ILLINOIS POLLUTION CONTROL BOARD
    July 24, 2003
     
    IN THE MATTER OF: )
    )
    SITE SPECIFIC RULE FOR CITY OF ) R03-11
    EFFINGHAM TREATMENT PLANT ) (Site-Specific
    FLUORIDE DISCHARGE, 35 ILL. ADM. ) Rulemaking – Water)
    CODE 304.233 )
     
    Proposed Rule. First Notice.
     
    OPINION AND ORDER OF THE BOARD (by T.E. Johnson):
     
    On October 22, 2002, the City of Effingham (City), Blue Beacon International, Inc. (BBI)
    and Truckomat Corporation (Truckomat) (referred to collectively as “petitioners”) filed a
    proposal for rulemaking under Section 27 of the Environmental Protection Act (Act) (415 ILCS
    5/27 (2002)), to change regulations governing fluoride found in the Board’s rules at 35 Ill. Adm.
    Code 302.208(g). On April 11, 2003, a hearing was held in this matter at the City Hall Council
    Chambers, 201 E. Jefferson, Effingham, Effingham County.
     
    By today’s action the Board adopts the proposed amendments for the purpose of first
    notice, pursuant to the Illinois Administrative Procedure Act (5 ILCS 100/1-1). The proposal
    will be published in the
    Illinois Register
    whereupon a 45-day public comment period will begin
    during which interested persons may file additional public comments with the Board.
     
    BACKGROUND
     
    BBI and Truckomat operate truck washes in Effingham, Effingham County. The
    wastewater from the truck washes contains fluoride resulting from the brighteners used in
    washing the trucks. Petitioners state that there are no alternative replacements for these
    brighteners, and discontinuing their use would cause a severe negative economic impact. Pet. at
    2. Petitioners further state that the site-specific fluoride level proposed will be protective of
    aquatic life, human health, and the environment as a whole. Pet. at 2.
     
    The truck washes discharge wastewater produced from their operations into the City’s
    publicly owned treatment works (POTW). Pet. at 3. The POTW discharges treated effluent into
    an unnamed tributary of Salt Creek, which flows into the Little Wabash River, 37 miles upstream
    from the City of Flora. Pet. at 4, 7, 9. The City’s current daily fluoride effluent limit is 1.4
    mg/L, the same as the 1.4 mg/L water quality standard. Pet. at 4. The City seeks an effluent
    limit of 4.5 mg/L subject to the averaging rule of 35 Ill. Adm. Code 304.104. Pet. at 2.
     
    On November 7, 2002, the Board opened a new regulatory docket for this matter, and
    directed that a hearing be scheduled on the proposal. At the April 11, 2003 hearing, David M.
    Walter appeared and participated on behalf of the petitioners; Matthew R. Hortenstine appeared
    on behalf of the City of Effingham; and Deborah J. Williams appeared and participated on behalf

     
    2
    of the Illinois Environmental Protection Agency (Agency). No members of the public attended
    the hearing.
     
    As proposed, the site-specific effluent standard requested by the petitioners would
    provide as follows:
     
    Section 304.326 City of Effingham Treatment Plant Discharge
     
    This section applies to the discharge from the POTW located at 903 E. Eichie
    Avenue in Effingham, Illinois, owned by the City of Effingham, to an unnamed
    tributary of Salt Creek, said point being located in Effingham County, T8N, R6E,
    Sec. 28, Lat: 39
    °
    06’24”, Long: 88
    °
    31’55”. Such discharge shall not be subject
    to Section 304.105 as it applies to the water quality standard for fluoride at 35 Ill.
    Adm. Code 302.208(g). Such discharge must meet a fluoride effluent standard of
    4.5 mg/L, subject to the averaging rule of Section 304.104. Pet. at 2.
       
    PRELIMINARY MATTERS
     
    On April 3, 2003, Chairman Johnson sent a letter to the Illinois Department of Commerce
    and Economic Opportunity (DCEO), formerly the Department of Commerce and Community
    Affairs, requesting an economic impact study on this rulemaking. On April 17, 2003, DCEO
    responded to the Chairman's April 3, 2003 request for an economic impact study stating that no
    studies will be performed.
     
    On June 12, 2003, a notice that a hearing will be held on July 18, 2003, to fulfill the
    requirements of Section 27(b) of the Environmental Protection Act (Act) (415 ILCS 5/27(b)
    (2002)) was issued. Section 27(b) of the Act requires the Board to request DCEO to conduct an
    economic impact study (EcIS) on certain proposed rules prior to adoption of those rules. If
    DCEO chooses to conduct the EcIS, they have 30 to 45 days after such request to produce a
    study of the economic impact of the proposed rules. The Board must then make the EcIS, or
    DCEO’s explanation for not conducting the study, available to the public at least 20 days before
    a public hearing on the economic impact of the proposed rules.
     
    On July 18, 2003 the EcIS hearing was held. At the hearing, the Board made available
    copies of the Board’s April 3, 2003 letter and DCEO’s April 17, 2003 response. The Board
    received no comments on the letters. Both the letter and response are available for review at the
    Board’s Chicago Office, James R. Thompson Center, 100 West Randolph, Suite 11-500,
    Chicago, Illinois.
     
    APRIL 11, 2003 HEARING
     
    On April 11, 2003, a hearing was held in this matter at the City Hall Council Chambers,
    201 E. Jefferson, Effingham, Effingham County. David M. Walter appeared and participated on
    behalf of the petitioners. Matthew R. Hortenstine appeared on behalf of the city of Effingham.
    Deborah J. Williams appeared and participated on behalf of the Illinois Environmental Protection
    Agency (Agency). No members of the public attended the hearing.

     
    3
     
    At the hearing, Greg Bright, Steve Miller, Mike Rose, and Max Shepard submitted
    written and oral testimony for the petitioners. Scott Twait presented testimony for the Agency.
    The transcript was received at the Board on April 18, 2003. Public comments were due on or
    before May 19, 2003. The petitioners and the Agency both filed post-hearing comments.
    However, to date, no additional public comments have been received.
     
    PETITIONERS’ TESTIMONY
     
    Greg Bright
     
      
    Bright is the director of Commonwealth Biomonitoring, Inc. (CBI) based in Indianapolis,
    Indiana. Bright at 1. He testified concerning the available data on the toxicity of fluoride to
    aquatic life in general, the effect of hardness on fluoride toxicity, and actual bioassessments of
    the site. Bright testified that bioassesments from the Agency and CBI demonstrate that fluoride
    from the City’s wastewater treatment plant (WWTP) discharge is not causing any harm to
    aquatic life. Bright at 5. Bright said that the historical data shows only two occasions in the last
    three years where the City’s effluent has achieved the 1.4 mg/L standard for fluoride, but that the
    fluoride levels in the City’s discharge are not having an adverse impact on the fluoride levels
    downstream. Bright at 2.
     
    Bright testified that CBI conducted a scientific assessment of the effects of fluoride on
    the water downstream from the City’s WWTP, and that the lowest fluoride concentration where
    short term (acute) toxic effect of exposure to freshwater animal species was observed was 17
    mg/L for the caddisfly
    Ceratopsych bronta
    . Bright at 2. He states that the lowest concentration
    of fluoride determined in laboratory tests to have a long-term (chronic) effect on freshwater
    animals present in Illinois is 3 mg/L, but that this determination was made in very soft water.
    Id
    .
     
    Bright testified that scientific studies demonstrate that sensitive aquatic species can exist
    in water with higher fluoride concentrations than those proposed by petitioners. Bright at 5.
    Bright testified that the scientific literature demonstrates that there is a relationship between
    hardness values for water and the concentration at which fluoride is toxic to aquatic life. Bright
    at 2-3. He further testified that additional tests have demonstrated that concentrations of fluoride
    significantly higher than 3 mg/L are not toxic to aquatic life in the characteristically much harder
    water of Central Illinois. Bright at 3.
     
    According to Bright, the water in the Little Wabash River downstream from the City is
    very hard, with a hardness value of more than 300 mg/L during low flow conditions. Bright at 3
    .
      
    Thus, testified Bright, he assumed a hardness value of 300 mg/L in the evaluation of fluoride
    toxicity by using a method developed by the United States Environmental Protection Agency.
    Bright asserts that the resulting data demonstrates that fluoride in the water downstream from
    the City would not be detrimental to aquatic life at concentrations at or below 10 mg/L.
    Id
    . At
    hearing, Bright agreed to recalculate the values based on the stream-specific hardness of 130 to
    143 mg/L provided by the Agency. Tr. at 40-41, 75-76. These recalculations resulted in chronic
    fluoride values of 4.7 and 5.2 mg/L. Pet. Com. at 11. Bright concluded that the proposed site-

     
    4
    specific fluoride limit of 4.5 mg/L would protect aquatic life even at the lower hardness values.
    Pet. Com., Attach. C at 1.
     
    Bright testified that net-spinning caddisflies are known to be very sensitive to fluoride,
    yet flourish in the receiving stream of the City’s WWTP. Bright at 4. Further, CBI completed
    an additional bioassesment on June 20, 2002, and concluded that there is no evidence that the
    fluoride in the City’s WWTP effluent is harming the aquatic community immediately
    downstream from the discharge.
    Id
    . Bright testified that site-specific relief requested can be
    granted without any harm to either aquatic life or the environment. Bright at 5.
     
    Steve Miller
     
    Miller is the city engineer for the City. Miller at 1. He testified that the City’s current
    treatment plant was constructed in 1980 and upgraded in 2001. Miller at 2. The plant employs
    five full-time personal and serves approximately 4,600 residential and 250 commercial
    customers. Miller at 2-3. Miller stated the plant has a design average flow of 3.75 million
    gallons per day and a maximum hydraulic flow of 9.375 million gallons per day. Miller at 3.
    The plant utilizes an oxidation ditch treatment system with tertiary rapid sand filtration, but is not
    designed to remove soluble inorganic anions such as fluoride.
    Id
    .
     
    The City’s WWTP discharges to an unnamed tributary of Salt Creek pursuant to
    National Pollutant Discharge Elimination System (NPDES) permit No. IL0028622, issued on
    March 30, 2000. Miller at 3. The permit is set to expire on October 31, 2003.
    Id
    . The permit
    establishes a daily maximum fluoride discharge limit for the plant of 8.6 mg/L until the new
    plant attained an operational level, at which time the maximum fluoride discharge limit would
    become 1.4 mg/L pursuant to 35 Ill. Adm. Code 302.208(g). Miller at 3. The new plant became
    operational in June 2001. Miller at 4.
     
    Miller testified that the background concentration of fluoride in the City’s wastewater is
    1.0 mg/L since fluoride is added to the City’s public water supply for dental health reasons.
    Miller at 4. He stated that only a small amount of fluoride for industrial loading can be allowed
    if the City is to comply with the general use water quality standard of 1.4 mg/L.
    Id
    . As a result,
    the City calculated a preliminary pretreatment discharge limit of 2.54 mg/L for each of the City’s
    four industrial sources of fluoride.
    Id
    .
     
    Miller testified that no feasible treatment option for the fluoride in the discharge from
    BBI and Truckomat exists. Miller at 5. He stated that in order for the City to meet its fluoride
    limit, these businesses would be severely hampered, if not eliminated, and that the loss of those
    industries could have a severe negative economic impact on the City.
    Id
    . Miller testified that the
    site-specific effluent limit proposed is protective of health and the environment. Miller at 5.
     
    Mike Rose
     
    Mike Rose is the director of environmental research and development for BBI. He
    testified that adoption of the proposed standard will allow socially and economically valuable
    services located in the City to continue. Rose at 1. Rose said that the City derives much of its

     
    5
    income from services provided to persons traveling along the two major interstates intersecting
    at the City. Rose at 2.
     
    Rose testified that the brightener used to wash trucks at BBI’s two washes contains
    hydrofluoric acid (HF), and that each BBI truck wash facility generates approximately 24,000
    gallons per day of wastewater with a fluoride concentration from 40 to 130 mg/L. Rose at 2.
    The wastewater pretreatment at the BBI truck washes is accomplished by providing retention in a
    three-stage settling pit located inside each truck wash bay.
    Id
    . Rose testified that the HF
    brightener chemically removes the aluminum oxide coating that forms on the exposed aluminum
    surface of the over-the-road trucks, and that despite significant efforts by the truck wash
    industry, no alternative producing the wash quality of the HF-based brightener has been
    discovered. Rose at 3.
     
    Rose stated that the brightener constitutes a significant portion of the truck wash
    operational cost and the facilities are driven by operational costs to use no more brightener than
    necessary to achieve the desired finished product. Rose at 3. Therefore, posits Rose, economic
    incentives already prevent excess use of the brightener chemical. Rose at 4.
     
    After working with Shepard Engineering to complete bench testing of different methods
    to reduce fluoride, Rose testified that the lowest practicable fluoride removal level for the truck
    washes is significantly greater than the pretreatment discharge limit of 2.54 mg/L proposed by
    the City, and that it is not technically feasible for BBI or Truckomat to achieve such a limit.
    Rose at 4. Rose stated that even though tests did not achieve fluoride reduction sufficient to
    comply with the discharge limit, cost estimates were developed for wastewater treatment systems
    for the three truck wash operations in the City.
    Id
    . He stated that the estimated total capital cost
    for this equipment is $1.5 million, based on a design wastewater flow rate of 30,000 gallons per
    day at each location.
    Id
    . Rose estimated that the chemicals, operating labor, sludge disposal,
    maintenance and depreciation associated with such a system would cost $600,000 annually.
    Rose at 4-5. To recoup the annual operating cost, the price of a wash would have to increase
    13% - by $5.00. Rose at 5. Rose concluded that even if it were technically feasible to achieve
    the fluoride standard currently imposed, the costs of such technology would be prohibitively
    expensive. Rose at 5.
     
    Rose stated that the loss of the use of the HF brightener would result in an annual
    economic loss of $900,000 in the City based on the decrease of truck wash revenue alone, and
    that this loss would be compounded by lost revenue for associated businesses as well as loss of
    employment. Rose at 5. Rose projected the loss of the HF brightener would result in the loss of
    seven to eight employees per truck wash location – a total of 21–24 jobs in the City.
    Id
    .
     
    Max Shepard
     
    Max Shepard is a chemical engineer, a licensed professional engineer in four states, and
    the president of Shepard Engineering. Shepard at 1. He testified that the fluoride levels
    proposed by the petitioners will be protective of aquatic life, human health, and the environment
    as a whole; and will also allow socially and economically valuable services located in the City to
    continue. Shepard at 2.

     
    6
     
    Shepard stated that waters from the City’s POTW are discharged to an unnamed tributary
    of Salt Creek, and the potentially affected waters include Salt Creek and the Little Wabash River
    into which Salt Creek flows. Shepard at 2. Shepard testified that the City of Flora receives its
    water from the Little Wabash River through a water supply intake located approximately 37
    miles downstream from the City. Shepard at 2–3.
     
    According to Shepard, the seven-day, ten-year low-flow value for the unnamed tributary
    is zero, and there can be periods where the stream flow in the unnamed tributary is comprised
    entirely of the discharge flow from the City. Shepard at 3, Response to HO Questions at 5.
    Shepard noted that the City’s POTW effluent has achieved the 1.4 mg/L standard for fluoride on
    only two occasions over the last three years, and that the average discharge fluoride
    concentration for 45 sampling events during that time period was 2.73 mg/L.
    Id
    . However,
    Shepard stated that based on empirical data, the fluoride levels in the City’s discharge are not
    having an adverse impact on the City of Flora’s water supply fluoride levels.
    Id
    . Specifically,
    the average and maximum fluoride concentrations at the Flora intake were 0.26 mg/L and 0.77
    mg/L, respectively, from June 1994 through September 2001. Shepard at 4.
     
    Shepard testified that there does not appear to be any significant sources of fluoride in the
    subject streams, other than Effingham, BBI and Truckomat. Shepard at 4. Shepard provided
    water balance and fluoride balance calculations that demonstrate that under the proposed
    standards, the fluoride concentration in the City of Flora’s water supply will not exceed 2.0 mg/L
    even under low-flow conditions and taking evaporation into consideration. Shepard at 5-6.
     
    Shepard testified that tests using varying dosages and combinations of calcium
    hydroxide, calcium chloride and alum revealed that the lowest practicable fluoride removal level
    for the truck facilities was in the range of 10 mg/L – significantly greater than the preliminary
    pretreatment discharge limit of 2.54 mg/L proposed by the city. Shepard at 7. Accordingly,
    asserts Shepard, it is not technically feasible for BBI or Truckomat to achieve the 2.54 mg/L
    fluoride limit.
    Id
    . Further, Shepard stated that despite the addition of wastewater from other
    sources, the lowest practicable fluoride removal level that could be achieved by the City still
    greatly exceeds the current fluoride effluent limit.
    Id
    .
     
    Shepard stated that the three truck washes all utilize the industry standard for brighteners
    that contain HF. Shepard at 8. Shepard found that although other truck washes across the
    country are able to mix wastewater with other users and the receiving stream, Effingham is a
    relatively small community (population 12,022) that discharges to an extremely low-flow stream
    so that no mixing is available with respect to the City’s POTW discharge. Shepard at 8-9.
     
    Shepard concluded that the proposed fluoride effluent standard will be protective of the
    waters of the state located downstream,. Shepard stated that calculations revealed that from the
    point of discharge to the confluence of Salt Creek with the Little Wabash River, the fluoride
    levels would be less than or equal to 5.0 mg/L; from the confluence of Salt Creek with Little
    Wabash River to a point on the Little Wabash River 2.8 miles downstream of Louisville, the
    fluoride levels would be less than or equal to 3.2 mg/L; and from that point to the confluence of

     
    7
    Buck Creek and the Little Wabash River (approximately 9.8 miles downstream of Louisville) the
    fluoride levels would be less than or equal to 2.0 mg/L. Shepard at 9–10.
     
    Finally, Shepard testified that bioassessments from CBI and the Agency demonstrate that
    fluoride from the City’s discharge is not causing any harm to aquatic life. Shepard at 10.
    Shepard also testified to measures the City of Effingham would take to protect the City of Flora’s
    water supply intake. Procedures included measuring stream flow, sampling water at the intake
    during times of low flow, and temporarily lowering Effingham’s effluent standard until flow
    increased again. Tr. at 60, 63.
     
    AGENCY TESTIMONY
     
      
    The attorney for the Agency, Deborah Williams, filed pre-hearing testimony on the
    Agency’s behalf. The Agency is substantially in agreement that the proposed rulemaking change
    is necessary and contains sufficient conditions to safeguard the environment now, and in the
    future. Agency at 1-2. However, the Agency argues that the relief should be granted from the
    water quality standard, rather than simply as an alternative effluent standard as proposed by the
    petitioners. Agency at 6. The Agency asserts that there are important technical and legal reasons
    that the Board should not grant relief solely from 304.105 in cases where the relief granted will
    cause the general use standard to be violated. Agency at 7.
     
    The Agency argues that granting the relief requested to the City protects the discharger
    from enforcement, but does nothing to prevent the violation of the water quality standard.
    Agency at 7. The Agency believes that if the Board grants relief from 35 Ill. Adm. Code
    304.105 instead of the water quality standard, it would be inconsistent with federal law because
    the Board is essentially granting a discharger indefinite or permanent permission to violate a
    water quality standard. Agency at 7-8. The Agency believes it lacks authority to issue an
    NPDES permit to the City that would cause a violation of the existing water quality standard for
    fluoride. Agency at 8. The Agency concludes that it is preferable to set site specific water
    quality standards rather than to grant license to violate those standards and that do otherwise is
    inconsistent with the Clean Water Act. Agency at 9.
     
    The Agency argues that it would be an absurd result to the Board’s regulatory relief
    process if, following a favorable recommendation by the Agency in a site specific proceeding,
    the Agency would subsequently be legally required to list a given water body as impaired for a
    given substance because it does not meet the standard of general applicability for that substance.
    Agency at 11.
     
    The Agency proposes alternate relief that changes the water quality standard for the
    receiving stream to reflect the concentrations of fluoride present. Agency at 13. Specifically, the
    Agency proposes the following language:
     
    Section 303.326 Unnamed Tributary of Salt Creek, Salt Creek, and Little
    Wabash River. The fluoride general use water quality standard of Section
    302.208(g) shall not apply to the waters of the State which are located from the
    point of discharge of the POTW located at 903 E. Eichie Avenue in Effingham,

     
    8
    Illinois, owned by the City of Effingham, to an unnamed tributary of Salt Creek,
    said point being located in Effingham County, T8N, R6E, Sec. 28, Lat:
    39
    °
    06’24”, Long: 88
    °
    31’55”, to the confluence of said unnamed tributary with
    Salt Creek; to the confluence of Salt Creek with the Little Wabash River; to the
    confluence of Buck Creek and the Little Wabash River. Fluoride levels in such
    waters shall meet a water quality standard for fluoride (STORET Number 00951)
    as set forth below:
     
    a) From the point of discharge of the City of Effingham POTW to the
    unnamed tributary to the confluence of the unnamed tributary with Salt
    Creek and from the confluence of the unnamed tributary with Salt Creek
    to the confluence of Salt Creek with the Little Wabash River, the fluoride
    water quality standard shall be 5.0 mg/L.
     
    b) From the confluence of Salt Creek with the Little Wabash River to a point
    on the Little Wabash River located 2.8 miles downstream of Louisville,
    Illinois, the fluoride water quality standard shall be 3.2 mg/L.
     
    c) From a point on the Little Wabash River located 2.8 miles downstream of
    Louisville, Illinois to the confluence of Buck Creek and the Little Wabash
    River, a point on the Little Wabash River located approximately 9.8 miles
    downstream of Louisville, Illinois, the fluoride water quality standard
    shall be 2.0 mg/L. Agency at 13-14.
     
    The Agency acknowledges the Board’s concern that relief from the fluoride limits will be
    unfairly granted to other discharges who have not presented the Board with sufficient evidence
    of the need for relief. Agency at 10. The Agency asserts this concern is somewhat misplaced
    since the Agency only recommends that the Board grant relief in site-specific rulemakings or
    adjusted standards when a thorough technical evaluation has revealed the requested relief is
    adequate to protect all existing and potential uses of the water body in question.
    Id
    . However,
    the Agency suggests that the Board could place as a condition to establishing the site-specific
    water quality standard that any party wishing to take advantage of the new water quality standard
    must also come to the Board to request such relief. Agency at 12. As an added safeguard, the
    Agency noted that through the permit renewal process, the Agency can require petitioners to
    review any new information on replacement brighteners to reduce fluoride in the wastewater.
    Agency at 14. At hearing, the Agency also referred to a proposed special condition in the permit
    meant to protect the City of Flora’s water supply during low flows that would require monitoring
    and sampling of stream flow and slow down of production at the truck washes. Tr. at 64-65.
     
    PUBLIC COMMENTS
     
    Both the petitioners and the Agency filed post-hearing comments that addressed issues
    raised by the Board at hearing and provided additional argument on the proper avenue of relief.
    Of specific note, the petitioners assert that the City of Flora was notified of the petitioners’ intent
    to file the instant petition with the Board via a voicemail message left by petitioners’ attorney
    with the Flora city administrator. Pet. Com. at 11. In addition, Agency consultation with the

     
    9
    Illinois Department of Natural Resources confirmed there are no threatened or endangered
    species in the receiving waters. Pet. Com. at 12, Ag. Com. at 4. BBI also contacted the Illinois
    Waste Management and Research Center regarding possible alternatives to the HF brightener.
    Pet. Com. at 12. BBI examined several alternative brighteners and tested eight, but none were
    nearly as effective as BBI’s current HF brightener. Pet. Com. at 12, Exh. E and F.
     
    The Agency’s comments reiterated that the appropriate relief is in the form of a site-
    specific water quality standard that would be sent to USEPA for approval. Ag. Com. at 2. The
    Agency asserted that it does not believe any reason to limit the term of relief granted with a
    sunset provision. Ag. Com. at 3. In this regard, the Agency notes that if, at some point, review
    of the water quality standard indicates the science underlying this rulemaking was faulty or
    outdated, the Agency and the Board would be obligated to revisit this case. Ag. Com. at 3. The
    Agency also added, that if the passage of time reveals the proposed water quality standards are
    not being met, they would revisit this issue. Ag. Com. at 3. As to notification to the City of
    Flora if the water quality standard of 2.0 mg/L is exceeded at the public water supply intake, the
    Agency indicated it was willing to implement or require Effingham to implement appropriate
    notification to the City of Flora if requested by the Board. Ag. Com. at 4.
     
    The Agency further asserts that technical reasons in this case will limit the opportunity
    for other discharges to take advantage of the recommended relief, and, regardless, the Agency’s
    obligation to review the technical information submitted by any would be discharger during the
    permitting stage would further assure that the fluoride water quality standard will continue to be
    met. Ag. Com. at 8,12.
     
    DISCUSSION
     
    The Board may adopt regulations specific to individual persons or sites. In promulgating
    regulations under the Act, the Board shall take into consideration the physical conditions and
    character of the surrounding areas, the nature of existing air quality as well as the technical
    feasibility and economic reasonableness of reducing the pollution.
    See
    415 ILCS 5/27 (2000).
     
    The petitioners and the Agency are in substantial agreement that the rulemaking change
    is necessary and contains sufficient conditions to safeguard the environment now and in the
    future. Further, the parties agree, and it is evident from the record, that compliance with the
    existing regulations governing fluoride is not technically feasible or economically reasonable.
    However, the parties differ on the proper avenue of relief in this instance.
     
    The petitioners seek a regulation providing a new fluoride effluent limit of 4.5 mg/L
    applicable to the City’s POTW effluent subject to the averaging rule of 35 Ill. Adm. Code
    304.104. The Agency argues that in order to comply with federal law, the Board should grant
    petitioners relief from the water quality standards rather than effluent limitations.
     
    The Board has recently addressed this issue.
    In re
    Petition of Exelon Generation
    Company for an Adjusted Standard from 35 Ill. Adm. Code 302.208, AS 03-1 (June 19, 2003).
    In that case, the Board found that an adjusted standard from the effluent limits rather than from

     
    10
    the water quality standard could lead to inconsistent results and leave the petitioner vulnerable to
    federal action. Exelon, (June 19, 2003) slip op. at 8.
     
    The Board agrees with the Agency that granting relief from 35 Ill. Adm. Code 304.105
    instead of the water quality standard may lead to inconsistencies with federal law. For example,
    the Agency could designate the stream segment at issue in this rulemaking as impaired for
    fluoride because it does not meet the standard of general applicability even after the Board has
    already granted the petitioners site-specific relief from the fluoride effluent limits on that same
    segment of stream. Further, the Agency may not have the authority to issue an NPDES permit to
    the City because doing so would cause a violation of the existing water quality standard for
    fluoride. Accordingly, the Board will propose a site-specific water quality standard rather than a
    new effluent limit in this instance.
     
    In addition, the Board requests the Agency to require Effingham to implement
    appropriate notification to the City of Flora if the water quality standard of 2.0 mg/L is exceeded
    at the water supply intake.
     
    The Board finds that petitioners have presented information indicating that compliance
    with at 35 Ill. Adm. Code 302.208(g) is not economically reasonable or technically feasible. In
    addition, petitioners have presented evidence regarding the nature of existing water quality and
    consistency with federal regulations. Further, the Board finds that the water quality data
    presented by the petitioners indicate that the requested relief is protective of the aquatic life and
    environment. However, for the reasons set forth above, the Board will proceed with the
    language for a site-specific rule proposed by Agency.
     
    CONCLUSION
     
     
      
    Based on the record developed to date in this matter, the Board finds that adoption of the
    proposed site-specific rule for the purposes of first notice is warranted.
     
    ORDER
     
    The Board directs the Clerk to cause the filing of the following with the Secretary of
    State for first-notice publication in the
    Illinois Register
    .
     
    TITLE 35: ENVIRONMENTAL PROTECTION
    SUBTITLE B: WATER POLLUTION
    CHAPTER I: POLLUTION CONTROL BOARD
     
    PART 303
    WATER USE DESIGNATIONS AND SITE SPECIFIC WATER QUALITY STANDARDS
     
    SUBPART A: GENERAL PROVISIONS
     
    Section
    303.100 Scope and Applicability

     
    11
    303.101 Multiple Designations
    303.102 Rulemaking Required
     
    SUBPART B: NONSPECIFIC WATER USE DESIGNATIONS
    Section
    303.200 Scope and Applicability
    303.201 General Use Waters
    303.202 Public and Food Processing Water Supplies
    303.203 Underground Waters
    303.204 Secondary Contact and Indigenous Aquatic Life Waters
    303.205 Outstanding Resource Waters
    303.206 List of Outstanding Resource Waters
     
    SUBPART C: SPECIFIC USE DESIGNATIONS AND SITE
    SPECIFIC WATER QUALITY STANDARDS
     
    Section
    303.300 Scope and Applicability
    303.301 Organization
    303.311 Ohio River Temperature
    303.312 Waters Receiving Fluorspar Mine Drainage
    303.321 Wabash River Temperature
    303.322 Unnamed Tributary
    of the Vermilion River
    303.323 Sugar Creek and Its Unnamed Tributary
    303.326 Unnamed Tributary of Salt Creek, Salt Creek, and Little Wabash River
    303.331 Mississippi River North Temperature
    303.341 Mississippi River North Central Temperature
    303.351 Mississippi River South Central Temperature
    303.352 Unnamed Tributary of Wood River Creek
    303.353 Schoenberger Creek; Unnamed Tributary of Cahokia Canal
    303.361 Mississippi River South Temperature
    303.400 Bankline Disposal Along the Illinois Waterway/River
    303.430 Unnamed Tributary to Dutch Creek
    303.431 Long Point Slough and Its Unnamed Tributary
    303.441 Secondary Contact Waters
    303.442 Waters Not Designated for Public Water Supply
    303.443 Lake Michigan Basin
    303.444 Salt Creek, Higgins Creek, West Branch of the DuPage River, Des Plaines River
     
    SUBPART D: THERMAL DISCHARGES
     
    Section
    303.500 Scope and Applicability
    303.502 Lake Sangchris Thermal Discharges
     
    APPENDIX A References to Previous Rules

     
    12
    APPENDIX B Sources of Codified Sections
     
    AUTHORITY: Implementing Section 13 and authorized by Sections 11(b) and 27 of the
    Environmental Protection Act [415 ILCS 5/13, 11(b), and 27].
     
    SOURCE: Filed with the Secretary of State January 1, 1978; amended at 2 Ill. Reg. 27, p. 221,
    effective July 5, 1978; amended at 3 Ill. Reg. 20, p. 95, effective May 17, 1979; amended at 5 Ill.
    Reg. 11592, effective October 19, 1981; codified at 6 Ill. Reg. 7818; amended at 6 Ill. Reg. 11161
    effective September 7, 1982; amended at 7 Ill. Reg. 8111, effective June 23, 1983; amended in
    R87-27 at 12 Ill. Reg. 9917, effective May 27, 1988; amended in R87-2 at 13 Ill. Reg. 15649,
    effective September 22, 1989; amended in R87-36 at 14 Ill. Reg. 9460, effective May 31, 1990;
    amended in R86-14 at 14 Ill. Reg. 20724, effective December 18, 1990; amended in R89-14(C) at
    16 Ill. Reg. 14684, effective September 10, 1992; amended in R92-17 at 18 Ill. Reg. 2981,
    effective February 14, 1994; amended in R91-23 at 18 Ill. Reg. 13457, effective August 19, 1994;
    amended in R93-13 at 19 Ill. Reg. 1310, effective January 30, 1995; amended in R95-14 at 20 Ill.
    Reg. 3534, effective February 8, 1996; amended in R97-25 at 22 Ill. Reg. 1403, effective
    December 24, 1997; amended in R01-13 at 26 Ill. Reg. 3517, effective February 22, 2002;
    amended in R03-11, at_______Ill. Reg____,effective_______.
     
     
    SUBPART C: SPECIFIC USE DESIGNATIONS AND SITE
    SPECIFIC WATER QUALITY STANDARDS
     
    Section 303.326 Unnamed Tributary of Salt Creek, Salt Creek, and Little Wabash
    River.
     
    The fluoride general use water quality standard of 35 Ill. Adm. Code 302.208(g) does not
    apply to the waters of the State which are located from the point of discharge of the
    POTW located at 903 E. Eichie Avenue in Effingham, Illinois, owned by the City of
    Effingham, to an unnamed tributary of Salt Creek, said point being located in Effingham
    County, T8N, R6E, Sec. 28, Lat: 39
    °
    06’24”, Long: 88
    °
    31’55”, to the confluence of said
    unnamed tributary with Salt Creek; to the confluence of Salt Creek with the Little
    Wabash River; to the confluence of Buck Creek and the Little Wabash River. Fluoride
    levels in such waters must meet a water quality standard for fluoride (STORET Number
    00951) as set forth below.
     
    a) From the point of discharge of the City of Effingham POTW to the
    unnamed tributary to the confluence of the unnamed tributary with Salt
    Creek and from the confluence of the unnamed tributary with Salt Creek to
    the confluence of Salt Creek with the Little Wabash River, the fluoride
    water quality standard is 5.0 mg/L.
     
    b) From the confluence of Salt Creek with the Little Wabash River to
    monitoring station C-19 located on the Little Wabash River
    approximately 2.8 miles downstream of Louisville, Illinois, the fluoride
    water quality standard is 3.2 mg/L.

     
    13
     
    c) From monitoring station C-19 located on a point on the Little Wabash River
    approximately 2.8 miles downstream of Louisville, Illinois to the confluence of
    Buck Creek and the Little Wabash River, a point on the Little Wabash River
    located approximately 9.8 miles downstream of Louisville, Illinois, the fluoride
    water quality standard is 2.0 mg/L.
     
    (Source: Added at 27 Ill Reg ___________, effective _______________)
     
     
    IT IS SO ORDERED.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above opinion and order on July 24, 2003, by a vote of 6-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     
     

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