decision maker without giving

the public a chance

to comment.

a

Although this siphon proposal was designed to meet

environmental concerns, the Montana Supreme Court

affirmed

the decision ofthe trial court that

due process would be violated ifthe Clean Water Act

§

401

certification was granted without

giving the third parties the opportunity

in hearings to explore the proposal ofa using a siphon to

prevent thermal pollution.

fiat

17.

Similarly, a very recent decision by U.S. EPA Administrator Christine Todd Whitman

on

a permit granted under the Clean Air Act (“CAA”) provides strong persuasive authority

regarding what was required. In Mailer of Orange Recycling and

Ethanol Production Facility.

Pencor-Masada Oxvnol LLC (Petition

No: 11-2000-07),

Administrator

Whitman

decided that

revisions made by the New York State Department ofConservation (“NYSDEC”) in consultation

with the applicant and U.S. EPA to

adraft permit after the close ofthe public

comment period,

while sound, had to be renoticed to allow

further comment. Administrator

Whitman wrote:

The CAA

and its implementing regulations at

part

70 provide for public comment

on “draft” permits and generally do not require permitting authorities to conduct a

second -round ofcomments when sending the revised “proposed” permit to EPA

for review. It is abasic principle of administrative law that agencies are

encouraged to

learn from public comments

and, where appropriate, make changes

12

---

that are a “logical outgrowth” of the original proposal.

See, e.g.,

Sierra Club

v.

Costle,

657 F.2d 298,

352

(DC Cir.

1981). However, there are well recognized

limits to the concept of“logical outgrowth”

in the context ofAgency rulemaking

that, by analogy, apply to title V

permits as well. As the US Court ofAppeals for

the DC Circuit

has

explained, “if the final rule deviates too sharply from the

proposal, affected parties will be deprived of notice and an opportunity

to respond

to the proposal.”

Small Refiner Lead Phase-Down TaskForce

v.

EPA,

705

F.2d

506,

547 (DC Cir. 1983) (vacating portion of final

CAA

rule governing leaded

gasoline because agency notice was “too general” and did not apprise interested

parties “with reasonable specificity” of the range of alternatives being

considered). See

also

Shell Oil

Company v.

EPA,

950 F.2d 741

(DC Cir.

1991)

(remanding final

RCRA “mixture and derivedfrom”

rule

because “interested

parties cannot

be expected to

divine the EPA’s unspoken

thoughts”);

Ober v.

EPA,

84 F.3d 304, 312

(9th

Cir.

1996) (requiring an additional round ofpublic

comment on EPA’s approval of Arizona’s PM-b

Implementation Plan because

public never had an opportunity

to comment on state’s post-comment period

justifications which were critical to EPA’s approval decision). Courts have noted

that providing the public meaningful notice improves the quality ofagency

decisionmaking, promotes fairness to

affected parties, and enhances the quality of

judicial

review.

Small Refiner,

705 F.2d at

547. I find that these fundamental

principles apply with equal force in the context of title V permitting.

Otherwise, if

a final permit no longer resembled the permit that the public commented upon,

then the public would be deprived ofthe opportunity

to comment guaranteed by

the

CAA

and

EPA’s rules.

Determining how much notice is sufficient is inherently a matter of

judgment. In this case, however, the operational constraints imposed on the

facility

in the proposed permit were so

significantly different from those in

the

draft permit that I find that additional public notice on this particular aspect ofthe

permit is required.(Slip op.

at 7-8, footnote omitted)’

It must be emphasized here that there are two things that proposed 309.121

and

309.122

do not do. First, these provisions do not require an infinite number of rounds ofpublic comment.

An additional round ofpublic comment must only be allowed in very limited circumstances and

the need for more than one additional round ofpublic comment will probably never arise.

‘This decision is attached as Ex. D.

It is also published on the Internet at

www.epa.gov/rgytgrnj/programs/ortdlair/title5/petitiondb/petitions/masasadecision2000.pdf.

13

---

Second, even when it is decided that additional public comment should be

allowed, it is

not

necessary

to allow any additional hearing although Illinois EPA may hold additional hearings

after significantly revising apermit if it believes that itwould be useful to allowadditional

comment in that form.

Thus, even in those very few cases in which it is necessary to allow

additional comment, allowing written comment

will normally suffice.

Proposed New 309.123

-

This language simply makes clear what is in the “record before

the Agency” so as to prevent any

confusion as to the matters that areproperly before the Board in

hearing any appeal under 415

ILCS 5/40(d)

or (e).

Proposed New 309.b43 (a)

-

The proposed language requires that effluent limitations in

NPDES permits control all pollutants sufficiently such that the discharge does not cause or

contribute to a violation ofwaterquality standards,

including narrative standards.

This language

is taken verbatim from 40 CFR 122.44(d)(l)(i). Language as stringent, ormore

stringent, must

be

followed by Illinois

EPA if it is to continue to administer the NPDES program. These

requirements have been recognized by the IPCB in the past. In the Mailer of: Petition of

Commonwealth Edison Company for Adjusted Standard from

35111.

Adm.

Code 302.211(dI and

(~),

AS 96-10 (PCB, October 3,

1996)

The Board could incorporate 40 CFR

122.48

by reference. ~

415

ILCS

5/7.2. However,

in view ofthe importance ofthis

issue, it is best to place the federal requirement directly into the

Illinois regulations.

-

309.143(b) in the proposal consists of the current 309.143

Proposed additions to 309.146(a)(2)

-

The proposed language makes clear that effluent

limits and special conditions in the permit shall be

monitored and

enforceable both

through

Agency and citizen actions.

~

Permit Writer’s Handbook Chapter 7; United States v.

14

---

AlleghenyLudlum

Corp.,

118 F.Supp. 2d

615, 618

(W.D. Pa.

2000) (importance ofself-

monitoring and reporting under Clean Water Act)

Proposed New 309.146(a)(5)

-

This language is

taken verbatim from 40 CFR

§

122.48,

which is applicable to state programs. Language as stringent, ormore stringent, is mandatory for

Illinois

EPA if it is to

continue to administer the NIPDES program in Illinois. 40 CFR §123.25.

A jiermit

that fails to spell out the necessary monitoring violates this regulation and the public’s

right

to participate

in commenting on monitoring provisions.

See also DC Storm Sewer Systems

Again, the Board could incorporate 40 CFR

§

122.48

by reference, $~ç

415 ILCS 5/7.2.

However, because there has been confusion in thepast to the extent that it has sometimes by seen

as acceptable to

issue a permit without

all of the key monitoring terms in the permit,

it is wiser

for the Board to incorporate this provision directly into the Board’s regulations.

It is proposed to renumber what is currently 309.146(a)(5)

as 309.146(a)(6).

H. Affected Sources and the Economic Impact of the Proposal

It

is unclear whether any sources, facilities and dischargers will be affected by the

proposal and

it is also unclear if the proposal

will have any significant economic impact. This is

true because many of the procedures established by the proposal are already being followed to

a

large degree by the Illinois EPA in writing NPDES permits.

This is

true

although, under Prairie

Rivers, it appears Illinois EPA may not currently be required by Illinois law to follow those

procedures or otherwise comply with federal

law.

To the extent that the proposal

will require the Illinois EPA to give notice, allow public

comment or create descriptions or documents that it does not

currently create, the proposal may

have

some effect on the speed in which the agency makes permitting decisions. It is believed by

petitioners,

however, that the proposal will ultimately expedite consideration ofNPDES permit

15

---

applications by creating clearer and fairer procedures. As more information becomes available

through proper notices, fact sheets and fair hearings, there will be less need for time consuming

Freedom ofInformation Act document requests, hearings on

matters

that could havebeen

avoided had the necessary information been recorded, and permit appeals to the IPCB. Proposed

309.120 will serve directly to expedite proceedings by preventing persons

from attempting to

base appeals on arguments that they did not place in the administrative record. Moreover,

by

assuring fair procedures and that permits are

issued in compliance with the Clean Water Act, the

proposal as a whole will prevent future delays and controversies regarding Illinois NPDES

permits and Illinois EPA’s permit writing authority.

To the extent that improved permitting procedures, permits

and

compliance with federal

laws leads to

the issuance ofpermits

that

require dischargers to reduce the extent or

environmental

impacts of theirdischarges, there may be some new costs imposed on dischargers.

Petitioners believe that some such costs will result

from enactment of

this

proposal but that the

extent ofsuch impacts is impossible to estimate. Moreover,

any such economic impacts will be

necessary to protect the environment and comply with the Clean Water Act.

Finally,

improvements to the Illinois NPDES permitting process will result in better

NPDES permits. This in turn will reduce water pollution and have a positive -economic impact on

all ofthe citizens,businesses and public entities in Illinois that benefit directly or-indirectly from

a healthier Illinois environment. As was specifically found by the Illinois General Assembly,

“pollution of the waters ofthis State

....

impairs domestic, agricultural, industrial, recreational,

and other beneficial uses ofwater and

depresses property values

“415 ILCS

5/1

I(a)(l).

16

---

CONCLUSION

The Board should adopt the proposed changes to

part

309 to assure that proper public

participation in NPDES permitting

is allowed, that Illinois NPDES permits

are issued

in

compliance with federal

law and

that Illinois NPDES permits properly protect Illinois

rivers,

lakes and streams.

g.EttingerS3l2SO45I~

Counselfor Environmental Law & Policy

Center, Prairie Rivers Network and Sierra Club

Environmental Law& PolicyCenter

35 E. Wacker Dr. Suite 1300

Chicago, Illinois 60601-2110

312 795 3707

January 13, 2003

17

---

---

(Slip Opinion)

NOTICE:

This

opinion

is

subject

to

formal

revision

before

publication

in the Environmental Administrative Decisions(E.A.D.).

Readers

are requested to

notitS’ the

Environmental Appeals

Board,

U.S.

Environmental Protection Agency, Washington,

D.C. 20460,

of

any typographical or other format

errors, in order that corrections

may

be made before publication.

BEFORE THE ENVIRONMENTAL APPEALS

BOARD

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY

WASHINGTON,

D.C.

.

)

Inre:

)

)

Government of the

District of

)

Columbia

Municipal

Separate

)

Stomi Sewer System

)

NPDES Permit No.

DC 0000221

)

)

NPDES Appeal Nos. 00-14

&

01-09

Decided

February 20, 2002

ORDER DEN YING RE

VIEWIN

PART

AND

REMANDING IN PART

Before

Environmental

Appeals

Judges

Scott

C

Edward E. Reich,

and

Kathie A.

Stein.

Fulto,z,

EXHIBIT A

---

GOVERNMENT OF THE DISTRICT OF COLUMBIA

MUNICIPAL SEPARATE STORM SEWER SYSTEM

NPDES

Appeal Nos. 00-14 &

0 1-09

ORDER

DENYING REVIEW

IN

PART

AND REMANDING IN

PART

Decided February

20, 2002

Syllabus

In April2000,

U.S.

EPA Region Ill (the “Region”) issued

a National

Pollution

Discharge Elimination System (“NPDES”)permit, number DC

0000221

(the “Permit”),

to the Government of the

District of Columbia (the “District”).

The Permit authorizes

storm

water

discharges

from

the

District’s

municipal

separate

storm

sewer

system

(“MS4”).

The Permit

requires

the

District to

use

various

best

management

practices

(“EMPs”) to control pollutant

discharges in furtherance of attaining the District’s water

quality

standards.

The

required

BMPs

are

set

forth

in

the

District’s

storm

water

management

plan (“SWMP”), which

is incorporated into the

Permit by

reference.

On

August II, 2000, Friends of the

Earth and Defenders of Wildlife (“Petitioners”) timely

filed

a petition

requesting that the Environmental Appeals Board review the Permit (the

‘Petition”) (the

Petitioners also

filed

a

second petition

after the Region withdrew

and

reissued

a portion of the Permit).

HELD:

The

Permit

is

remanded

to

the

Region

for

further

analysis

and

explanation

in

a

number

of

areas.

Petitioners

and

the

Region

have

grouped

their

arguments

in

the nine

categories described

below,

and

the Board’s holding

on

each

is

summarized as

follows:

I.

Compliance

with

Water

Quality

Standards.

Petitioners

object

to

the

Permit’s conditions that specify

BMPs, rather than numeric

limits, to control

pollutant

discharges

and

meet

the

District’s water quality

standards.

The

Petitioners’

general

argument that the Region violated

an affirmative duty to

set numeric

limits is rejected,

in

keeping with

the

Board’s decision on similar issues

in

In re Ariz.

Mun.

Star,,,

Water

NPDES Permits,

7

E.A.D.

646

(1998).

The

Petitioners’

more specific

argument

that

numeric limits could

have bcen

set equal to the

numeric water quality

standards

of the

receiving waters is also rejected

on the grounds that Petitioners failed to demonstrate that

they raised this argument

and

the cited authority during the public comment period.

The

Petitioners’ argument that the Region should have included narrative provisions requiring

compliance with water quality

standards is also rejected

on

the grounds that there

is

no

statutory or regulatory provision

that requires

use of narrative limits.

---

2

GOVERNMENT OF THE DISTRICT OF COLUMBIA

MUNICIPAL SEPARATE STORM SEWER SYSTEM

There is merit, however, to Petitioners’

argument thatthe Region failed to show

that

the

selected

BMPs

will

be

adequate

to

ensure

compliance

with

water

quality

standards.

First,

it is not clear

that the Region’s determination that the specified BMPs

are “reasonably capable” of achieving water quality

standards

fully comports with 40

C.F.R.

§

122.4(d),

which

prohibits

issuing

a permit

“when

imposition of conditions

cannot

ensure

compliance with the applicable water quality requirements ofall affected

states.” (emphasis added). Second, even accepting the Region’s suggestion that ensuring

compliance was what the permit writer has in mind,

there is nothing

in the record, apart

from

the District’ssection 401 certification, that supports the conclusion that the Permit

would, in fact, achieve water quality standards.

Without such record support the Board

cannot

conclude

that the approach

selected by the

Region is rational

in light of all

the

information

in the

record.

The

Region

does not

dispute

that

the Region

cannot

rely

exclusively on the District’s section 401

certification, at least in a circumstance like this

one

in

which there

is

a body

of information

drawing the

certification

into question.

Accordingly, additional

record support for the Region’s determination is

required, and

the Permit is remanded for fUrther analysis in this regard.

2.

Mickey

Run.

Petitioners

argue that

the Permit

is

deficient

in

that

(a) it

contains an aggregate numeric effluent limitfor fouroutfalls into Mickey Run instead of

a

limit for each outfall

and (b)

it contains monitoring requirements that the Petitioners

allege

are inadequate.

The regulation cited by Petitioners contains the disjunctive phrase

“outfall

or

other discharge

point”

and

therefore

must be

read

as

contemplating some

flexibility in appropriate circumstances to frame effluent limitsat

a discharge point other

than the outfall.

There is no clear error in the

Region’s conclusion that,

in the

unique

circumstances of this case,

an aggregate limitfixed

at

a point proximate to four closely

connected outfalls was appropriate.

However, the proposed delayed development ofthe

Mickey Run

monitoring requirements

is

problematic in

two

respects.

First,

both 40

C.F.R.

§

122.48tb) and 40 C.F.R.

§

122.440) require

that certain monitoring conditions

be included in all permits.

The Region has not explained how its issuance of this Permit,

which

does

not

at

its

inception

contain

monitoring

requirements

for

Mickey

Run,

comports with the regulatory directive that all permits include these conditions.

Second,

while the monitoring requirements are expected to be added

at the time ofthe District’s

first

annual

report and

thus should be

in

place

before

the

Mickey Run effluent limit

becomes effective, the Board finds it troubling that this would be accomplished through

minor permit modification without notice

and opportunity for public comment.

Given

that the

regulations

appear to

contemplate that

monitoring requirements ordinarily be

included

as up-front

permit conditions

--

conditions

which

would

thus ordinarily

be

subjected to public notice

and comment--and there does not appearto be anything in the

regulations allowing forminorpermit modifications that authorizes use ofa minor permit

modification in this setting,

the Board concludes that this Permit does not meet minimum

regulatory requirements and that remand of these parts of the Permit is necessary.

3.

Reductions to the

“Maximum Extent

Practicable”.

Petitioners’

argument

that the

Region erred

in detcrminating

that

the

Permit will

reduce storm water pollutant

discharges to the maximum extent practicable (“MEP”) as required by CWA

§

402(p)

is

---

GOVERNMENT OF THE DISTRICT OF COLUMBIA

3

MUNICIPAL SEPARATE STORM SEWER

SYSTEM

rejected.

The

record demonstrates that

the Region duly considered the issue

raised by

Petitioners

in their comments,

and the record does not

lead to the conclusion that any

additional BMPs beyond those identified in the

Permit are

practicable in

this

case.

4.

Deferral of Complete

l’ro2ram.

Petitioners’

arguments that

the

Permit’s

provision for upgrading the SWMP indicates that the Permit is inadequate at its inception

is

rejected.

The

evaluation

and

upgrade requirement

incorporates

into

the

Permit

a

process

for

adjusting

the

Permit’s

terms

and

conditions

to

take

into

account

new

knowledge and changed circumstances affecting practicality ofBMPs.

This adjustment

process does not imply that the Region has failed

to properly assess MEP at

the time of

the Permit’s issuance; it simply recognizes that what is practicable will change overtime

and

that the Permit should be adaptable to such

changes.

5.

Failure to Reauire Compliance Within

3

Years.

Petitioners’ argument that

the Permit fails to require compliance within the three-year

time period set forth

in CWA

§

402(p)(4)

is rejected.

The Permit does not authorize

a deferred

implementation of the

BMPs

that were determined to be MEP at the time of

issuance

ofthe Permit; instead, the

Permit

simply recognizes that what is practicable will change during

the Permit’s term

and that upgrades of the Permit’s requirements should not be delayed until the Permit

is

renewed.

6 & 7.

Storm Water Implementation Plan and

FundinE.

Petitioners’ argument

that

the

“cost

benefit

and affordability”

analysis

required by

Part

III.E of the

Permit

violates

the CWA is rejected.

Information concerning

a

“cost benefit

analysis” of the

various

BMPs

is

relevant

to

the

upgrading

of the

SWMP

and

BMPs.

Cost

benefit

information, however,

is not relevant for purposes of determining compliance with

the

Permit’s requirement that

the District implement the BMPs

in its current SWMP.

The

Permit

recognizes

this

distinction

and

states

that “a)ffordability

cannot

be

used

as

a

defense for noncompliance.”

8.

Modifications.

The

Board

addresses

Petitioners’

various

arguments

regarding deficiencies

in

the Permit’s modification

provisions

as follows.

The

Board

adopts the Region’s interpretation that the reference in the Permit to 40 C.F.R.

§

122.63

serves to limitthe allowable extensions ofinterim compliance dates undertaken

as minor

modifications to “not more than

120

days after

the date specified in

the existing permit

and

provided

that it)

does

not

interfere with

attainment of the

final

compliance date

requirement.”

40 C.F.R.

§

l22.63(c).

The Region did not err in characterizing

the deadlines set forth in Part

I ll.A and

Part lIl.B.I0 ofthe Permit as “interim compliance dates

in

a schedule of compliance”

that may be modified

by minor modification as

set forth in 40 C.F.R.

§

122.63(c).

On

the

other

hand,

Permit

Parts

IV.A.l, VIllA,

IX.A.5

&

IX,C,

which

together

authorize

changes

in

monitoring location by minor modification, cannot be

squared with 40 CF. R.

§

122.63(c).

That section only authorizes the addition of new monitoring requirements

hy minor modification; it does not authorize

a

change in monitoring location

by

tilimlor

---

4

GOVERNMENT OF THE DISTRICT OF COLUMBIA

MUNICIPAL SEPARATE

STORM SEWER SYSTEM

modification.

Accordingly,

any

such

changes must be made through the formal “notice

and comment”

procedures of section

122.62.

Therefore

Permit

Parts lV.A.l, VIllA,

IX.A.5 & IX.C are remanded for revision.

Petitioners object to thePermit’s conditionsthat allow the Region to “approve”

schedules fordevelopingand implementingan enforcementplan (Petition, Part 111.8.11),

to approve

certain

additional SWMP program

activities (Petition, Part

111.8.12), and

to

approve, disapprove or revise the District’sAnnual Reports and Annual Implementation

Plans (Petition, Part DIE).

It is unclear whether

these provisions are simply intended to

reference

EPA

actions

in

administering

the

Permit

that

do

not

themselves

result

in

changes to the Permit (or the SWMPs

subsumed within the Permit) and thus should not

be

subjected to

formal

notice

and

comment

procedures, or whether

these

provisions,

referenced

as they

are

in the minor modification section of the permit,

are intended to

serve as a

basis for substantive changes to permit conditions.

The Region is directed

on

remand to clari& the extent to which

these provisions in the Permit allow for changes in

permit conditions by minor modification.

9.

Waivers and

Exemmions.

The

Petitioners argue

that

the District’s storm

water

regulations,

incorporated

into

the Permit

by

reference,

require

the

granting of

variouswaivers or exemptions that are in conflict with the CWA and EPA

mles.

Because

the

Region’s

Second

Response

to

Comments

does

not

challenge

the

validity

of

Petitioners’

Comments,

but

rather tends

to treat

them

as meritorious,

and

because

the

Region failed to make changes to the Permit orto otherwise address Petitioners’ concerns

regarding these waivers and exemptions, this portion of the

Permit is

remanded to

the

Region

to

either

make

appropriate

changes

to

the

Permit

or

to

explain

why

the

Petitioners’

comments do not merit such

changes.

Before

Environmental

Appeals

Judges

Scott

C.

Fulton,

Edward E. Rekh, and Kathie A. Stein.

Opinion ofthe Board by Judge

Fulton:

In

Apr11

2000,

U.S.

EPA Region

III (the

“Region”)

issued

a

National Pollution Discharge Elimination

System

(“NPDES”)t

permit,

number DC 0000221

(the “Permit”), tothe Governmentof the District of

Under the Clean Water Act (“CWA”), persons who discharge

pollutants from

point sources (discrete conveyances,

such

as pipes) into waters ofthe United States must

have

a permit

in order for the discharge

to be

lawful.

CWA

§

301,

33

U.S.C.

§

1311.

The National Pollutant Discharge Elimination System is the principal permitting program

under

the CWA.

CWA

§

402,33 U.S.C.

§

1342.

---

GOVERNMENT OF THE

DISTRICT OFCOLUMBIA

S

MUNICIPAL SEPARATE STORM

SEWER SYSTEM

Columbia.

The

Permit

authorizes

storm

water

discharges

from

the

District ofColumbia’s municipal separate stormsewer system (“MS4”).2

On August

II,

2000,

Friends of the

Earth

and

Defenders of Wildlife

(“Petitioners”) timely filed a petition requesting that the Environmental

Appeals Board review

the Permit (the “Petition”).3

The Petition argues

that

the

Region

clearly

erred

or

abused

its

discretion

in

setting

the

Permit’s conditions.

The Region has

fileda responseto the Petition,

and

both parties have filed supplemental reply briefs.

As discussed below, we have, based on our consideration of the

issues presented,

determined

that

a

number of issues

warrant

further

consideration by

the

Region.

Thus, we remand

the

Permit,

in part,

for

further proceedings consistent with this decision.

I.

BACKGROUND

A.

Factual

and Procedural Background

The MS4 that

is owned and operated by

the Government of the

District

of Columbia (the

“District”)

discharges

storm water

into

the

Potomac

and

Anacostia

Rivers

and

their tributaries.

Pursuant

to

the

requirements

for

system-wide

MS4

permitting

set

forth

in

CWA

§

402(p)(4) and the implementing regulations at 40 C.F.R.

§

122.26(d),

2Under CWA

§

402@)

and 40 C.F.R.

§

122.26,

an NPDES

permit is required

for

M54s serving

populations of 250,000

or more (large

systems),

and

those

serving

populations of

more

than

100,000

but

less

than

250,000

(medium

systems).

It

is

undisputed that the District’s MS4 is

a large

system.

3The Petitioners originally filed

a timely request for an evidentiary hearing with

the

Regional

Hearing

Clerk.

However,

on

May

IS,

2000,

EPA published

a

final rule

modi~ting,

among

other things, the appeal

process for NPDES

permits

set

forth

in

40

C.F.R, part

124.

See

Amendments to

Streamline

the

NPDES

Program

Regulations:

Round

11,65

Fed.

Keg.

30,866

(May

IS,

2000).

This

rule

eliminated

the

previously

existing requirement

that

a party

seek

an

evidentiary hearing before filing

a petition

for

review

with

this

Board.

The

new

rule

granted

certain

petitioners,

including

the

Petitioners

in

this

ease,

until

August

13,

2000,

to

file

a

petition

for

review

with

this

Board.

---

6

GOVERNMENT OF THE

DISTRICT OF COLUMBIA

MUNICIPALSEPARATE STORM

SEWER SYSTEM

the

District

was

required

to

file a two-part

application

for an NPDES

permit

covering

discharges

from

the

District’s

MS4.4

The

District

submitted Part

1

ofthe required NPDES permit application

in July

1991

and

the

Part

2

application

in

1994.

See

Certified

Index

to

the

Administrative Record (“Index”) pts. 1.1 .n & J.3.a.

On July31,

1998, the

District

submitted

revisions

and

updated

materials

for

the

Part

1

application, and, on

November 4,

1998, the District submitted revisions

and updated materials for the

Part

2

application.

Id.

pts.

1.5

-

.6.

The

revised

Part

2

application

also

included

the

District’s

current

Storm

Water Management Plan (“SWMP”).

Thereafter,

the

Region

prepared

a

draft

permit

and,

on

February

20,

1999,

the

Region

provided

public

notice

and

requested

public

comments

on

its

first

draft

permit

for

the

District’s

MS4

discharges.

Index pts. 1.7 -.8.

As part ofthe first public comment period,

the Region conducted a public

hearing on March

29, 1999.

Id.

pt.

1.10.

Subsequently,

the

Region revised

the terms of the

proposed permit

in

response to comments

received from the public, and it issued

a

second

draft

permit

on

October

1,

1999

(the

“Second

Draft

Permit”)

and

requested further public

comments.

Id.

pts.

1.11

-

.12.

At that time,

the

Regionalso issued its response to comments regarding the February

1999

draftpermit

(“Region’s First Response to Comments”).

Id.

pt.

1.17.

On

January

6, 2000,

the District

of Columbia

Department

of

Health (“DCDH”) issued its certification5 that

the conditions set forth in

‘The

permitting

process is described below in Part l.Rofthis decision.

See also

In re

Cityof Irving,

Tex.. Mien. Separate Storm Sewer Sys.,

NPDES

Appeal No. 00-IS,

slip op. at

13-16 (EAB, July

16, 2001),

10 E.A.D.

—.

5A1l NPDES permit applicants must obtain

a certification from the appropriate

state agency validating the permit’s compliancewith the pertinent federal and state water

pollution control

standards.

CWA

§

401(a)(l),

33 U.S.C.

§

134 I(a)(l).

The regulatory

provisions pertaining to state certification provide that EPA may not issue

a pennit until

a certification

is granted

or waived by

the state

in which

the discharge originates,

40

C.F.R.

§

124.53(a).

The regulations furtheradd that

‘when certification is required

*

*

no

final

permit

shall

be

issued

*

*

unless

the

final

permit

incorporates

the

(continued...)

---

GOVERNMENT OF THE

DISTRICT OFCOLUMBIA

7

MUNICIPAL SEPARATE STORM SEWER SYSTEM

the second draft

pennit

would

comply

with the District’s water quality

standards,

approved

water

quality

management

plans

and

District

monitoring requirements.

Id.

pt.

I.15.a.

On April

19,

2000,

the Region

issued

the

final

Permit and fact

sheet.

Id.

pt.

1.20.

The

Region

also

issued

its

summary ofthe comments on the second

draft pennit and the

Region’s responses to those comments (“Region’s Second Response to

Comments”).

Id.

pt.

1.18.

On

May

25,

2000,

the

Petitioners

filed

a

request

for

an

evidentiary hearing

pursuant to the regulations governing

the NPDES

programat that time.

On July 14,2000,

the Region returned Petitioner’s

Request for Evidentiary Hearing and notified Petitionersof their rightto

file an appeal

with the Board under changes made to the NPDES permit

appeals process that

became effective

on

June

14,

2000.6

Thereafter,

Petitioners timely filed the

Petition with the Board

on

August Il, 2000.

The Petition

incorporates the

May 25, 2000

request for an evidentiary

hearing

as stating the

basis of the Petitioners’

objections

to the

Permit.

The

Petitioners

have

grouped

their

arguments

in

nine

categories.

(Throughout this decision, we will generally follow the Petitioners’

lead

and considerthe arguments grouped in categories identified by the

issue

number used in the Petition

—

we will summarize these categories below

in Part

I.C.)

The Region filed

a response to

the Petition.

See

Region

Ill’s

Response to Petition for Review (Sept. 28,2000) (“Region’s Response”).

The Region’s

Response generally

argues

that

the Petitioners

have

not

shown that their Petition should be granted.

In one respect,however, the

Region

states

that

it withdraws a portion

of the

Permit in response

to

Petitioners’ issue number eight (thisissue, as described more fully below,

relates to whether the Permit improperly allows amendments or changes

without

requiring

the

formal

procedures

contemplated

by

the

regulations).

‘(continued)

requirements specified

in

the certification.”

40 C.F.R.

§

124.55(a).

siijn’u

note

3.

---

8

GOVERNMENT OF THE

DISTRICT OF COLUMBIA

MUNICIPAL SEPARATE

STORM SEWER SYSTEM

Subsequently,

on

January

12,

2001,

the

Region

reissued

the

withdrawn portion of the Permitwith several

amendments.

Thereafter,

the Petitionersfiled a petition requesting review ofthe amendments to the

Permit and they requested that this second petition be consolidated with

their

original

Petition.

See

Petition

for

Review

and

Motion

to

Consolidate

(Feb.

2, 200l).~ The

Petitioners

also

filed supplemental

briefing concerning issue number eight from their original Petition.

See

Supplemental

Reply Based on Intervening Permit Modification (Feb. 2,

2001).

The Region has

responded to the Petitioners’

second petition.

More recently, on December

18, 2001, the Board held

oral argument on

several of the issues raised in this case.

B.

Statutory and

Regulatory Background

The CWA, which was enacted by Congress in 1972, prohibits the

discharge of any

pollutant to waters

of the

United

States from

a point

source

unless the discharge is

authorized by an NPDES permit.

Section

402(a)(l) of the CWA authorizes

the Administrator

to issue permits for

the discharge ofpollutants into navigable waters ofthe United States.

33

U.S.C.

§

l342(a)(l).

Section 402(a)(2) ofthe CWA states that the “Administrator shall

prescribe

conditions

for such

permits

to

assure

compliance

with

the

requirements of’ section 402(a)(l).

A requirement of section 402(a)(1)

is

that

the permitted

discharges must

comply

with

section

301

of

the

CWA, 33

U.S.C.

§

1311.

Section

301

requires,

among other

things,

achievement of”any more stringent limitation, includingthose necessary

to meet water quality standards

*

*

*

established pursuant to any

State

law or regulation

*

*

~“

33

U.S.C.

§

131 1(b)( fl(C).

The

statutory

requirement

of CWA

§

301(b)(l)(C)

to protect

water

quality

standards

has

been

implemented

through

a

variety

of

‘The

Petitioners’ original petition was assigned EAB docket number NPDES

00-14 and their second petition

was assigned EAB docket number NPDLS 01-09.

The

Petitioners’

motion

to consolidate

their second

petition

for

review

with

their

original

Petition

is hereby granted.

---

GOVERNMENT OFTHE

DISTRICT OF COLUMBIA

9

MUNICIPAL SEPARATE STORM SEWER

SYSTEM

regulatory provisions.

For

example, long-standing

Agency regulations

prohibit the issuance of a permit “when imposition of conditions cannot

ensure

compliance

withthe applicable

water quality requirements of all

affected states.” 40

C.F.R.

§

122.4(d)

(emphasis

added).

In addition,

section 122.44(d) provides that the permit must contain effluent limits as

necessary to protect water quality standards.

Id.

§

122.44(d)(I).

Long-

standing

Agency

regulations

have

also

authorized

the

use of

“best

management practices” (“BMPs”)

to control

or abate

the discharge of

pollutants

in

a

variety

of circumstances

including

when

“numeric

effluent

limitations are

infeasible.”

Id.

§

122.44(k).

Although

EPA

initially

attempted to exempt

municipal

storm

sewer

systems

from

the

requirement to

obtain

an

NPDES permit

for

discharge ofpollutants into navigable waters of the United

States,t in the

Water Quality

Act of

1987

(“WQA”),

Congress amended the

CWA to

specifically

cover

storm

water

discharges

from

conveyances

such

as

MS4s.

Among

other

amendments,

the

WQA

added

section

‘102(p)

governing permitting for MS4s and certain other storm water

systems.

In

particular,

Congress

required

EPA

to

establish

no

later

than

February

4,

1989,

regulations

governing

the

permit

application

requirements forstorm water discharges fromMS4s serving a population

of

more

than

250,000,

and

Congress

required

applications

for

such

permits

tobe filed no laterthan February 4,

1990.

CWA

§

402(p)(4)(A),

33 U.S.C.

§

I 342(~p)(4)(A).Congress also stated insection 4O2(p)(3) that

permits

from MS4s

“shall require

controls to reduce

the

discharge of

pollutants

to

the

maximum extent practicable,

including management

practices

* * *

and such other provisions as the Administrator or the State

determines

appropriate

for

the

control

of

such

pollutants.”

CWA

§

402@)(3),

33

U.S.C.

§

L342(p)(3).

EPA

initially

promulgated

regulations

implementing

section

402(p) of the CWA in 1990.

These regulations, commonly referred to as

‘That exemption was rejected by the U.S. Court ofAppeals for the District of

Columbia.

See

NRDC r~

(‘osile.

568

F.2d

1369,

1377 (D.C. Cir.

1977),

This

histoty is

described

more

fully

in

itt

re

Cliv ofirting,

Tex.

Mun. Sepurale Slotni Sewer S~wtc’,,,.

NPDES

Appeal No.

00-IS, slip.

op.

at 9(EAI3, July

16,

2001),

10 FAD.

---

10

GOVERNMENT OF THE DISTRICT OF COLUMBIA

MUNICIPAL SEPARATE STORM

SEWER SYSTEM

“Phase

I”

regulations,

established

the

NPDES

permit

application

requirements

for storm water discharges

associated

with

industrial

activity

and

discharges from

large

and

medium MS4s.

See

National

PollutionDischarge Elimination System Permit Application Regulations

for

Storm

Water

Discharges,

55

Fed.

Reg.

47,990

(Nov.

16,

1990)

(codified

at

40

C.F.R.

Pt.

122).

In

the

preamble

to

the

Phase

I

regulations,

the

Agency

explained

that

the

MS4

permitting

program

requires a substantial amount of flexibility butnot “to such an extent that

all

municipalities

do

not

face essentially

the

same responsibilities and

commitments

for

achieving

the

goals

of

the

CWA.”

55

Fed.

Reg.

at 48,038.

To achieve these ends, the Phase I regulations made a number

of changes

to the existing NPDES regulations

to allow MS4s to focus

less on end-of-pipe technology-based controls

and to

focus more on the

development of site-specific SWMPs.

In

the

Phase

I rulemaking,

the

Agency

established

a

two-part

permit

application

process

for

the

development

of MS4

permits

that

would

assist permittees in developing

SWMPs capable of meeting

the

statutory

and

regulatory

goals.

Id.

The

two

parts

of

the

permit

application

cover six general

elements

necessary

for

an MS4

permit:

adequate legal authority,source identification, discharge characterization,

proposedSWMP, assessment ofcontrols, and fiscalanalysis.

See

Office

of Water,

U.S.

EPA, EPA

833-B-92-002,

Guidance

Manual for

the

Preparation of

Part 2 ofthe NPDES Permit Applicationfor Discharges

from

Municipal

Separate Storm

Sewer

Systems

at

2-I

to

2-4

(1992)

(hereinafter “Part

2

Guidance Manual”);

see also

In re

City ofIrving.

Tex.

Mun. Separate Storm Sewer Sys.,

NPDES Appeal No. 00-18, slip.

op. at

13-15 (EAB, July

16, 2001),

10

E.A.D.

—

(describing in greater

detail the elements addressing adequate legal authority, proposed SWMP,

and assessment of controls).

As part of a subsequent rulemaking, commonly referred to as the

“Phase II” regulations, section

122.44(k)

was amended to authorize use

ofBMPs not only when“numeric

effluent limitationsare infeasible” as

was previously

authorized, but

also

when “authorized

under section

402(p)

of the

CWA

for

the

control

of storm

water

discharges.”

See

National

Pollutant

Discharge

Elimination

System

—

Regulations

for

---

GOVERNMENT OF THE

DISTRICT OF COLUMBIA

11

MUNICIPAL SEPARATE

STORM SEWER

SYSTEM

Revision

of

the

Water Pollution

Control

Program

Addressing

Storm

Water Discharges, 64 Fed. Reg. 68,722,68,847 (Dec. 8, 1999) (codified

at

40 C.F.R.

§

122.44(k)(2)-(3)).

C.

Summary ofIssues Raised in the Petitions

As

noted, Petitioners

identi~’their bases for requesting review

of the Permit in nine categories,

which were separately numbered intheir

original

Petition

as

issues

one

through

nine.

We

will

follow

this

numbering system

in

our discussion

since

the parties

have used

it

to

identi& their arguments. The following is a briefsummary of these nine

issues, or categories of arguments, raised by Petitioners:

I.

Compliance

with

Water

quality

Standards.

Under

this

heading, the Petitioners raise several arguments pertaining to whether the

Permit is adequately protective of the

District’s water quality standards,

In

essence,

Petitioners

argue

that

the

Permit

does

not

have

effluent

limitations

that

assure

compliance

with

the

District’s

water

quality

standards.

Petition at

3.

The Region, in contrast,

argues that the Permit

does protect water quality standards.

Region’s Response at

10;

see also

Transcript of Oral Argument at 29, 32-33 (Dec.

18, 2001) (hereinafter

“Tr. at

“)~9

‘l’he

Region also

quotes

an

argument

it made in

its

response

to comments

where the Region

stated that

the

Permit

is not necessarily required to assure compliance

with state water

quality standards but

need only

“control the discharge of pollutants to

meet

such

provisions

EPA

or

the

State

determines

appropriate.”

Region’s

Second

Response

to Comments

at

10,

quoted

in

Region’s Response

at

9.

In

support

of this

argument

the Region

explained

that the Ninth

Circuit Court of Appeals

has

held

that

“EPA

*

*

$

has

authority to require

less than strict compliance with

state water quality

standards.”

Region’s

Response at

9 (quoting

Defenders

ofWi/d/Ve v. Browner,

191

F.3d

I 159,

1166

(9th

Cir.

1999));

see

u/so

Region’s

Reply

at

7

n.4,

However,

at

oral

argument,

the

Region

slated that,

in

issuing

this

Permit, it

is

not

relying

on

the

Ninth

Circuit’s conclusion that

EPA

has authority to

require

less

than

strict compliance with

state water quality standards.

Tr. at 31.

Specifically, the Region stated that

it intends tIlts

Pennit

to

satisfy water quality

standards..

Tr.

at 32-33.

---

12

GOVERNMENT OFTHE DISTRICT OFCOLUMBIA

MUNICIPAL SEPARATE STORM SEWER SYSTEM

2.

Hickev

Run.

Petitioners argue that the Permit is deficient in

that

(a)

it contains an aggregate numeric effluent

limit for four outfalls

into Hickey Run (which is a tributary of the Anacostia River) and (b)

it

contains

monitoring

requirements

that

the

Petitioners

allege

are

inadequate.

3.

Reductions tothe “Maximum Extent Practicable”.

Under this

heading, Petitioners argue that the Region’s determination that the Permit

will

reduce

storm

water

pollutant

discharges

to

the

maximum

extent

practicable

(“MEP”)

as

required

by

CWA

§

402(p)

was

clearly

erroneous.

4.

Deferral

of Complete

Program.

Under

this

heading,

the

Petitioners raise arguments concerning the Permit’s deferral of the time

for the District to submit implementation and enforcement plans for its

SWMP and concerning the Permit’s deferral of an “upgraded” SWMP.

5.

Failure

to

Require

Compliance

Within

Three

Years.

Petitioners

argue

that

the Permit fails to require

compliance

within the

three-year time period set

forth in CWA

§

402(p)(4).

6.

Storm Water Implementation Plan.

Petitioners argue that the

Permit

in

Part

JII.E

uses

language

allowing

for

a

“cost

benefit

and

affordability” analysis that the Petitionersargue

is contrary to the CWA.

7.

Funding.

Petitioners

raise

several

additional

arguments

concerning the “cost benefit and affordability analysis” under Part

ll1.E

of the Permit as it pertains to funding of the implementation plan.

8.

Modifications.

The

Petitioners

argued

in

their

original

Petition

that

the

Permit

“illegally

authorizes

numerous

substantive

changes

in

permit

requirements

without

a

formal

permit

revision.”

Petition

at

9.

In

its

response,

the Region

stated that

it

withdraws

the

provisions ofthe Permit that are affected by Petitioners’ arguments inthis

category, and

the

Region

proposed amendments to

address

this issue.

Response at

25.

After the Region issued

its amendments on January

12,

2001, the

Petitioners filed both a petition for review of the amendments

---

GOVERNMENT OFTHE

DISTRICT OF COLUMBIA

13

MUNICIPAL SEPARATE STORM SEWER SYSTEM

and a supplemental

brief,

both ofwhich

argue

that

the modifications

of

the Permit fail to address most of the concerns raised by

Petitioners

in

their original Petition.

9.

Waivers

and

Exemotions.

The

Petitioners

argue

that

the

District’s storm waterregulations that are incorporated into the Permit by

reference

require the granting ofvarious waivers or exemptions that

the

Petitioners argue

are in conflict with the CWA and EPA rules.

Each of these arguments

will

be

separately

considered

in the

discussion that follows.

We begin, however, with a brief discussion of

the standards

we use in evaluating petitions filed under 40

C.F.R. pan

124

for review of NPDES permits.

II.

DISCUSSION

A.

Standard ofReview

The Board generally will not grant review ofpetitions filed under

40

C.F.R.

§

124.19(a), unless it appears from the petition that the permit

condition that is at issue is based on a clearly erroneous finding of fact or

conclusion of law or involves an important policy

consideration which

the Board,

in

its

discretion,

should

review.bo

40

C.F.R.

§

124.19(a)

0prior to the amendments to streamline the NPDES regulations

(seesupra

note

3), the rules governing petitions for review ofNPDES permitting decisions were set out

in

40 C.E.R.

§

124.91.

These

rules did not provide

for an appeal directly to the

Board.

Instead,

a

person

seeking review of an NPDES permitting decision was required

to first

request

an evidentiary hearing before the Regional Administrator.

In re CityofMoscow.

Idaho.

NPDES Appeal No. 00-10, slip op. at

9 n.20 (EAB, July 27,2001),

10 E.A.D.

The outcome of the request

for an evidentiary hearing or

the outcome ofan evidentiary

hearing

--

if the request was granted

--

was

then appealable

to the

Board.

However,

under

those

rules

there

was

no

review

as

a

mailer

of

right

from

the

Regional

Administrator’s decision or the denial of an evidentiary

hearing.

See In re City ofPot:

S.

Joe,

7 E.A.D.

275, 282 (EAB

1997);

In reF/a Pulp & PaperAss

ti,

6 E.A.D.

49,51

(EAB

1995);

In re J&L Specialty Prods,

C’orp..

5

E.A.D. 31,41

(EAB

1994).

Petitions

for review of NPDES permits are

now regulated by 40 C.F.R.

§

124.19,

as amended by

65

Fed.

Reg.

30,886,

30,911 (May

IS,

2000).

Even

though

the regulations

governing

(continued-

---

14

GOVERNMENTOF THE DISTRICT OF COLUMBIA

MUNICIPAL SEPARATE STORM SEWER SYSTEM

(2001);

seealso

City

ofMoscow,

Idaho,

NPDES Appeal No. 00-10,

slip

op.

at

8-9

(EAB,

July

27,

2001),

10

E.A.D.

—

(hereinafter

“Moscow

MS4”);

In

re

City

of Irving,

Ta.

Mun.

Separate

Storm

Sewer

Sys..

NPDES

Appeal

No.

00-18,

slip

op.

at

16

(EAB,

July

16,

2001),

10

E.A.D.

—

(hereinafter

“Irving M54”).

Whilethe

Board

has

broad power

to review decisions under section 124.19, the Agency intended this power

to be exercised “only sparingly.”

45

Fed. Reg. 33,290,

33,412 (May

19,

1980);

see also Moscow MS4,

slip

op.

at 9,

10

E.A.D.

_;

In re Rohm &

I-laos

Co.,

RCRA Appeal No. 98-2,

slip op.

at

7

(EAB, Oct.

5, 2000),

9 E.A.D.

_;

In re AESP.R. L.P.,

PSD Appeal Nos. 98-29 to 98-31, slip

op. at

7 (EAB, May 27, 1999),

8

E.A.D.

,

aff‘d sub nom. Sur Contra

La

Contaminacion v.

EPA,

202

F.3d

443

(1st Cir. 2000).

Agency

policy

favors final adjudication of most permits at

the

regional level.

45

Fed. Reg. at

33,412;

see also

Moscow MS4,

slip

op.

at 9,

10

E.A.D.

;

Irving MS4,

slip op. at

16,

10

E.A.D.

_;

In re New

England

Plating

Co.,

NPDES

Appeal No.

00-07,

slip op.

at

7

(EAB,

Mar.

29,

2001),

9

E.A.D.

;

In

re

Town

of Ashland

Wastewater

Treatment

Facility,

NPDES

Appeal No.

00-15,

slip op. at

9-10

(EAB,

Feb.

26, 2001),

9

E.A.D.

_;

In re

Town ofHopedale,

Bd. of Water &

Sewer

Comm’rs,

NPDES

Appeal

No.

00-4,

slip

op.

8-9

n.l3

(EAB,

Feb.

13,

2001),

9

E.A.D.

—.

On

appeal

to the

Board, the petitioner

bears

the burden of demonstrating

that

review

is warranted.

Moscow

MS4,

slip

op.

at

9,

10

E.A.D.

_;

see

also AES P.R.,

slip

op.

at

7,

8

E.A.D.

_;

In reHaw. Elec. Light Co.,

PSD Appeal Nos. 97-15 to 97-23,

slip

op.

at

8

(EAB,

Nov.

25,

1998),

8

E.A.D.

In

re

Kawaihae

Cogeneration Project,

7

E.A.D.

107,

114

(EAB

1997).”

“C

continued)

NPDES

appeals changed

in

the

sense

that

the

evidentiary

hearing

provisions

were

eliminated, the standard of review

has not changed.

Moscow MS4,

slip op. at

9

n.20,

/0

FAD.

(citing

In re Town ofAs/i/and Wastewater Treatment Facility,

NPDES Appeal

No.00-IS,

slip op.

at

9 n.j

I

(EAB, Feb.

26, 200!),

9 E.A.D.

,~.

“Standing to appeal

a

final permit

determination

is limited

under 40 C.F.K

§

124.19

to those

persons

“who filed

comments on Ithel

draft permit or participated

in

the

public

hearing.”

Any

person

who failed

to comment

or participatc

in

the

public

(continued

~)

---

GOVERNMENT OF THE

DISTRICT OF COLUMBIA

IS

MUNICIPAL SEPARATE STORM SEWER SYSTEM

Persons seeking review must demonstrate to the Board,

among

other things,

“that

any

issues being raised were raised during the public

comment period to the extent required by these

regulations

*

* i.”

40

C.F.R.

§

124.19(a) (2001).

Participation

during the

comment period

must conform with

the requirements of section

124.13, which requires

that

all

reasonably

ascertainable

issues

and

all

reasonably

available

arguments supporting a petitioner’s position be raised by

the close of the

public

comment period.

40

C.F.R.

§

124.13

(2001);

see also,

Moscow

M54,

slip op. at

9,

10

E.A.D.

;

In re

New

England Plating,

NPDES

Appeal No. 00-7,

slip op. at 7 (EAB, Mar. 29,2001), 9 E.A.D.

;

In

re

City

ofPhoenix,

Ariz.

Squaw Peak

&

Deer

Valley

Water

Treatment

Plants,

NPDES Appeal No. 99-2, slip

op. at

14 (EAB,

Nov.

1,2000), 9

E.A.D.

—

(“Those persons seeking to

appeal

based on

their status

as

commenters or public hearing participants must also demonstrate to the

Board,

inter alia,

‘that any issues

being raised were raised

during

the

public

comment

period

(including

any

public

hearing)

to

the

extent

required by

these regulations

*

*

*.“).

The

Board traditionally

assigns a heavy

burden to petitioners

seeking review of issues that are essentially technical in nature.

Moscow

MS4,

slip

op.

at

9,

10

E.A.D.

;

see

also

In

re

Town of Ashland

Wastewater Treatment Facility,

NPDES

Appeal No. 00-IS, slip op. at 10

(EAB, Feb.

26,

2001), 9

E.A.D.

;

In

re NE Hub

Partners,

L.P.,

7

E.A.D.

561, 567 (EAB

1998),petitionfor review denied sub nom. Penn

Fuel Gas, Inc.

v. EPA,

185 F.3d 862 (3rd Cir.

1999).

When the Board

is

presented with technical

issues we look to determine whether the record

demonstrates that

the Region

duly considered

the issues raised

in the

comments

and whether the approach ultimately adopted by

the Region

is rational in light of all the information in the record.

NEHub,

7 E.A.D.

at

568.

If we

are

satisfied

that

the Region

gave

due consideration

to

comments received and adopted an approach in the final permit decision

‘‘C.

continued)

hearing on the draft permit

can appeal “only to the extent of the changes from the dra~

to the final

permit

decision.”

40 C.F.R.

§

124.19(a) (200!);

see/nrc

City oJ’f’I,ocnrr,

An;. Squaw Peak & Deer

Va/let, Waler Treatment P/ants,

NPDES

Appeal

No, 99-2. slip

op.

at

14 (EAB, Nov.

1,2000),

9

E.A.D.

—.

---

16

GOVERNMENT OF THE DISTRICT OF COLUMBIA

MUNICIPALSEPARATE

STORM SEWER SYSTEM

that

is rational and supportable,

we

typically

will defer to

the Region’s

determination.

Id.

For the

following

reasons,

we

conclude

that

Petitioners

have

shown that, in several respects, the Region’s decision to issue the Permit

was deficient under these standards.

Accordingly, we remand the Permit

for further proceedings consistent

with this decision.

B.

Petitioners

‘

Issue One:

WaterQuality Standards

The

Permit

contains

one

numeric

effluent

limitation

for

discharges

from

four

outfalls

into

1-lickey

Run.

Other

than

this

one

numeric

discharge

limit,

the

Permit

designates

a

variety

of

best

management

practices,

or BMPs, to control

the discharge of pollutants

from the District’s MS4.

The Petitioners raise threearguments objecting

to the Region’s approval of the Permit conditions establishing BMPs

to

control

pollutant discharges

and

ensure compliance

with the District’s

water

quality

standards.

First,

the

Petitioners

argue

that

the

Region

should have established numeric limits for most of the system’s outfalls,

rather than

relying

on

BMPs to control

pollutant discharges.

Petition

at

2-3.

Specifically,

the

Petitioners

argue

that

the

Region

made

no

showingthat numeric limits are infeasibleand that the Region should set

the

numeric

limits

equal

to

the

numeric

water

quality

standards

applicable to the receiving waters.

Petition at 4; Petitioners’

ReplyBrief

at

3.

Second, Petitioners argue

that

the Region should,

at a minimum,

have established narrative limits.

Petition at 4.

Finally, Petitioners argue

that the Region failed to make the requisite determination that the chosen

BMPs

will ensure

protection of

the District’s

watçr quality

standards.

Petition at

5;

Petitioners’ Reply at 4.

Before

turning

to

these

arguments,

we

must

first

address

a

number of issues by way of background, some of which were treated by

the parties’

briefs as being

in dispute, but which

the

parties

conceded

during oral argument.

As noted above, section 301 of the CWA requires,

among other things, that

NPDES

permits

contain

“any

more

stringent

limitation,

including

those

necessary

to

meet

water

quality

standards

*

*

*

established

pursuant

to any

State

law or

regulation

*

*

s.”

33

---

GOVERNMENT OF THE

DISTRICT OF COLUMBIA

17

MUNICIPAL SEPARATE STORM SEWER SYSTEM

U.S.C.

§

131 l(b)(l)(C).

This

statutory

requirement

has

been

implemented, inpart, through

long-standing regulations that prohibit the

issuance of an NPDES permit

“when

imposition of conditions cannot

ensure

compliance

with the applicable water quality requirements ofall

affected

states.”

40

C.F.R.

§

122.4(d) (2001)

(emphasis added.).

In

addition,

section

122.44(d)

provides

that

“the

permit

must

contain

effluent

limits” for a particular pollutant “when the permitting authority

determines

*

* *

that a discharge causes, has the reasonable potential

to

cause,

or

contributes

to

an

in-stream

excursion above

the

allowable

ambient

concentration of a state

numeric

criteria within a

State

water

quality standard for an individual pollutant.”

Id.

§

122.44(d)(l)(iii).

In their filings

with the Board, Petitioners

maintain

that, based

on evidence inthe record, the Permit is required by 40 C.F.R.

§

122.44(d)

to

contain

effluent

limitations

that

protect

water

quality

standards.

Petition

at 3

(citing

1998

Water Quality Report at 48, app.

D at

3-75).

Specifically, Petitioners argue that information submitted by

the District

with

its

application

for

the

Permit

shows

that

discharges

from

the

District’s

MS4

causes,

has

the

reasonable

potential

to

cause,

or

contributes

to

in-stream

excursions

above

the

allowable

ambient

concentrations ofthe District’s

numeric water quality standards, thereby

triggering

the

requirements of section

122.44(d)(l).

They explain

as

follows:

The monitoring data submitted with D.C’s MS4

application confirms that stormsewer discharges present

major threats

to

surface

water

quality

in

the

District.

The data shows

that such discharges repeatedly exceed

the District’s water quality standards for fecal coliform

bacteria,

which are 200/100 mL max. 30-day mean for

Class A waters, and

1,000/100 mL for Class B waters.

21

DCMR

1104.6.

In

almost

all

of the

storm

water

sampling

reported

in

the

Part

2

application,

fecal

coliform counts exceeded one orboth ofthese standards,

often by wide margins. Part

2 application, Tables4.3.4-

3

to -14; 21

DCMR

1104.6.

At least

one discharge also

---

18

GOVERNMENT OF THE DISTRICT OFCOLUMBIA

MUNICIPAL SEPARATE STORM SEWER SYSTEM

exceeded

arsenic

criteria

for

fisheries.

Id.,

Part

2

application, table

4.3.4-10.

*

*

*

Under these

circumstances,

the

Act

and

EPA

rules require that the permit include effluent

limitations

to assure compliance withwater quality standards.

*

* *

Tihe

District’s

1998 Water Quality Report specifically

identifies storm water discharges as known or suspected

contributors to violations of water quality standards for

specific

pollutants

in

waters

throughout

the

District.

Water

Quality Report at 48, Appendix D at

3-75.

For a

number of

waters,

the

report

lists

urban runofV’storm

sewers

as the

only source of impairment.

Id.

Petition

at 3.

The Region does not argue that this evidence cited by Petitioners

is insufficient to trigger the requirements of section

122.44(d)(l), which

as noted

requires “effluent limits”

if discharges

cause

or contribute to

violations of water quality standards.

Instead, the Region maintains that

section

122.44(d)(l) does notrequire that “effluent limits” be expressed

as numeric limits.

The Region argues

that BMPs

are

a type of effluent

limit and

that

it

properly explained the basis

for its decision to use BMPs

instead of numeric effluent limits.

Specifically, the Region explained in

the Fact Sheet that “In accordance with40 CFR

§

122.44(k),

the Region

has required a seriesof BMPs,

inthe form ofa comprehensive SWMP,

in lieu of numeric limitations.”

Fact

Sheet at

7.

The Region explained

further

in the Region’s

First Response to Comments that “derivation

of

water quality-based limits by

application of the methods contained in the

Technical

Support Document for Water Quality-based Toxics Control

is

notfeasible

at this time because insufficient information is known about

the magnitude, variation, and frequency of the flow rate of boththe river

and

storm

discharges.”

Region’s

First

Response

to

Comments

at

7

(emphasis added);

see a/lw

Region’s Response at 9.

The

notion

that

effluent

limits

may

be

expressed

as

either

numeric

limits or as

some

other restriction that

limits the discharge

of

---

GOVERNMENT OF THE DISTRICT OFCOLUMBIA

19

MUNICIPAL SEPARATE STORM

SEWER SYSTEM

pollutants, such as BMPs, has been stated in

EPA

guidance and has been

endorsed

by

this

Board.

In

essence,

because

the

term

“effluent

limitation”

is defined

to

mean any

restriction

on

quantities,

rates,

and

concentrations

of

pollutants,’2

effluent

limits

required

by

section

l22.44(d)(l) therefore may be expressed as either numeric

limits or as

BMPs, both of which

serve to limitquantities, rates or concentrations of

pollutants.

In reAriz.

Mun. Storm WaterNPDES

Permits,

7 E.A.D.

646,

658-59

(EAB

1988)

(hereinafter

“Arizona

Municipal”)’3

(citing

Questions

and

Answers

Regarding

Implementation

of

an

Interim

Permitting

Approach

for Water Quality-Based Effluent

Limitations

in

Storm

Water Permits,

61

Fed.

Reg.

57,425,

57,426

(Nov.

6.

1996)).

Initially, the Petitioners argued

that

the Region’s

failure to use numeric

limits

violated

section

301

of the CWA and

40 C.F.R.

§~

122.4(d)

&

122.44(d).

Petition at 2-3.

At oral argument, Petitioners also stated that

where

the

water

quality

standards

are

numeric

standards,

the

“only

certain

method

to

assure

compliance

with standards

is

with

numeric

effluent

limits.”

Tr. at 6.

The Petitioners, however, also acknowledged

during oral argument that BMPs are a form ofeffluent limitation, Tr. at 7,

and that BMPs may be used to satisf~’

water quality-based requirements.

Tr.

at

914

Given

this

concession,

we do

not need

to revisit our prior

determination in

Arizona Municipal

that, as a general proposition,

BMPs

are a form ofeffluent limit that may in appropriate circumstances be used

to satisfy the requirements ofsection 122.44(d) ofthe regulations in order

to resolve the dispute at hand.

“The term “effluent limitation”

is defined by

the

regulations to mean

“any

restriction

*

on quantities, discharge rates, and concentrations of ‘pollutants’ which

are ‘discharged’

from ‘point sources’ into ‘waters ofthe United States,” thewaters of a

‘contiguous zone,’

or the ocean.”

40 C.F.R.

§

122.2 (2001).

‘3Our holding

in

Arizona Municipal

was affirmed by the Ninth Circuit Court

ofAppeal~.

See Defendersof Wild!jfe

v.

Browner.

191

E.3d 1159(9th Cir.

1999),

afg

on oilier grounds In re An:.

Mun, Siorm Waler NPDES Permits.

7

E.A.D.

646 (EAB

1988).

“However, the retitioncrs consistently argued that ifthe Region chooses BMPs

to

meet water quality-based standards, the Region “would still

have to show that they

the

BMF’sl arc going to

do the job.’~~Fr.

at

10,

This

issue

is discussed

further below.

---

20

GOVERNMENT OF THE DISTRICT OF COLUMBIA

MUNICIPAL SEPARATE STORM

SEWER SYSTEM

With respect to whether deploymentofBMPs was inappropriate

under

the

circumstances

of

this

case,

we

note

that

the

regulations

specifically

authorize

the

use of BMPs

in

two

potentially

applicable

circumstances.

First, section 122.44(k)(2), as added in

1999, authorizes

BMPs

when

“authorized

under section

402Q’)

of the

CWA

for the

control of storm water discharges.”

40

C.F.R.

§

122.44(k)(2) (2001).

Second, section

1 22.44(k)(3) authorizes BMPs when“numeric

effluent

limitations

are

infeasible.”

Id.

§

122.44(k)(3);

see

also

Arizona

Municipal,

7

E.A.D.

at 656

(“Under the regulations, best management

practices

*

*

*

may

be

incorporated

into storm

water

permits

where

numeric limitations

are infeasible.”).

In the present case,

the Region

statedat oral argument that

it did not base its decision to approve liMPs

on

the

new

40

C.F.R.

§

122.44(k)(2),

which

was

added

in

the

1999

amendments’5

and

which

allows

liMPs

when

authorized

by

CWA

§

402(p).

Tr. at

48.

Instead, the Region determined that

numeric limits

were notfeasible, which is the criterion for use of BMPs under 40 C.F.R.

§

l22.44(k)(3).

Specifically,

as noted

above, the Region explained that

“djerivation

of water quality-based limits by application ofthe methods

contained in the Technical Support Document for Water Quality-based

Toxics

Control

is

not

feasible

at

this

time

because

insufficient

information

is known

about

the magnitude, variation,

and frequency of

the flow

rate of both the

river and storm discharges.”

Region’s

First

Response to Comments

at

7

(emphasis added).

This

brings

us

to

the

issues

that

remain

in

dispute.

The

Petitionersargue first that “the Region has made no showingthat numeric

limitations

are

infeasible

*

*

*

.

The

Region

did

not

even

attempt

development of numeric effluent

limits for discharges

to waters of the

District

other

than

1-Tickey

Run.”

Petition

at

4.

On

this

point,

the

Petitioners

elaborate

further

in

their

Reply

Brief that,

where

mixing

“See National

Pollutant

Discharge

Elimination System

‘—

Regulations tbr

Revision of the

Water Pollution Control

Program Addressing Stonii Water

Discharges,

64

FedS

keg.

68,722, 68,847

(Dcc.

8.

1999).

---

GOVERNMENT OFTHE

DISTRICT OF COLUMBIA

21

MUNICIPAL SEPARATE STORM SEWER SYSTEM

zones’6 have not been established (as is the case here for all

outfalls other

those

into

Flickey

Run),

“under

long-established

EPA

guidance

and

practice,

effluent

limits

must

be

set

to

assure

compliance

with

water

quality standards at the pointofdischarge.” Petitioners’ Reply Briefat 3.

In other words, Petitioners argue that the Agency can easily set a numeric

limit for each outfall that

is equal to the numeric water quality standard

for

the

receiving

water.

Presumably,

Petitioners

reason

that

the

discharges will not cause

or contribute to an in-stream excursion

above

an allowable standard if the discharges, themselves, must be below

the

applicable

standard.

Petitioners

argue

further

that

“this

is

not

an

exercise requiring any information beyond the water quality criterta set

in

D.C. ‘s

published

water quality

standards.”

Id.

These

arguments,

however, do not persuade us that review of the Permit should be granted

on

this ground.

In

Arizona Municipal,

we considered

a challenge to the permit

issuer’s determination pursuant to what is now section

1 22.44(k)(3)”

that

setting numeric

effluent

limits

was not

feasible

for an

MS4

system’s

discharges.

Arizona Municipal,

7

E.A.D.

at 656.

In that case, the permit

issuer made its determination of infeasibility because, due to “the unique

“Briefly

stated,

a mixing zone

is “an allocated impact zone in the receiving

water which may include a small

area or volume where acute criteria can

be

exceeded

provided there

is no lethality (zone of

initial dilution), and

a larger area or volume

where

chronicwater quality criteria can be exceeded ifthe designated use ofthewater segment

as a whole is not impaired as a result of the mixing zone.”

Guidance

on Application

of

State

Mixing Zone Policies

in

EPA-Issued P/PDES Permits,

(Aug.

1996).

“The current

section

l22.44(kX3)

was

section

l22.44(k)(2)

prior to

the

amendmentofsection

122.44(k)

in

1999.

As previously discussed, the 1999 amendments

added a new section 122.44(k)(2), allowing use of BMPs when authorized under section

4O2(p) of the Act.

The old section

l22.44(k)(2) shifted

at that

time to become the new

and current section 122.44(k)(3).

See

National

Pollutant Discharge Elimination System

—

Regulations

for Revision of the

Water

Pollution

Control

Program Addressing

Storm

Water Discharges, 64

Fed. Reg. 68,722,

68,847 (Dec.

8,

1999).

Accordingly, at the time

of the

Arizona

Municipal

decision,

the

regulatory provision

authorizing

use of

BMPs

when

numeric

limits are

infeasible

was

set

forth

in

section

I 22.44(k)(2), which

is

the

regulation

cited

in the

Arizona

Municipal

decision.

See

Arizona

Municipal,

7 l3,A ft

at 656,

---

22

GOVERNMENTOF THE DISTRICT OF COLUMBIA

MUNICIPAL SEPARATE STORM

SEWER SYSTEM

nature of

storm

water discharges in the arid Arizona environment and the

uncertainties

associated

with

the

environmental

effects

of short-term,

periodic discharges,

‘it

would be premature to include in the final permit

any specific toxicity-related effluent

limitations

*

*

s.”

Id.

at 657.

In

considering arguments that this determination was insufficient, we noted

that

the

permit

issuer’s

reasons

were

consistent

with

Agency

policy

documents

that

“recognize

that

permitting

agencies

frequently

lack

adequate

information

to

establish

appropriate

numeric

water

quality-

based effluent limitations, and provide

for the inclusion of BMPs

until

such

information

becomes

available.”

Id.

at

658.

The

petitioners

challenged the permit issuer’s decision by arguing that the permit issuer

had an affirmative dutyto set numeric limits. We rejected this argument,

stating

that

“the

petitioners

have

failed

to

convince

us

that

this

determination was in any way unlawful or inappropriate.”

Id.

at 659.

In the present case, the Petitioners have made many of the

same

generalized

challenges

to the Region’s permitting decision as those

we

considered and rejected in

Arizona

Municipal,

asserting that the Region

has an affirmative duty to set

numeric limits.

In keeping with

Arizona

Municipal,

we

find these

general arguments to

be without merit.

The

Petitioners in this case, however, also

rely on a more specific

argument

that

numeric

limits

could

have

been

derived

under

methods

that

the

Petitioners describe as “long-established EPA guidance

and practice.”

Petitioners’

Reply Brief at

3.

As

discussed below,

this more specific

argument must also be rejected in this case because Petitioners failed to

raise it and the cited authority during the public

comment period.

The regulations governing the NPDES permitting program and

review

by

this

Board

require

that

persons

seeking

review

must

demonstrateto the Board “that any issuesbeing raised were raised during

the public comnent period to the extent required by these regulations

*

*

s.”

40

C.F.R.

§

124. 19(a)

(2001);

Moscow MS4,

slip op.

at

10,

10

E.A.D.

—.

The

regulations

provide

further

that

all

reasonably

ascertainable issues and all

reasonably available arguments supporting a

petitioner’s position

must be

raised by

the

close of the public

comment

period.

40 C.F.R.

§

124.13(2001);

see.

e.g., Moscow MS4,

slip op. at

10,

10

E.A.D.

In reNew EnglandPlating,

NPDES Appeal No.00-7, slip

---

GOVERNMENT OF THE DISTRICT OF COLUMBIA

23

MUNICIPAL SEPARATE STORM SEWER SYSTEM

op.

at 7

(EAB, Mar. 29, 2001),

9

E.A.D.

_;

In re

City

of

Phoenix,

Ariz.

Squaw Peak& Deer Valley

Water Treatment Plants,

NPDES Appeal No.

99-2, slip

op.

at

14

(EAB, Nov.

1, 2000),

9

E.A.D.

—.

“Accordingly,

only

those

issues and arguments raised during the comment period can

form the basis foran appeal before the Board (except to the extent that

issues or arguments were not reasonably ascertainable).”

New

England

Plating,

slip op.

at 8 (citing

In refettBlack,

Inc.,

UIC Appeal Nos.

98-3

& 98-5, slip.

op. at

8

& nn.18,

23

(EAB, May 27,

1999),

8

E.A.D.

—

(finding

that

reasonably ascertainable arguments not

raised during

the

public

comment period were not preserved forappeal)).

As

we have previously explained, “tJhe

effective, efficient and

predictable administration of the permitting process,

demands that

the

permit issuer be given the opportunity toaddress potential problems with

draft permits

before they

become

final.”

In re Encogen Cogeneration

Facility,

PSD Appeal Nos. 98-22 to 98-24, slip

op. at

8

(EAB, Mar.

26,

1999),

9

E.A.D.

—.

“In this manner, the permit

issuer can make timely

and

appropriate

adjustments

to

the

permit

determination,

or,

if

no

adjustments

are made,

the

permit issuer can

include an explanation

of

why

none are necessary.”

In re Essex County

(N.J.) Resource Recovery

Facility,

5

E.A.D.

218, 224

(EAB

1994).

In particular, the petitioner

must haveraisedduring the public comment period the specific argument

that

the petitioner seeks to raise

on

appeal;

it

is not

sufficient for

the

petitioner to have

raiseda more general or related

argument during the

public

comment

period.

See,

e.g..

In

re RockGen

Energy

Ctr.,

PSD

Appeal No. 99-I,

slip op. at II (EAB,

Aug. 25,

1999),

8

E.A.D.

—

(petition

denied because

petitioner raised

during

the

public

comment

period

three issuesregarding one type of emissions control technology,

but

had not

raised the

specific

issue

comparing that

technology

to

the

technology that was selected, which petitioner sought to raiseon appeal).

“At

a

minimum,

commenters

must

present

issues

with

sufficient

specificity

to

apprise

the

permit

issuing authority