~CE
iIVE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
LERK’S OFFICE
M~y
012003
IN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO:
PART 309 SUBPART A-
35111. Adm. Code
309.105,
309.107, 309.108,
309.109, 309.110, 309.112, 309.113, 309.114,
309.117, 309.119, 309.143, 309.146;
and
PROPOSED
35
Ill. Adm. Code 120 through 122-
NPDES PERMITS AND
PERMITTING PROCEDURES
NOTICE OF FILING
STATE OF
ILLINOIS
Po//~tj0~Control Board
Dorothy Gunn, Clerk
Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
Mathew Dunn
Illinois Attorney General’s Office
James R. Thompson Center
100 West Randolph Street
Chicago, Illinois 60601
Attached Service List
Marie E.. Tipsord
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
Legal Service
Illinois Department ofNatural Resources
524
South Second Street
Springfield, Illinois 62701-1787
PLEASE
TAKE NOTICE that
I have today filed with the Office of the
Clerk ofthe Pollution Control
Board the Illinois Environmental Protection Agency’s COMMENTS,
a copy of which is herewith
served upon you.
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
By:________
Sanjay K Sofat, Assistant Counsel
Division ofLegal Counsel
Dated: April 29, 2003
Illinois Environmental Protection Agency
1021
North Grand
Avenue East
Springfield,
Illinois 62794-9276
(217)
782-5544
)
R03-19
)
(Rulemaking-Water)
)
)
)
)
)
THIS FILING PRINTED ON RECYCLED PAPER
IN THE MATTER OF:
PROPOSED AMENDMENTS TO:
PART 309 SUBPART A-
35111. Adm. Code 309.105, 309.107, 309.108,
309.109, 309.110, 309.112, 309.113, 309.114,
309.1 17, 309.119, 309.143, 309.146; and
PROPOSED 35 Ill. Adm. Code 120 through 122-
NPDES PERMITS AND PERMITTING PROCEDURES
AGENCY’S COMEMNTS
THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY (“Agency”) respectfully
submits its comments in the above-entitled matter to the Illinois Pollution Control Board (“Board”).
At the April 2, 2003 hearing, the Agency offered its assistance to meet with the various
stakeholders to identif~ithe issues of concern and the possibility ofresolving some of the issues, if
possible. On April 18, 2003, the Agency met with the representative(s) ofthe Illinois
Environmental regulatory Group, the Illinois Association ofWaste Water Agencies, Illinois Coal
Association, Vermilion Coal Company, and Proponents. The objective ofthis meeting was to allow
the stakeholders openly explore their issues ofconcern and resolve them to the extent possible. The
Agency informed the stakeholders that based on the input from the April 2 meeting, the Agency will
submit its comments to the Board as the Agency’s recommended changes to the original proposal.
The stakeholders were advised to submit their comments separately and independently to the Board
as the Agency comments may not fully resolve their issues of concern.
The Agency appreciates the opportunity to meet with various stakeholders to resolve the issues to
the extent possible. The Agency’s comments include request for additional information made at the
REC1E~1VED
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARELE K’S ~
MAY
012003
STATE OF
ILLiNOiS
)
Pollution Control Board
R03-19
(Rulemaking-Water)
)
)
)
)
)
)
)
)
2
April 2, 2003 Hearing and the Agency’s specific position regarding various provisions ofthe
pr~posal.The Agency’s specific recommendations are based on the Agency’s desire to
accommodate the comments made during this rulemaking and to keep the NPDES program
manageable and consistent with the applicable state and federal law.
I. ADDITIONAL INFORMATION
Number of Public Hearings During The Last Four Years:
Roy Harsch ofthe Illinois Association ofWaste Water Agencies requestedthe following
information: the number ofrequested public hearings, the number ofpublic hearings actually
granted, the total cost for the public hearings, expense of engineers, attorney fees, court reporter,
travel, public notice fo the last four years.
See
Transcript for April 2, 2003 Hearing (“Tr.”), p.32.
The Agency made its best efforts to gather the requested information. After diligent research, the
Agency found that the request is too burdensome and that the Agency may not have all the requested
information. The Agency apologies for not being able to fulfill Mr. Harsch’s request. As the
requested information is not readily available in the Agency’s database system, the Agency had to
make approximations to provide the information:
YEAR
# Of Hearings Held
2002
4
2001
4
2000
9
1999
4
In Mid-90s, the Agency estimated the cost of an NPDES hearing to be around $15,000. Note that
the cost was calculated approximately seven to ten years ago. The cost, to the best ofthe Agency’s
knowledge, includes expenses related to publishing the notice in the newspaper, travel and
accommodation ofthe Agency employees, and the salaries ofthe employees involved in the hearing
process. The Agency hopes that the provided information satisfies Mr. Harsch’s request.
II. PROPONENTS’ PROPOSAL
The following is a detailed summary ofthe Agency’s comments regarding the Proponents’ proposal.
Where necessary, the Agency has provided suggested changes by modifying the original language
proposed by the Proponent.
.
Section: 309.105(f)
3
A~encyRecommendation:
The Board’s existing regulations at 35 Ill. Adm. Code 309.115 requires the Agency to hold a public
hearing on the issuance or denial ofan NPDES permit if the Agency determines that a significant
degree ofinterest exists. The Agency is required by both the state and federal law to provide
adequate opportunity for the public to comment on the draft permit. The Agency believes that the
proper remedy for a case where the public participation was not adequate is to reopen the public
comment period, rather than deny the permit, as proposed by the Petitioners. The alternate language
foi Section 309.12 1 would require the Agency to reopen the public comment period where the
public participation was not complete. Therefore, the Agency recommends deleting this proposed
provision as the alternate language of Section 309.121 now addresses the envisioned safeguard by
this provision.
Additionally, the Agency is concerned that the Board not be misled into a beliefthat this section, as
proposed, is required by the state or federal law. It is not. Rather the permitting system is
established to facilitate an opportunity for public participation.
Section: 309.105(g)
Agency Recommendation:
The proposed provision is duplicative as the existing Section 309.141 ofthe Board regulations
already covers the proposed requirements. Section 309.141, however, does not require that an
NPDES permit be denied if the federal procedural requirements are not followed in drafting or
issuing the permit. As the Agency considers Part 309 to meet the minimum requirements ofthe
applicable federal law, the proposed Section 309.105(g) is unnecessary. Further, the law does not
require that the state program be identical to the federal program. The court in
Natural Resources
Defense Council v. US EPA, 859
F.2d
156
stated that, “If Congress wanted the states to simply copy
the federal minimum public participation requirements, it would limit the elaborate regulatory
system to definition of federal level public participation, and leave the specifications ofthe
minimum acceptable state level, public participation for an exercise ofthe Administrator’s
rulemaking authority.”
Also, the proposed language is borrowed from Section 28.l(c)(4) of the Act, which applies to a
petition for an adjusted standard. Section 28.1(c)(4) has no direct bearing on the issuance ofan
NPDES permit, as it only applies when an applicant requests for an adjusted standard from one of
the applicable Board requirements. As .the proposedsection attempts to mingle two separate and
independent Clean Water Act mechanisms, it would create confusion and incompatibility with the
rest of Section 309.105. Further, the federal regulations parallel to Section 309.105 have no such
language or requirement. Additionally, as the proposed section imposes a question oflaw, pursuant
to the Illinois statutory scheme, the Illinois PCB and not the Illinois EPA must determine it.
Section: 309.107(c)
Agency Recommendation:
The proposed provision would require a notification ofan NPDES permit application to the Illinois
Department ofNatural Resources (“IDNR”). As this provision would only document what thefl
4
Agency is already in the process ofaccomplishing through a memorandum ofagreement with
IIDNR, the Agency supports the adoption ofthis provision.
Section: ‘3O9.l08(c)
A~encyRecommendation:
The Agency supports the proposed provision, however, makes some minor changes to clarify the
proposed language. Note that the Agency has incorporated the proposed Section 309.ll3(a)(7)
language into this Section.
Suggested Language:
Section 309.108
c)
A brief description statement ofthe basis for each of the permit conditions listed in Section
309.108(b), including a brief description ofany mixing zone, how the conditions ofthe draft
peru-ut were derived, and as well as the statutory or regulatory provisions and appropriate
supporting references.
Section: 309.108I~)
Agency Recommendation:
,
The Agency offers an alternate language to the Proponents’ proposed language. As the new
language states, all documents related to the Agency’s tentative decision to issue or deny an NPDES
permit become part ofthe Agency record. The Agency could either identify the document or
provide it in order for the document to become part ofthe Agency recOrd.
Suggested Language:
Section 309.108
e)
For the purposes ofTitle X, Permits, ofthe Act, the documents supporting the Agency’s
tentative decision to issue or deny an NPDES permit under this section shall be either
identified in or made part ofthe Agency record.
Section: 309.109(a)
,
.
.
Agency Recommendation:
The Agency suggests deleting the proposed amendment as it is no longer necessary. The Agency’s
recommended language for Section 309.121 contains the concept proposed by this amendment.
Section: 309.110(f)
.
Agency Recommendation:
The Agency suggests deleting the proposed subsection as it is repetitive. The Board’s existing
5
regulations at 35 Ill. Adm. Code 309.11
3(a)(5)
contain the same requirements. To provide further
clarity, the proposed language of 309.110(f)(1) was incorporated into the existing language of
Section 309.1
13(a)(5)(A).
Section: 309.112
Agency Recommendation:
See Section 309.119 discussion.
Section: 309.113(a)(5)
Agency Recommendation:
The Agency suggests deleting the proposed subsection as it is repetitive. The existing Section
309.113(a)(3) mandates the same information to be made part ofthe fact sheet. The adoption ofthis
provision would only create confusion.
Section: 309.1 13(a)(6)
Agency Recommendation:
The Agency believes the recommended changes to Section 309.1l3(a)(7) address the proposed
requirement. Thus, the proposed amendment is not necessary.
Section: 309.1
13(a)(7)
Agency Recommendation:
The Agency supports the proposed provision, however, suggests movingthe language under the
existing Section 309.108(c).
Suggested Language:
See Section 309.108(c)
Section: 309.l13(a)(8)
Agency Recommendation:
The Agency supports the proposed provision’s requirementto seek a summary ofthe changes
between the public noticed permit and the previous permit for a modified permit. The Agency
currently lists all draft revisions to a permit in the public noticed fact sheet for modified permits.
However, a similar requirement for.reissuance ofexpired permit would only impose extra burden on
the Bureau resources without any significant benefit to the public. This is especially true as the
reissued permits are considered as stand alone permits, i.e., the Agency reviews the request as if it
were a request for a newpermit.
6
~ggested Language:
Section 309.113(a)
81
In the case ofmodified and reissued permits, a brief summary ofchanges between the public
noticed permit and the previous permit~
Section: 309.113(a)(9)
Agency Recommendation:
The Agency supports the proposed language, however, makes minor changes to provide additional
clarity to the proposed language.
Sj~ggestedLanguage:
Section 309.113(a)
9)
A brief sSummary ofany the Agene~-santidegrad.ation analysis, including an4
characterization ofthe receiving waters and including the existing uses ofthe receiving
waters~
Section: 309.1 13(a)(10)(A)
Agency Recommendation:
See Section 309.1 10(f) discussion.
Suggested Language:
Section 309.113(a)
1 0)~A more detailed description ofthe procedures for the formulation of final determinations
than that given in the public notice, ‘including:
A)
The beginning and ending dates of the comment period and the address where
comments will be received The 30 day comment period;
Section: 309.113(a)(1l)
Agency Recommendation:
The Agency supports the proposed language, however, makes minor changes to provide additional
clarity to the proposed language.
.
.
Suggested Language:
Sectioii309.l13(a~
11)
Information on how to obtain the complete draft permit administrative Agency record
supporting the tentative determination.
7
Section: 309.119
Mency Recommendation:
The amendment is not necessary as the Agency’s alternate language in 309.121 covers this
requirement.
Section: 309.120
After the April 1
8th
meeting, the Proponent proposed the following language:
309.120 Submissions by the applicant and others interested parties to the agency record-
To be included in the Agency record, all submissions by the applicant and other persons must be
made by the close ofthe public comment period (including any public hearing and post hearing
comment period). The Agency mayreopen the public comment period to receive further comments,
arguments, evidence or other submissions whenever it believes that further submissions may assist
the Agency to reach an appropriate decision. In reopening the record, the Agency’ may restrict the
scope for submissions to one ormore issues.
Agency Recommendation:
The Proponents attempt one more time to define “record before the Agency.” A similar attempt is
made under Section 309.123 ofthe original petition. As stated under Section 309.123 discussion,
the Agency favors the Board’s existing definition of“record before the Agency” that is provided at
35 Ill. Adm. Code 105.2 12. The Agency believes that the Board existing’definition is more precise
and comprehensive thanthe definition proposed by the Proponents.. Further, the Agency views the
proposed language as in direct conflict with Section 105.2 12 ofthe Board regulations. The
proposed language is too restrictive in’its scope and would require-the Agency to reopen the
comment period for non-substantive documents. Also, under the proposed language, the Agency
would have to reopen the comment period to accept documents such as responsiveness summary,
Agency’s response to a private citizen’s comments, and EPA comments as part ofthe Agency
record. Clearly, this will stifle the Agency’s ability to communicate with the applicant and a
concerned citizen. The Agency believes, that the Agency record is not closed at the end ofthe
comment period, but only when all the issues raised during the comment period have been addressed
-through relevant documents. Ifin resolving these issues additional documents are generated, these
documents must become part ofthe Agency record. As the proposed language would only lead to
waste ofresources and would seriously impair the Agency’s ability to perform its duties under the
Act, the Agency opposes the proposed provision.
Section: 309.121
And
309.122
Agency Recommendation:
The Agency offers an alternate language to accomplish the purposes ofthe Proponents’ proposed
Sections 309.12 1 and 309.122. The concept presented in the alternate language originates from a
Ninth Circuit Court ofAppeals case,
Natural Resources Defense Council v. US
EPA, 279 F.3d 1180
(Feb 13, 2002). Under the proposed language, the Agency must reopen the public comment period
8
.
to receive additional comments if it makes the determination that the draft permit has been
significantly modified and also that the final permit is not a logical growth ofthe draft permit. To
help ascertain whether the final permit is a logical outgrowth ofthe draft permit, the Agency must
examine the four inquiries specified in the language. Ifany ofthe inquiry indicates that the final
-permit is not a logical outgrowth ofthe draft permit, the Agency must reopen the public comment
period to receive additional comments on the issues of first impression. The Agency must follow
the public notice requirements of Section 309.109 to receive additional comments. Under the
proposed section, the Agency is required‘to identify the issue or issues for which the comment
period is being opened. Further, the commenters are required to limit their comments to the issue(s)
identified in the notice.
Suggested Language:
Section 309.12 1
Reopening the Record to Receive Additional Written Comment
-
a) The Agency shall order the public comment period reopened to receive additional written
comments where the Agency significantly modifies the draft permit and the final permit is
not a logical outgrowth ofthe proposed draft permit. In determiningif the final permit is a
logical outgrowth ofthe draft permit, the Agency shall consider the following:
1) Whether the interested parties could not have reasonably anticipated the finalpermit
from the draft permit
.
-
2) Whether a new round ofnotice and comment would provide interested parties the
first opportunity to offer comments on the issue
3) Whether the provisions in the final permit deviate sharply from the concepts
included in the draftpermit or suggested by the commenters; or
4) Whether the changes made in the fmal permit representan attempt by the Agency to
respond to suggestions made .by commenters.
b)
The public notice of any comment period extended under this section shall identify the
issues as to which the public comment period is being reopened. Comments filed during
the reopenedcomment period shall be limited to the substantial new issues that caused
its reopening.
c)
For the notification purposes, the Agencyshall follow the public notice requirements of
Section 309.109.
Section: 309.123
Agency Recommendation:
The Agency favors the Board’s existing definition of“record before the Agency” that is provided at
35 Ill. Adm. Code 105.212. The Proponents attempt to define an existing definition that would only
create confusion and produce absurd results. ‘Further, the Agency believes that the Board existing
definition is more precise and comprehensive than the definition proposed by the Proponents.
Section: 3 09.143(a)
9
~gency Recommendation:
The Agency supports the proposed language without any changes.
Section: 309.146(a)(2)
Agency Recommendation:
The Agency supports the proposed language with minor changes. The minor changes are suggested
to eliminate redundancyin the proposed language.
Suggested Language:
Section 309. 146(a)(2):
Make reports adequate to determine the compliance or lack of compliance
by
the permit holder with
all effluent limits and, as appropriate, special conditions in the permit.
Section:
309.146(a)(5)
Agency Recommendation:
The Agency supports the proposed language without any changes, however, recommends that the
proposed language be moved under a new subsection, Section 309.146(d). The concept proposed in
the proposed Section
309.146(a)(5)
does not coincide with the concept contained in the existing
309.146(á). The requirements ofSection 309.146(a) are applicable to an NPDES permit holder,
whereas the proposed Section 309.
146(a)(5)
addresses what must be contained in all NPDES
permits. The Agency suggests the following changes to the Proponents’ proposed subsection:
Suggested Language:
Section 309.146(d):
All permits shall specify requirements concerning the proper use, maintenance, and installation,
when appropriate, ofmonitoring equipment or methods (including biological monitoring methods
when appropriate); required monitoring including type, intervals, and frequency sufficient to yield
datawhich are representative ofthe monitored activity including, when appropriate, continuous
monitoring.
,
Respectfully Submitted
ILLINOIS ENVIRONMENTALPROTECTION AGENCY
By:_________________________
Sanjay K Sofat, Assistant Counsel
10
Division ofLegal Counsel
DATED: April 29, 2003
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O.Box 19276
Springfield, Illinois 62794-9276
(217)782-5544
11
)
STATE OF ILLINOIS
COUNTY OF SANGAMON
)
)
SS
)
)
PROOF OF SERVICE
I, the undersigned, on oath state that Ihave served the attached Agency’s COMMENTS upon
the person to whom it is directed, by placing a copy in an envelope addressed to:
Dorothy Gunn, ~Clerk
Pollution Control Board
100 West Randolph Street
Suite 11-500.
Chicago, Illinois 60601
(OVERNIGHT
MAIL)
Mathew Dunn
Illinois Attorney General’s Office
Environmental Control Division
James R. Thompson Center
100 West Randolph Street
Chicago, Illinois 60601
-
(OVERNIGHT
MAIL)
Attached Service List
(FIRST CLASS)
Marie E. Tipsord
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
(OVERNIGHT MAIL)
Legal Service
Illinois Department ofNatural Resources
524 South Second Street
Springfield, Illinois 62701-1787
(OVERNIGHT MAIL)
and mailing it from Springfield, Illinois on April 29, 2003, with sufficient postage affixed as
indicated above~
SUBSCRIBED AND SWORN TO BEFORE ME
~
(/(/V
(‘I
X
OFFICIAL SEAL
. -
:ç
BRENDA BOEHNEi~
.
~:NOTARY PUBLrC. ST~JE ~
?MY COMMISSION ExpIRE~.1i.i4.2OO5:~
this day of April 29, 2003.
Br~Mk
~
Notary Public
THIS
FILING
PRINTED ON RECYCLED PAPER
12
Vickey MciKnley
Evanston Eniriromental Board
223 GreyAve
Evanston, Illinois 60202
~obert Messina
L. Environ. Regulatory Group
15E.Adains
pringfield, Illinois 62701
IrwinPolls
Metro Water Reclamation, Dist. ofChicago
6001 West
Cicero, Illinois 60804
Erika Powers
Barnes & Thomburg
10 S. LaSahle,Ste. 2600
Chicago, illinois 60201
Michael Rosenberg
Metro Water Reclamation Dist.
100 E. Erie St.
Chicago, illinois606l 1
S.ue A. Schulz
General & Associate Corporate Counsel
300 N. Waterworks Drive
Belleville, Illinois 62223-9040
Mary Sullivan
Illinois-American Water Company
P0 Box 24040
Belleville, Illinois 62223-9040’
SonjaySofat
‘IEPA
1021 N. Grand Ave. East (Mail Code #21)
Springfield, Illinois 62794-9276
Connie Tonsor
EPA
1021 N. Grand Ave. East (Mail Code #21)
Springfield, Illinois 62794-9276
Joel Sternstein
Assistant Attorney General
188 West Randolph Street,
20th
Floor
Chicago, Illinois 60601
Marie Tipsord
Attorney, Pollution Control Board
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
-
Charles Wessethoft
Ross & Hardies
150 North Michigan
Chicago, illinois 60601
W.C. Blantoa
Blackwell,Sanders,Peper,Martin,LLP
2300 Main, Ste. 1000
Kansas City,M0 64108
Larry Cox
Downers Grove Sanitary Dist.
2710 Curtiss Street
Downers Grove, Illinois
60515
James Daughtery
Thom Creek SanitaryDist.
700 West End Ave.
Chicago Heights, Illinois 60411
John Donahue
City ofGeneva
800 South street
~eneva, illinois.60134
Dorothy
Gunn
Pollution Control Board
100 West Randolph Suite 11-500
Chicago, Illinois 60601
James Hanington
Ross & Hardies’
150 N. Michigan, Suite 2500
Chicago, Illinois 60601
Roy M. Harsch
Gardner, Carton & Douglas
191 North Wacker Drive, Suite 3700
Chicago, Illinois 60606
Ron Hill
Metropolitan Water Reclamation District
100 East Erie
Chicago, Illinois 60611
-
~.lbertEttinger
.nviron. Law & Policy center
.~,5
E. Wacker Dr. Ste. 1300
Chicago, illinois 60601-2110
Susan franzetti
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, illinois 60606
Lisa Frede
Chemical Industry Council
250 E. Devon Ave. Ste. 239
Des Plaines, Illinois 60018
Katherine Hodge
Hodge, Dwyer, Zemari
-
3150 Roland Ave.
P.O. Box 5776
Springfield, Illinois 62705-5776
Fred L. Hubbard
415. North Gilbert Street
P0 Box 12
Danville, Illinois 61834-0012
Frederick Keady
Vermihlion Coal Co.
P0.Box 688
Glenview, Illinois 60025-0688
