ILLINOIS POLLUTION CONTROL BOARD

October 2, 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. Second 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. A hearing on the economic impact

of the proposal was held on July 18, 2003.

By today’s action the Board adopts the proposed rule for second notice pursuant to the

Illinois Administrative Procedure Act (5 ILCS 100/1-1). No comments were received during

first notice, and the proposal adopted here is substantively unchanged from that adopted in the

Board’s July 24, 2003 first-notice and opinion order. The following opinion will explain the

proposal background, summarize the first-notice proposal, and discuss the economic

reasonableness and technical feasibility of the rule.

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

of the Illinois Environmental Protection Agency (Agency). No members of the public attended

the hearing.

PROCEDURAL HISTORY

On October 22, 2002, the petitioners filed a petition for a site-specific rulemaking. On

November 7, 2002, the Board opened regulatory docket R03-11, finding that the proposal for

rulemaking met the requirements of 35 Ill. Adm. Code 102.210 and accepting it for hearing.

A hearing in this matter was held on April 11, 2003, at 201 East Jefferson Street, in

Effingham, Effingham County. The petitioners and the Agency appeared and presented

testimony at the hearing. No members of the public attended the hearing. The petitioners and

the Agency each filed public comment after the hearing.

On July 18, 2003, a hearing was held on the requested economic impact study of this

rulemaking. The hearing was necessary to fulfill the requirements of Section 27(b) of the Act.

415 ILCS 5/27(b) (2002). Section 27(b) of the Act requires the Board to request the Illinois

Department of Commerce and Economic Opportunity (DCEO) to conduct an economic impact

study (EcIS) on certain proposed rules prior to adoption of those rules. In response to an April 3,

2003 letter by Chairman Tom Johnson requesting the study, DCEO sent an April 17, 2003 letter

to the Board stating that no studies will be performed. 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.

On July 24, 2003, the Board issued its first-notice opinion and order. The order

summarized the testimony offered by the parties, and found that adoption of the petitioners’

proposed site-specific rule for the purposes of first notice, as modified by the Agency, was

warranted. Specifically, the Board agreed with the Agency that granting relief from 35 Ill. Adm.

Code 304.105 instead of the water quality standard, as requested by the petitioners, could lead to

inconsistencies with federal law. Accordingly, the Board proposed a site-specific water quality

standard rather than a new effluent limit.

The Board found that the petitioners presented information indicating that compliance

with 35 Ill. Adm. Code 302.208(g) is not economically reasonable or technically feasible. The

Board found that the petitioners presented evidence regarding the nature of existing water quality

and consistency with federal regulations. Further, the Board found that the water quality data

presented by the petitioners indicate that the requested relief is protective of the aquatic life and

environment.

The first-notice publication of the rules appeared in 27

Illinois Register

13680 (Aug. 15,

2003). No public comments were received during the 45-day first-notice period

[DEADLINE

IS 9.29]

. The Joint Committee on Administrative Review (JCAR) filed non-substantive

comments addressing grammar and format changes.

DISCUSSION

At first notice, the Board found that compliance with 35 Ill. Adm. Code 302.208(g) was

not economically reasonable or technically feasible. The Board has received no additional

comments discussing economic reasonableness and technical feasibility of the proposed rule. As

previously discussed, the Board proposed a site-specific water quality standard, as suggested by

the Agency, for first notice rather than a new effluent limit. No comments on this change to

petitioners’ original proposal were received. The Board held a hearing on July 19, 2003, to

satisfy the requirements of Section 27(b) of the Act. 415 ILCS 5/27(b) (2002). The Board

received no comments on the DCEO’s decision not to conduct an economic impact study on this

proposed rulemaking.

The Board did receive non-substantive comments from JCAR. The Board has

incorporated the suggested changes into the proposal as issued for second-notice review.

CONCLUSION

Based on the record developed to date in this matter, the Board finds that adoption of the

proposed site-specific rule is warranted. The Board proposes this rulemaking for second-notice

review by JCAR.

ORDER

The Board directs the Clerk to cause the filing of the following with the Joint Committee

on Administrative Rules for its second-notice review.

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE C: 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

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

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_______.

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) does not

apply to the waters of the State that 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:

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

in this section.

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.

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: Amended at

, 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 October 2, 2003, by a vote of 7-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board