1. Pollution Control Board
1
2
ORIGINAL
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
3
IN THE MATTER OF:
4
5
PROPOSED AMENDMENTS
TO:)
PUBLIC PARTICIPATION
)
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RULES
IN 35 ILL.ADM.
CODE PART 309 NPDES
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PERMITS AND PERMITTING
PROCEDURES
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Page 1
TAKEN
FOR:
24
TAKEN
BY:
L.A. Reporting
Kathleen
J.
Pacult,
CSR
R03-19
(NPDES Rulemaking)
REC~jv~D
CLERK’S
OFFICE
DEC
4
2003
STATE OF ILLINOIS
Pollution
Control Board
REPORT OF PROCEEDINGS
in the
above-entitled
cause before KATHLEEN
J.
PACULT, a
Certified Shorthand Reporter within and for the
County of Cook,
State of Illinois,
taken on the 19th
day of November
2003,
at the hour of 10:00 a.m.,
at
100 West Randolph,
Room 11-512,
Chicago,
Illinois.
Page 2
1
MS.
TIPSORD:
Good morning,
my name
is
2
Mary Tipsord and
I have been appointed by the Board
3
to serve as hearing officer
in this proceeding
4
entitled
In The Matter Of Proposed Amendments
To:
5
Public Participation
Rules
In 35 Ill.
Adm.
Code Part
6
309 NPDES Permits and Permitting
Procedures
Docket
7
number RO3-19.
To my right Dr. Tanner Girard,
the
8
lead Board member assigned to this matter.
Also
9
present are Board Members Nicholas
J. Melas
and
10
Michael Tristano who have also been assigned
to this
11
matter.
12
This
is the third hearing
to be
13
held in this proceeding.
The purpose
of today’s
14
hearing
is twofold.
First,
this rulemaking
is
15
subject
to Section
27(b)
of the Environmental
16
Protection Act
(Act)
.
415 ILCS
5/27 (b)
(2000)
17
Section 27(b)
of the Act requires the Board to
18
request the Department
of Commerce and Community
19
Affairs,
now known
as the Department
of Commerce and
20
Economic Opportunity
(DCEO)
to conduct
an economic
21
impact
study
(EcIS)
on certain proposed rules prior
22
to adoption
of those
rules.
If DCEO chooses
to
23
conduct
an EcIS,
DCEO has 30
to 45 days after such
24
request
to produce
a study of the economic impact
of
Page 3
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
In accordance with Section 27(b)
of the Act,
the Board has requested by letter dated
April
9th,
2003,
that DCEO conduct an economic
impact study for the above-referenced rulemakings.
On April
17,
2003, DCEO responded that DCEO does not
have the staff resources to perform EcIS studies on
Board rulemakings.
A copy of the letter is
available here at the front of the room.
The second purpose of this
is to hear any testimony and allow questions
testifiers.
Is there anyone that
I have not
to that wishes
to testify?
The order
in which we will
testimony is we will start with the Illinois
Environmental Regulatory Group with Katherine
and we will follow with Albert Ettinger, who
represents the proponent from this rulemaking,
and
also Toby Frevert
is here from the EPA if anyone has
questions of him.
hearing
of the
spoken
hear
Hodge,
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Anyone may ask
a question,
2
however,
I do ask that you raise your hand and wait
3
for me to acknowledge you.
After
I have
4
acknowledged you, please state your name and whom
5
you represent before you begin your questions.
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Please speak one at
a time.
If you are speaking
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over each other the court reporter will not be able
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to get your questions on the record.
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Please note that any question
10
asked by a Board Member of Staff are intended to
11
help build a complete record for the Board’s
12
decision and not to express any preconceived notion
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or bias.
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Dr.
Girard?
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DR.
GERARD:
On behalf of the Board,
I
16
would like to welcome everyone to the third hearing
17
in this rulemaking.
Even though this rulemaking did
18
not come to us as
a negotiated rulemaking,
I know
19
that the participants have spent
a lot of time since
20
it has been introduced to try to come to some
21
agreements on many of the areas,
and we are pleased
22
to see that that has occurred,
and we look forward
23
to the hearing today to further refine some of the
24
areas of disagreement.
And
I am sure that we will
Page
5
1
have a much better rulemaking because of your time
2
and participation.
So,
thank you.
We look forward
3
to your testimony and comments and questions today.
4
MS. TIPSORD:
Mr. Tristano?
5
MR.
TRISTANO:
No.
6
MS. TIPSORD:
With that we will begin
7
with the testimony.
8
MR.
MESSINA:
Good morning, my name
is
9
Alec Messina.
I am the general counsel for the
10
Illinois Environmental Regulatory Group.
I am here
11
today with Kathy Hodge,
who
is the executive
12
director for IERG,
and we have prepared some brief
13
testimony that she would like to present.
14
(Witness duly sworn.)
15
Good morning.
My name
is
16
Katherine Hodge,
and
I am Executive Director for the
17
Illinois Environmental Regulatory Group or IERG for
18
short.
On behalf of IERG and its member companies,
19
I want to thank the Illinois Pollution Control Board
20
for the opportunity to present this testimony today.
21
IERG is
a not-for-profit Illinois
22
corporation comprised of some 67 member companies
23
engaged in industry,
commerce,
agriculture,
and
24
other related activities,
that are regulated by
Page6
governmental agencies that promulgate,
administer or
enforce environmental laws and regulations.
IERG
was organized to promote and advance the interests
of its members before governmental agencies,
such as
the Illinois Environmental Protection Agency and the
Board,
as well as before judicial bodies.
Moreover,
IERG is an affiliate of the Illinois State Chamber
of Commerce,
which
is more than 5,000 members
in the
State
ERG submits the following
testimony
in response to the proposed rulemaking
entitled “Proposed Amendments To:
Public
Participation Rules in 35 I11.Adm.
Code Part 309
NPDES Permits and Permitting Procedures
(R03-19).”
IERG first became involved in this
matter in the fall of 2002,
at which time the
proponents began to circulate drafts of the proposal
to various interested parties,
including
representatives of the Illinois EPA and members of
the regulated community.
IERG reviewed the
proposal, participated in preliminarily hearings
held by the Board and reviewed comments and
testimony prepared by the various stakeholders,
and
reviewed with great interest the First Notice
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Opinion and Order issued by the Board.
In short,
0
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IERG concurs with much of the Board’s opinion,
while
3
still holding reservations regarding the need or
4
justification for this proposal.
Further,
we
5
believe that there
are several areas
in the proposal
6
that require further illumination on the part
of the
7
Illinois EPA through testimony and, potentially,
8
additional
fine-tuning of the language.
9
Turning then to the First Notice
10
language adopted by the Board,
IERG testifies as
11
follows:
12
Section 309.105(f)
and
(g):
For
13
the reasons expressed in the Board’s Opinion,
as
14
well as for the reasons set forth in IERG’s earlier
15
comments, we concur with the Board’s decision not to
16
proceed to First Notice with proposed new Sections
17
309.105(f)
and
(g)
18
Section 309.107(c):
IERG agrees
19
that this provision merely codifies a procedure that
20
the Illinois EPA is already in the midst
of
21
implementing,
and therefore concurs with the Board’s
22
decision.
23
Section 309.108(c):
Conceptually,
24
IERG concurs with the Board’s Opinion with regards
Page 8
1
to this provision,
as it remains our understanding
2
that this language is merely a codification of the
3
Agency’s current practice,
and does not place any
4
additional requirements upon the Agency.
We do,
5
however,
have some questions to ask later today
6
before reaching
a full understanding of the
7
potential impact
of this language.
8
Sections 309.108(3),
309.117,
and
9
309.123:
Changes to these three sections proposed
10
by the proponents concern the same issue
--
the
11
Agency record.
For a variety of reasons,
the Board
12
chose not to include or proceed with changes to
13
Section 309.117 and 309.123.
As the Board noted in
14
its Opinion,
and IERG concurs,
all documents that
15
would seemingly be covered by these changes must
16
already be
a part of the record based on the Board’s
17
existing procedural
rules.
With regards to Section
18
309.108(e),
however,
IERG requires additional
19
information we hope to obtain throughout the day
20
before being
able to comment sufficiently on this
21
provision.
22
Sections 309.109(a),
309.112,
23
309.119,
309.121,
309.122:
All of these sections
24
concern the same issue
--
the opportunity for
Page9
to
by
allowing further public comment in certain
circumstances.
In our earlier comments,
IERG noted
that we had very significant concerns with these
provisions, but were interested in further exploring
the compromise
language included by the Agency in
its comments.
IERG looks forward to hearing
testimony provided by the Agency with regards
this new language
(now found in the renumbered
309.120)
and how it will be implemented,
and likely
will have questions to ask of the Agency.
With
regards to the language stricken or not accepted
the Board in Sections 309.109(a)
and 309.122,
for
the reasons stated by the Board
in its Opinion and
for those reasons included in other stakeholder
comments,
IERG concurs with the ruling of the Board.
With regards to section 309.119,
IERG appreciates the Board’s inclusion of clarifying
language pertaining to effective dates at the very
end of the Section.
As mentioned in the comments
filed by IERG and other stakeholders,
this language
was developed and agreed to in a meeting following
one of the preliminary hearings scheduled by the
Board
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Section 309.113(a)
5 through
8:
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1
With regards to paragraphs
(6),
(7),
and
(8),
IERG
2
concurs with the decision of the Board.
The same
3
cannot be said for its handling or rationale
4
pertaining to paragraph
(5)that requires the Agency
5
to include
a summary of changes between
the public
6
notice permit and the previous permit.
7
IERG concurs with comments filed
8
by the Illinois EPA, which
is uniquely positioned to
9
offer
a position on this matter,
and other
10
stakeholders that the language in this new paragraph
11
is both not required and potentially costly and
12
burdensome to the Agency.
At
a time when the Agency
13
has an existing shortage of resources,
and in an
14
environment where
a typical permitting action can
15
take years,
the Agency should not be forced to
16
allocate additional
staff time to
a function that
17
can already be completed by
a diligent,
interested
18
party.
In this instance,
the benefit to the
19
environment does not equal
the cost to the Agency,
20
will likely add to the time and expense of
21
undertaking the NPDES permit writing effort,
and
22
will only delay a process which already takes
a
23
great deal of time now.
24
Section 309.143(a):
This
not
Page 11
provision was proposed by the proponents because
it
is included in the Code of Federal Regulations
(CFR)
and is
a required element of
a state NPDES program.
While
it
is taken nearly verbatim from 40 CFR
122.44(d) (1) (i), the proponents’
language does
include modifying language found immediately
following that section in the federal regulations.
IERG believes that Illinois’
Section 309.143 should
include,
in
a new subsection
(b), additional
federal
language that further explains an excursion or
violation of a state Water Quality Standard.
That
modifying language found at 40 CFR 122.44(d) (1) (ii),
provides
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
(Agency)
shall use procedures
which account for existing
controls on point and nonpoint
sources of pollution,
the
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variability of the pollutant or
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pollutant parameter in the
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effluent,
the sensitivity of the
4
species to toxicity testing
(when
5
evaluating whole effluent
6
toxicity), and where appropriate,
7
the dilution of the effluent in
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the receiving water.
9
By including some language found
10
within the federal regulations,
but not related
11
language that modifies the original language,
the
12
State and the Board runs the risk of creating a
13
situation ripe for misinterpretation.
14
Section 309.146 (a) (2)
and
(5):
15
This language was the subject of some discussion at
16
the stakeholder meeting after the second hearing.
17
Again,
IERG believes its concerns were addressed and
18
can support the language included by the Board
in
19
its First Notice Order.
20
That closes my testimony today.
21
Once again,
we would like to thank the Board for the
22
opportunity to provide testimony in this rulemaking
23
and look forward to participating
in the remainder
24
of this process.
I
Page 13
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MS.
TIPSORD:
Are there any questions
2
for Ms. Hodge?
3
We will go next to testimony by
4
Albert Ettinger.
5
(Witness duly sworn.)
6
MR.
ETTINGER:
I don’t have too much
7
to say here.
I believe the arguments for the
8
various proposals were presented in earlier
9
language,
and
I don’t want to waste anyone’s time
10
going over things that the Board has looked at
11
before.
12
I’ll say generally we pointed out
13
a number of,
shall we say,
safety mechanisms on the
14
ship that we thought were broken.
I think the Board
15
has fixed many of them.
We think there are
a few
16
that are not fixed,
and hopefully we will not come
17
into an emergency
for which those become important.
18
I just heard Ms. Hodge’s
19
presentation.
I am not prepared to react to all of
20
them.
21
The one
I would react
to now is on
22
143 IERG proposes to add an additional sentence or
23
another section to 143 after
(a)
that would add
24
further language from 40 CFR 122.
We have no
Page
14
1
objection to that.
2
I do have
a question of the Agency
3
also.
I want to ask
a question about procedure.
4
And some of Ms.
Hodge’s presentation presumes that
5
there was going to be agency testimony today or
6
further agency presentations.
That’s not my
7
understanding.
I had one question of the Agency so
8
I am glad they are here,
but
I was not expecting
9
that we were going
to hear a
lot from the agency.
10
MR.
FREVERT:
We
are
here.
11
MR. ETTINGER:
So
I guess my problem
12
is
if we were going to get
a whole
lot more
13
enlightenment from the Agency,
I think
it’s going
to
14
come in the form of the questions that we are going
15
to raise now than any further presentation.
That’s
16
my understanding.
17
With
that,
what
I
would
like
to
do
18
is ask just one
--
most of this has been hashed over
19
pretty well and if turns out that things don’t work
20
out,
we can always make another petition.
I have
21
one thing here though that
I think we should
22
clarify.
And that’s what
I would like to do is ask
23
the Agency,
does the Agency believe that given the
24
Black Beauty decision that the Agency may reopen the
Page 15
1
public comment record or comment period to receive
2
further comments if
it believes that further
3
submissions may assist the Agency to reach an
4
appropriate decision?
5
(Witness duly sworn.)
6
MR.
FREVERT:
If
I understand your
7
question right,
you are asking if we believe we have
8
the authority to extend the public comment to
a
9
second notice period and potentially even a second
10
round of hearing?
11
MR.
ETTINGER:
Right now we have
12
Section 121 and it provides circumstances
in which
13
the Agency shall allow written comment under various
14
circumstances.
My question
is just whether the
15
Agency feels whether
it now has authority that
it
16
may reopen the record for public comment following
a
17
hearing
if
it feels
it is necessary.
18
MR.
FREVERT:
Yes,
I believe we do.
19
MR.
ETTINGER:
Nothing further of the
20
Agency.
21
MS.
TIPSORD:
Any other questions foi
22
the Agency?
23
MR.
MESSINA:
I have several.
With
24
regards to Section 309.108(e),
can you please
Page 16
1
explain for the record, briefly touch on how the
2
proposed section would influence the Agency’s
3
current practice regarding identifying or
4
incorporating the documents in the Agency record?
5
MR.
FREVERT:
You are not talking
6
about the language in the first draft,
is that
7
correct?
8
MR. MESSINA:
I am talking about the
9
language in the Board’s First Notice.
10
MR.
FREVERT:
Well,
I hope
it won’t
11
require any change
at all because
I believe in
12
reality that we do that as
a matter of practice now.
13
MR.
MESSINA:
And following up on
14
that,
and also with regards to Subsection
(c)
before
15
that,
how would the Agency address the use
of
16
permitting
its best professional judgment in making
17
various permitting decisions?
18
MR.
FREVERT:
To the extent,
I guess
19
it all boils down to the science engineering staff,
20
evaluation of all the information and interpretation
21
of that.
And,
typically,
in drafting
a permit there
22
are actual review notes or analysis notes
that
23
reflect the engineer’s analysis and judgment.
There
24
are many other factors that go into that permit.
So
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typically they should be documented in writing
in
2
that regard.
3
MR.
MESSINA:
So then those notes,
4
those engineer notes would be included in whatever
5
documents that are made available?
6
MR.
FREVERT:
Certainly.
7
MR.
MESSINA:
Moving then to Section
8
309.113,
and specifically
(a)5,
in the Agency’s
9
comments filed after the second hearing,
the Agency
10
stated the re-issued permits are considered as
11
stand-alone permits.
In other words,
the Agency
12
reviews the requests as if
it were a request
£or a
13
new permit.
If that’s the case,
then why would
14
there be
a need for providing
a summary of change
in
15
the public notice permit and the previous permit?
16
MR.
FREVERT:
From my perspective
17
there
is no need for the Agency to the extent
--
I
18
guess to the extent that the interested member of
19
the public assumes the regulations and the
20
operational aspects of that facility are the same
21
now as they were five years ago or whenever that
22
permit was originally initiated.
It may be some
23
benefit
in seeing how that permit has changed, but
24
in reality, with ongoing federal requirements for
Page
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standard reviews and updates and operational changes
2
and expansions
and other things of these facilities,
3
many times
a renewed permit based on a new permit
4
application,
there are some fundamental things that
5
will indeed change.
And from my perspective,
the
6
more accurate and the more beneficial focus
is to
7
draft that permit based on the current
8
circumstances, not try to go back and modify an old
9
permit that probably is out of date and reflects
10
some regulations or operating factors that are not
11
pertinent for what we are considering in the current
12
re-draft.
So from my own personal perspective,
from
13
our basis and the public basis,
it’s probably more
14
important the fact sheet indicates what perimeters
15
are being regulated and what the regulation
is based
16
on, rather than how it relates to
a prior permit
17
some five year or more prior to that day.
18
There are,
of course,
situations
19
where nothing has changed,
and it may be
a straight
20
renewal, particularly with perhaps some of the
21
smaller environmentally less significant sources,
22
but for more of
a major or significant mainstream
23
source,
there
is almost always something that
is
24
different from the old permit, and therefore,
a
Page
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brand new permit
is in order
MR.
HARSCH:
A follow-up question to
that,
Toby,
on behalf of the Illinois Association of
Waste Water Agencies,
I take it with respect to
309.113
(a)5, you would not have any problem with
the deletion of the words
“and re-issued”
from what
has been proposed by the Board?
MR.
FREVERT:
Typically our current
practice is when we draft public notices and fact
sheets for modified permits,
we identify what the
modification
is.
For re-issued permits we try to
draft that fact sheet to reflect the new proposed
permit and
a regulatory basis and operating basis
that,
and not in relationship to some out-of-date
permit
o
I think the concept
is great
for the modification.
For the re-issuance,
it is
not as appropriate.
And it would not be
objectionable
to the Agency to strike those words.
MR.
MESSINA:
Toby,
moving on to
Subsection
(a)6 then also in 113, what would the
Agency include in the fact sheet
if the
anti-degradation analysis did not apply to a
particular permit
to
S
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MR.
FREVERT:
Typically
if
it’s
a
2
renewal
or
modification
where
there
is
no
increased
3
activity
being
authorized,
the
fact
sheet
would
4
indicate
that
anti—degragation
review
is
not
5
applicable
in
that
case.
6
MR.
MESSINA:
Then
to
section
309.120.
7
My
general
question
is:
I
was
hoping
you
could
8
explain
for
the
record
how
the
Agency
interprets
9
that
section,
and
how
it
would
implement
that
10
section?
I
think
specifically
to
try
to
get
that
11
discussion
going,
I
guess
the
first
question
would
12
be:
Does the Agency have to answer
--
let me move
13
to that section
--
would the Agency have to answer
14
no to all four of those
--
actually let me back up.
15
Can
you
give
me
some
explanation
16
or example of how the Agency plans on implementing
17
that
section,
the
analysis
it
would
seek?
18
MR.
FREVERT:
I believe as this
19
section
is structured,
those four sub-paragraphs are
20
examples of considerations or factors the Agency
21
would review in determining whether or not in its
22
judgment,
there was value added or benefit or
23
necessity to extend public comment to be public
24
content intent to the federal
law.
So in that
Page 21
1
regard,
the
four
obvious
factors
have
been
2
articulated
I
believe
in
case
law
somewhere
to
give
3
guidance
to
the
concept,
and
those
are
factors
we
4
consider
in
reaching
our
decision
and
judgment
5
whether
or
not
there
is
indeed
merit,
benefit
and
6
value
added
in
extending
public
comment.
7
Is
that
a
definitive
enough
answer
8
for
you?
9
MR.
MESSINA:
It’s
a
good
start.
10
With
regards
to
those
four
11
criteria,
would
the
Agency
have
to
answer,
no,
to
12
all
four
of
those
criteria
before
determining
that
13
another
public
hearing
would
be
necessary?
14
MR.
FREVERT:
I believe the
15
circumstances that fell within one of those four
16
categories
would
be
enough
to
justify
our
actions
if
17
we
decided
to
extend
public
comment.
18
MR. MESSINA:
I would like to
19
follow-up on Albert’s question with regard to this
20
section.
Would
this
section
allow
for
the
following
21
situation
to
occur:
On
the
final
day
of
the
comment
22
period,
a
participant
in
the
process
would
submit
23
public comments, would the applicant then have the
24
ability
--
would
the
applicant
then
have
the
ability
Page 22
to
submit
a
response
to
that
public
comment
after
the
close
of
the
public
comment
period,
and
could
the
Agency
still
utilize
that
information
provided
by the applicant?
MR.
FREVERT:
As a matter of practice,
to
the
extent
that
an
issue
has
arisen
during
the
public
comment
period
that
the
Agency
needs
to
address,
and
in
order
for
us
to adequately and
accurately
address
that
issue,
we
need
to
solicit
additional
information
from
the
data
source
or
secure
some
kind
of
information
from
the
permit
applicant
itself,
we
in
fact
need
to
do
that.
From
my
own
personal
perspective
the
objective
when
we
issue
that
permit
is
to
get
right,
and
if
at
the
close
of
the
comment
period
there
is
a
question
where
we
need
more
information
to make sure we get it right,
we will get that
information
There are some circumstances where
the
necessity
to
get
that
information
may
be
of
such
a nature that additional public comment opportunity
is appropriate,
and there are circumstances when
I
believe that
is not the case,
and we don’t need to
extend public comment period to get the information
it
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Page 23
1
to address and answer properly the question that had
2
arisen during the initial public comment period.
3
And,
typically,
I believe as
a matter of practice,
4
comments made by the public are directed not only to
5
the Agency,
but also to the permit applicant,
and as
6
the permit applicant and the recipient of that
7
permit application,
I believe they are entitled to
8
respond to the comments.
9
Quite frankly,
if the comment
10
comes in at 5:00 o’clock on the last day of the
11
comment period,
then obviously their ability to
12
respond
to
those
comments
is
going
to
come
over.
13
Those
are
not
public
comments.
Those
are
14
supplements to the permit’s application in my mind.
15
MR. MESSINA:
I have a couple other
16
questions but
I need a couple moments.
If anyone
17
else has
18
MR.
HARSCH:
Toby,
it’s my
19
understanding under 309.120 as currently drafted,
20
before the Agency would make a determination to
21
reopen the public comment period, you first would
22
have to make a determination that you had
23
significantly
modified
the
draft
permit,
the
final
24
permit
from
the
terms
of
the
draft
permit;
is
that
Page 24
Roy,
I
correct,
before
you
would
look
at
the
next?
MR.
FP.EVERT:
You have to repeat
that,
was
partially
focused.
MR. HARSCH:
It really is
a two-part
test,
is
it
not?
The
first
test
is
that
there
has
to
be
a
significant
modification
in
the
final
permit
from
what
was
originally
public
noticed,
is
that
correct?
MR.
FREVERT:
I believe
I am reading
the language the way you have explained it,
yes.
MR.
HARSCH:
So can you explain for
the record what you would view as examples of
significant modifications or changes that would be
significant?
MR.
FREVERT:
You know,
I
some examples,
but I’m not sure
I could
whole litany of possibilities
MR.
HARSCH:
I understand that.
MR.
FREVERT:
If there are some
additional
activities
taking
place
within
that
operation.
It has an additional
waste source or
additional
pollutant
load
that
was
not
evident
or
not represented
in the original application in the
original draft permit,
that we are now regulating
can identify
identify
the
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Page 25
1
another whole entity,
and it’s
a substantially new
2
concept from what was required in the original draft
3
permit and the original round of public comment.
4
MR.
HARSCH:
A change to an effluent
5
limitation in the permit would not normally be
a
6
significant
change, would it?
7
MR.
FREVERT:
I would say
a change to
8
an effluent limitation or
a monitoring schedule in
a
9
permit is
a common and typical reaction to public
10
comment.
We do that quite often,
and that in and of
11
itself
is the result of the comment,
not the need to
12
duplicate the comment.
13
MR. MESSINA:
I am confused by what
is
14
meant by item four.
It seems
to me that anytime you
15
change
a permit, you would be attempting to respond
16
to comments made during
a public comment period.
17
Can you provide some guidance on
18
how the Agency interprets this subsection or whether
19
it even provides any meaningful criteria by which to
20
judge whether an additional extended public comment
21
period is necessary?
22
MR.
FREVERT:
To
a
certain extent this
23
particular language came out of our,
for lack of
a
24
better word,
I’ll use the term negotiating session
Page 26
with all the interested parties in this case,
and
I
believe some of those parties thought there was
a
perception that this added some additional detail
in
terms of concepts in the criteria that one would
consider by the Agency in determining whether to
reopen public comment or not
Personally,
I
think
it
may
be
redundant,
and I’m not sure
it adds a lot more
detail
in another way it explains some of the prior
paragraphs.
I’m not sure
I could tell you how that
directs the Agency or gives the Agency criteria that
is fundamentally different than subparagraphs
(1),
(2),
and
(3)
.
To the extent other people think it
may,
I’m receptive to hearing that
MR.
MESSINA:
Basically you cannot
provide any guidance as to how that’s
a useful
subsection?
MR.
FREVERT:
Not at this particular
moment.
I don’t believe it’s in conflict with the
other
language
MR. MESSINA:
I have two more
questions.
Moving to Section 309.143(a),
I was
wondering if you could explain for the record what
criteria the Agency would use to make the
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Page 27
1
determination embodied in that subsection?
2
MR.
FREVERT:
What criteria?
Let me
3
start with the most common.
The most common thing
4
that
comes
to
mind
is the terminology that the EPA
5
refers
is reasonable potential to exceed water
6
quality standards.
And there are
a series of
7
analytical
techniques and equations and supporting
8
information in federal manuals on how to do that
9
analysis, and what kinds of factors and
10
considerations and conservative assumptions to place
11
in
those
analyses.
12
Typically
that
reasonable
13
potential analysis
is designed to used for existing
14
waste
water
discharge
where
there
is
a
historic
15
database, and it’s
a statistical analysis of the
16
historically based data.
17
In cases where there
is
a new
18
source
and
there
is
no
historic
database,
it
could
19
be
a number of things.
We would certainly review
20
the information and the permit application itself,
21
the nature of the operation,
the estimates of the
22
waste generated,
amount of water used,
the
23
waste-generated predictions
of what kind of
24
discharge
is actually being requested for
Page 28
authorization, and compare those discharge
characteristics
to
the
location
they are going to be
discharged,
and what water quality standards and
allowances
and
other
water-quality
related
activities
need
to
be
analyzed
Of
course,
in
addition
to
that,
we
also
incorporate
discharge
limitations
based
on
federal
or
state
technology
efforts.
And
so
this
paragraph pertains to those limitations
in a permit
that are driven specifically by water quality.
MR.
MESSINA:
If
we
could
jump
back
quickly,
I missed one question
I wanted to ask
earlier.
This is in regard to 108(e).
This
is
follow-up to your earlier answer.
My question
simply:
In providing the documents supporting
decision,
is
a
permit
engineer
going
to
have
to
identify
all
of the textbooks they have utilized
throughout
their
decision-making
process?
I am trying to understand the
limit
of
what
kind
of
information
you
are
referring
to.
MR.
FREVERT:
I don’t envision
requiring
my
staff
to
bring
in
all
their
college
textbooks
and
list
them
in
every
permit
they
are
a
is
the
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Page 29
1
asked
to draft.
2
If there
is
a
particular
piece
of
3
literature or technical publication that has a very
4
focused and specific utilization in there,
we
5
definitely want to identify that.
To the extent
6
that it’s general engineering and mathematical,
7
statistical,
chemical information, part of their
8
general expertise and commonly available material,
9
we don’t intend to itemize those documents into the
10
record.
11
Every now and then we even use
a
12
dictionary to make sure we spell our words properly.
13
MS.
TIPSORD:
Any other questions?
14
DR.
GIRARD:
I have a general
15
question.
The concern has been raised that some of
16
the language in this First Notice might add to the
17
workload of the Agency,
and thereby,
under the
18
current budgetary situation,
create
a situation
19
where
it may take longer to issue these MPDS
20
permits.
Do you see any of the areas
in this First
21
Notice proposal that may add to the Agency workload
22
and,
therefore,
take longer to issue
a permit?
23
MR. FR~VERT:
Again,
other than that
24
reference to summarizing an expired permit that’s
Page 30
1
part of our summary,
that probably would add some
2
increment
of
additional
workload.
In
terms
of
the
3
other
language
added,
I
believe
in
my
mind
this
4
language
is
indeed
consistent
with
the
whole
concept
5
of
public
participation
in
both
federal
law
and
our
6
program.
It’s
a little more perhaps current
7
direction and clarity to what’s intended,
and it
8
probably
will
mean
some
increment
of
additional
9
workload,
but
I
think
it’s
inherent
upon
us
to
make
10
it happen..
11
Quite
frankly,
this
program
would
12
be
a lot easier if there was no public participation
13
program,
but there
is.
Let’s try to do
it fair and
14
correct and openly.
15
We have capable people.
We could
16
read and write and we understand science,
and we
17
could
write
permits,
and
I
believe
those
permits
18
would be good.
I believe there
is some advantage to
19
public participation.
20
DR.
GIRARD:
I think you can make that
21
statement about government in general,
but if you
22
did
not
have
public
participation,
you
could
do
23
things
much
more
quickly.
I
don’t
think
it
means
24
they
would
be
better.
In
fact,
historically,
things
Page 31
1
get worse,
so thank you for the comment.
2
MS. TIPSORD:
Anything further?
3
MR.
ETTINGER:
I have one question.
4
Does
it add anything to the Agency’s workload when
5
citizens get confused about what’s being proposed by
6
a permit and request hearings or make comments
7
because they didn’t understand?
8
MR.
FREVERT:
Do you want to answer
9
the question?
10
MR.
ETTINGER:
I can speak as the
11
confused.
12
MR.
FREVERT:
I agree with what you
13
are saying, but
I think the more fundamental issue
14
is how much extra effort
is going to actually avoid
15
how much inherent confusion is out there any way.
16
The best fact sheet we could ever
17
write,
the best public notice we could ever put out,
18
the best upfront public outreach we do,
we are
19
dealing with the full population of the state and
20
there are always going to be people that need a
21
little more explanation that comes with the
22
territory.
23
MR.
HARSCH:
One follow-up,
one new
24
question.
The very last provision,
309.146(d).
Page 32
1
It’s my understanding
--
is this
a continuation of
2
the Agency’s present practice in terms
of what’s
3
going to be specified as requirements in the permit?
4
MR.
FREVERT:
Yes,
I believe
it
is.
5
MR. HARSCH:
And you currently do not
6
tell
a municipal treatment plant how to calibrate
7
meters or do calibration tests or do BOD tests or
8
anything like that?
9
MR.
FREVERT:
No,
I beg to differ to
10
some extent.
Both in our specific requirements and
11
our standard conditions requiring monitoring,
there
12
is reference to things like standard methods,
13
improved methods,
which indirectly does specify
14
that.
15
MR.
HARSCH:
But you don’t specify in
16
the permit what the method is?
17.
MR.
FREVERT:
Again,
Roy,
as
a general
18
rule you are correct with individual permits and
19
specialty perimeters where
there may not be readily
20
available standard methods and
a specific method has
21
to be developed,
we have the flexibility and
22
authority and indeed the practice of addressing
23
those issues on an as needed basis.
24
And some permits have a lot more
Page 33
question.
My
specificity about monitoring requirements than
others.
Some permits even require the approval
of
a
quality assurance monitoring plant before the
monitoring
is initiated.
So
I think our common
practice is to utilize these requirements to create
an extent necessitated by the complexities and the
nature of the individual practice.
A routine pH
measurement,
we don’t go into as much detail.
MR. HARSCH:
Nothing further.
MR. TRISTANO
I have
a general
question
is:
Who proposed this rule?
MR.
ETTINGER:
We proposed the rule
and after
--
I forget whether
it was the first or
second hearing in April,
it became clear that there
were some things that we were going to have
a hard
time agreeing on.
Some people had concerns about
language.
I find that hard to believe,
but
it
happened.
So there was
a meeting and we were able
to work with the language and come up with some
things, which people were more comfortable with or
some people were more comfortable with,
particularly
between us and the Agency
In that meeting,
representatives
of the regulated community did participate.
They
my
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Page 34
1
made helpful suggestions.
They did
--
many of their
2
suggestions were accepted.
They did not however
3
commit that they would support the rule based on our
4
accepting their suggestions,
so they are here to
5
come in after that meeting.
However,
as
a result
of
6
that meeting much of the language was agreed to at
7
least between the Petitioner’s and the Agency,
and
I
8
think also to some extent the regulated community
9
has accepted some of the rules as proposed as
a
10
result of those discussions.
11
MR. TRISTANO:
The question was made
12
on section 309.120 about
(a)4,
and
I think the
13
Agency suggested that that was compromised language
14
submitted by one of the participates
in the
15
negotiation,
and
I got from the Agency’s answer it
16
was not the Agency.
17
I am just curious whose language
18
that was?
19
MR.
FREVERT:
Let me try to clarify.
20
Sierra Club petitioned the Board to initiate the
21
rule.
We as a state agency are more or less
22
involved in all rulemakings,
and at the close of
23
those initial records when we were looking for First
24
Notice position,
we volunteered to try to address
Page 35
the rulemaking and come up with language that we
thought would accommodate most of the issues
the
Board had to deal with in a fashion that represented
a language that we could live with,
and also
a
language that we thought addressed and minimized a
number of disagreements or conflicts with the other
parties.
And in that regard,
we submitted this and
indeed it is our specific recommendations to the
Board and some of the words were offered by the
parties
MR.
TRISTANO:
Which party?
MR.
ETTINGER:
Frankly,
I can’t
remember who suggested all the wording.
I remember
as to 120,
I had something else that was proposed.
Much of my language was taken from the federal
procedures.
People weren’t happy with that.
I believe Mr.
Sofat came in with a
proposal that looked at
120; however,
I believe
there was further discussions around the table
changed 120,
and
I know line for line what now
exists in
120,
I can’t remember who came up with
which words
MR.
FREVERT:
Towards the end of the
discussion Fred Andy recognized that he thought he
that
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Page 36
1
could take the lead on crafting the words
to depict
2
the concept we were discussing,
and
I believe these
3
exact words came from Fred.
4
MR.
TRISTANO:
But
I want to make
5
sure,
one last question,
and
I think you guys have
6
been very helpful.
I want to follow-up.
This
7
section is
a two-part test,
is it not?
Because as
I
8
understand
it, you have to fulfill what
is in
(A)
9
and one or more of what’s
1,
2,
3 and 4;
is that
10
interpretation correct?
11
MR.
ETTINGER:
Is that addressed to
12
me?
13
MR.
TRISTANO:
I am seeking
14
information.
15
MR.
ETTINGER:
In general,
I would
16
focus on shall.
It says they shall
if they
17
significantly modify a draft permit and weighing
18
these factors,
they feel that further written
19
comment
is necessary.
So that’s the way it’s
20
drafted as to shall,
and so
I agree with you,
it’s a
21
two-part test.
If they don’t modify the permit at
22
all,
then we never consider those factors.
23
MR.
FREVERT:
I would give you a
24
different answer.
I don’t believe it’s
a two-part
Page 37
1
test.
The Agency makes the determination with good
0
2
cause and reason to extend comment,
and in making
3
that determination these are some of the factors and
4
the thought process.
5
MR. TRISTANO:
Let me make sure.
The
6
reason
I said it’s
a two-part test
is the first
7
test,
as
I understand this,
is that there was a
8
major modification,
significant modification.
Now
9
if that’s the case,
then you look to
1,
2,
3 and 4.
10
.
If there
is no mOdification,
the
11
way
I understand the language,
I want to make sure,
12
you don’t look to
1,
2,
3,
and
4.
13
MR.
FREVERT:
In that context,
I agree
14
with you.
15
MR. SOFAT:
The test has to be
16
significant modification,
and it
is not
a logical
17
outgrowth of the draft order.
And how do we
18
determine that?
That’s where
1,
2,
3 and
4
comes
19
in.
20
MR.
TRISTANO:
I am done.
Thank you.
21
MR.
ETTINGER:
I have one question
22
actually of Ms. Hodge
if she wants to answer
it,
23
which is that
I asked Toby whether or not he
24
believed the Agency had authority to reopen the
Page 38
1
1
hearing
--
this
is not shall,
but may reopen the
2
comment period after the hearing
if
it believes it’s
3
necessary.
My question to IERG is:
Do you agree
4
that the Agency has that authority?
5
MS. HODGE:
We have heard the Agency’s
6
testimony.
We would probably reserve on this until
7
the written comments because
I personally can’t
8
answer that.
I don’t know whether they have the
9
authority.
We will address that in our comment.
10
MR.
ETTINGER:
I commend her for being
11
a much more careful and thoughtful lawyer than
I am.
12
MR. HARSCH:
Sanjay, you invited some
13
clarification on 120,
can you provide any further
14
illumination of how subsection
4
is useful.
15
MS. TIPSORD:
Before you answer that,
16
we need to have you sworn
in.
17
(Witness duly sworn.)
18
MR.
SOFAT:
Now
I forgot the question~
19
One thing
I would like to stress here
is that this
20
section
is not going to be used very often.
It’s
21
only going to be in situations where
--
and
I don’t
22
think
I could provide
a technical example
--
but
23
only where we have situations like Toby tried to
24
explain,
which requires additional public
Page
39
participation because the public participation on
a
particular issue was either totally missing or not
adequate at all at the beginning or at the draft
permit stage.
So that is how we envision
--
that’s
how we envision this section to play the role.
It’s
not going to be
a frequent use of the section.
MR.
HARSCH:
The whole section
is not
going to be used very often.
Can you provide any
further illumination of what subsection
4 might
mean?
Again,
it seems any change you
be responsive to public comments
and,
you would always be able to satisfy that
or maybe I’m not reading
it right.
MR.
SOFAT:
I am going to qualify my
answer by saying it’s not in my legal memorandum
right now.
But the way
I read this condition is
that it’s very similar to number
1.
If
a condition
or
a modification efforts because of the comments
provided by a party,
then it
is not going to
trigger
Like Toby was saying,
we are going
to get comments and we are going to make changes to
the permit.
That should not trigger 309.120.
And I
make would
therefore,
condition,
10
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Page 40
1
guess
4
is confusing because
1,
2,
3 says the
2
parties could not have reasonably anticipated the
3
final permit and
if the answer is yes,
then you use
4
it.
On the other hand,
number
4 says the changes
5
made in the final permit represent an attempt by the
6
Agency,
if the answer
is yes,
then you don’t use
7
120.
8
MR.
HARSCH:
You have covered
it.
No,
9
no, no and yes.
10
MR.
ETTINGER:
Or it’s
a factor to be
11
considered.
12
MS.
TIPSORD:
Anything further?
13
MR.
ETTINGER:
I would like to say
14
it’s the
--
if someone really wants to cut that,
15
that was,
as
I
said,
the result of this discussion
16
and we didn’t challenge
it because
it was part
of
17
the discussion,
and we thought someone else at the
18
table wanted this.
Frankly,
I’m not sure which way
19
that
4 will cut in some cases.
And
I would say
20
again these are factors to consider which
is what
21
the rule says.
It doesn’t
--
you have a whole lot
22
of
1 and
a little bit of
2,
those would be factors
23
to consider and it doesn’t give an automatic
24
trigger.
Page 41
1
MS.
TIPSORD:
Anything further?
Go
2
off the record for a moment.
3
(Off the record
4
discussion.)
5
MS.
TIPSORD:
Back on the record.
6
After
a discussion held off the record,
the comment
7
period will close 45 days after the receipt of the
8
transcript
from this hearing.
I’ll follow with a
9
written hearing officer order to all participants
10
notifying them of the closing comment period.
At
11
that time,
the Board will take into consideration
12
all your testimony and the comments and proceed.
13
I want to thank you all.
This has
14
been a very helpful hearing and
I appreciate
it.
15
DR.
GIRARD:
Let me also thank
16
everyone for their time and effort.
The fact that
17
we have narrowed the areas of disagreement down to
18
such a short list now compared to what they were at
19
the beginning of this rulemaking,
is
a real
20
testimony to the amount of time and effort
that
21
everyone has put into it.
And the Board
is very
22
grateful that you have reduced our workload in this,
23
and it’s because you have done so much work and we
24
do appreciate
it.
Thank you.
MS.
TIPSORD:
further,
we are adjourned.
Page42
If there
is nothing
Thank you all.
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STATE OF ILLINOIS
COUNTY OF
C 0 0 K
SS.
Page
43
KATHLEEN J.
PACULT, being first duly
sworn,
on oath,
says that she is the court reporter
who reported in shorthand the proceedings had of the
said cause,
and that the foregoing is
a true and
correct transcript of her shorthand notes so taken
as aforesaid
KATHLEEN
J. PA~T,
C.S.R.
C.S.R.
License
~ 084-004180
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answer20:12,13
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ability 21:24,24
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________________
Board’s4:11 7:2,13
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brand 19:1
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allowances 28:4
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allowing
9:1
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15:3
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19:3
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27:10
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32:22
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adequate 39:3
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authority
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analyses 27:11
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characteristics 28:2
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authorization28:1
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administer 6:1
19:23
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2:2,8,9
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adopted7:10
27:13,15
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available 3:3,13
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advance6:3
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43:9
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clarification
38:13
clarify
14:22 34:19
clarifying 9:17
clarity
30:7
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33:14
close
22:2,15 34:22
41:7
closes 12:20
closing 41:10
Club
34:20
Code 1:6
2:5
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codification 8:2
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college
28:23
come
4:18,20 13:16
14:14 23:12 33:19
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23:10 27:4
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comment 8:20 9:1
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1,1,8,13,16
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comments 5:3
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