RECEIVED

ILLINOIS POLLUTION CONTROL BOARD

CLERK’S OFFICE

NOV 262003

IN THE

MATTER

OF:

)

PollutIon

STATE OF

Control

IWNOIS

Board

PROPOSED AMENDMENTS TO:

PUBLIC

PARTICIPATION RULES

IN 35

)

R03-19

ILL. ADM. CODE PART 309 NPDES

)

(NPDES RULEMAKING)

PERMITS AND PERMITTING

PROCEDURES

)

COMMENTS OF

THE ILLINOIS COAL ASSOCIATION

The Illinois Coal Association (“ICA”) submits the following written comments on the

proposal to amend the rules relating to permitting procedures and public participation under the

National Pollution Disoharge Elimination System (“NPDES”) in 35 III. Adm. Code Part 309 in this

docket. Notice of the proposal was published in the Illinois Register on September

19,

2003.

The ICA is an organization formed to foster, promote and defend the interests of the

Illinois Coal Association. Our members include active producers of coal and owners of coal

reserves. Our members’ mining and reclamation operations are required to have NPDES

permits issued by the Agency under Part 309, and those members would be affected by the

proposed revisions to Part 309.

BACKGROUND

Part 309 sets forth procedures for the issuance of NPDES permits by the Illinois

Environmental Protection Agency (the “Agency”). The Part 309 rules include provisions for

public participation in the permitting process through public notice and the opportunity for public

comment and public hearings.

On January 13, 2003, the Environmental Law and Policy Center of the Midwest and

others (collectively the “Proponents”) filed a rulemaking proposal under 415 ILCS 5/28

proposing numerous revisions to the Part 309. The ICA and other parties, including the

Agency, filed comments on the proposal. On September 4, 2003, the Illinois Pollution Control

Board (the “Board”) entered its opinion and order in this docket directing that a rulemaking

proposal be published in the Illinois Register. The rulemaking proposed by the Board adopts

some but not all of the revisions to Part 309 advocated in the Proponents’ proposal.

GENERAL COMMENTS

In its earlier comments on the Proponents’ proposal, the ICA recognized the importance

of public participation in the NPDES permitting process but expressed our concern that the

proposed revisions to Part 309 could increase procedural delays in the NPDES permitting

process and could be abused by permit opponents to tie NPDES permits up in procedural

challenges.

We believe that the Board’s proposal generally rejects those rule revisions suggested by

the Proponents which have the greatest potential for abuse and delay, we support the Board’s

decision to reject those proposed revisions. We further believe that the Board’s rulemaking

proposal generally will not increase permitting delays. Our comments will specifically address

the proposed revisions to two sections of Part 309 with which we continue to be concerned.

COMMENTS ON SPECIFIC SECTIONS

Section 309.120 - This proposed new section would provide for reopening the public

comment period on proposed NPDES permits where the Agency has significantly modified a

draft permit. The ICA earlier commented that the Proponents’ proposed new Section 309.121,

which also provided for reopening the public comment period, was unnecessary and likely to

cause confusion. While the ICA is not fully convinced that Part 309 needs to be revised to

provide explicitly for reopening the comment period, we believe that the Board’s proposed

Section 309.120 is well drafted and should not create confusion.

The ICA would seek clarification of one point. Our understanding of the proposed rule

language is that while the Agency will be required to reopen the comment period if it finds that

‘4:

the final permit is ~nota logical outgrowth of the proposed draft permit, the determination

whether the final permit is a logical outgrowth is committed to the Agency’s sound discretion,

and that the Agency is not required to make specific findings as to each factor listed in

proposed Section 309.120(a)(1)-(4). Our concern again is that the proposed revision not be

misused to create additional procedural delays for permit issuance.

Section 309.143 - A new subsection (a) is proposed to be added to this section which

would require that the effluent limitations established in NPbES permits

“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.”

The proposed language is taken more or less verbatim from 30 CFR §122.44(d)(l)(i). As

a stylistic matter, the ICA would sugg~stthat for the sake of consistency with usage elsewhere

in Part 309, “any State water quality standard” should be “any water quality standard of 35 Ill.

Adm. Code 302, 30~or 304.”

The ICA would also suggest that if the Board elects to incorporate the language of

section 122.44(d)(l)(i) into Section 309.143, it might be helpful also to incorporate the language

of section 1 22.44(d)(l)(ii), which explains how the preceding subdivision is to be applied:

“(ii) When determining whether a discharge causes, has the reasonable potential

to cause, or contributes to an in-stream excursion above a narrative or numeric

criteria within a State water quality standard, the permitting authority shall use

procedures which account for existing controls on point and nonpoint sources of

pollution, the variability of the pollutant or pollutant parameter in the effluent, the

sensitivity of the species to toxicity testing (when evaluating whole effluent

toxicity), and where appropriate, the dilution of the effluent in the receiving

water.”

Consistent with our comment above, we would suggest that if the Board elects to

incorporate this additional federal language, the term “Agency” be substituted for “permitting

authority,” and the phrase “a water quality standard of 35 Ill. Adm. Code Part 302, 303 or 304”

be substituted for “a State water quality standard.”

Finally, the ICA would seek clarification that the language proposed to be added as

Section 309.143(a) is not intended to supersede or affect Section 309.103(c) or 35 Ill. Adm.

Code 406.203, which deal specifically with the application of water quality standards to NPDES

discharges from mining activities.

The ICA appreciates this opportunity to submit comments on the proposed revisions to

the Part 309 regulations.

Respectfully submitted,

Tay~’rPensoneau

President, Illinois Coal Association