RECE~VEDCLERK’S

OFHCE

BEFORE THE LLINOIS POLLUTION CONTROL BOARj~1

202004

STATE

OF

ILUNOIS

Poflution Contro’ Board

iN THE MATTER OF:

)

PROPOSED AMENDMENTS TO:

)

P~T 309 S~P~T A

-

)

S

35

Iii. Adm Code

309.105,

309.7, 309.8,

)

309.9, 309.10, 309.12, 309.13, 309.14,

)

R03-19

309.117, 309.119, 309. 143, 309.147; and

)

PROPOSED 35 I1l.Adm, Code 309.120

)

through 122

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NPDES PERMITS AND

)

PERMITTING PROCEDURES

)

NOTICE OF FILING

PLEASE TAKE NOTICE that the Environmental Law and Policy Center ofthe Midwest,

Illinois Chapter ofthe Sierra Club, and Prairie Rivers Network have filed Petitioners’ Comments

on Proposed First Notice Rule.

Albert F. Ettinger

(

C # 3125045)

Counselfor Petitioners Environmental Law & Policy

Center, PrairieRivers Network and Sierra Club

Environmental Law & Policy Center

35 E. Wacker Dr. Suite 1300

Chicago, Illinois 60601-2110

312 795 3707

January 20, 2004

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)

R03-19

~‘t

BEFORE THE ILLINOIS PCIflUTION CONTROL BOARD

JA~2320Uk

STATEt~utiOflOFCoflttot~LUNO~SBoar

iN THE MATTER OF:

S

)

PROPOSED AMENDMENTS TO:

)

PART 309 SUBPART A

-

)

35 Ill. Adm. Code 309.105, 309.7, 309.8

)

309.117, 309.119, 309.143, 309.147; and

)

PROPOSED 35 Ill. Adm. Code 309.120 through

)

122

-

NPDES PERMITS AND PERMITTING

)

PROCEDURES

PETITIONERS’ COMMENTS ON PROPOSED FIRST NOTICE RULE

Petitioners Environmental Law and Policy Center ofthe Midwest, Illinois Chapter

ofthe Sierra Club and Prairie Rivers Network (collectively “Petitioners”) are pleased that

the Board through its Opinion and Order of September 4, 2003 (“First Notice Order”)

has seen fit to adopt a number ofproposals that will substantially improve Illinois

NPDES permitting procedures and permits. Petitioners in these comments on the First

Notice Order will not reargue broadly matters that were debated prior to the First Notice

Order. Instead, these comments will focus on four matters that are raised by the testimony

givenin the November 19, 2003 hearing in this proceeding.

First, testimony given in the November 19, 2003 hearing made clear that one

matter not resolved by the Board’s First Notice Order really should be addressed in this

proceeding. As discussed below, the Board should clarify that IEPA has the authority to

reopen a permit proceeding to receive further public comment ifIEPA believes that a

better decision may be made if it reopens the. record. Petitioners offer language to

accomplish this result to be added by the Board to 309.120.

1

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As to two provisions, representatives ofthe regulated community during the

November 19 hearing suggested changes to the First Notice Order with which Petitioners

agree. These changes are deleting 309.120 (a)(4) and adding a sentence to 309.143(a) of

the proposed First Notice Order.

The changes as to 309.120 and the change as to 309.143(a) Petitioners now

propose are attached as Petitioners’ Proposed Final Rules Changes.

Finally, there were suggestions during the November 19 hearingby various

parties that the Board erred in requiring in proposed 309.11 3(a)(5) that there be a

summary ofproposed permit changes in fact sheets as to reissued permits. Petitioners

believe that the Board did not err and 309.1 13(a)(5) should be adopted as provided in the

First Notice Order.

I.

Agency has discretion to reopen the public comment period.

Testimony given in the November 19 hearing makes clear that there is a very

important procedural matter, that. is not clear in the existing rules, that the Board should

resolve. On a critical procedural point that will undoubtedly eventually arise in a permit

proceeding, IEPA and members ofthe regulated community are not in accord. IEPA

believes that it has authority to reopen a proceeding for further public comment after a

permit hearing but it is apparent that this is not clear in the eyes ofthe regulated

community.

Toby Frevert, the witness forthe Agency, testified as follows:

Q:

Does the Agency believe that given the Black

Beauty decision that the Agency may reopen the public

comment period

...

to receive further comments if it

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believes that further submissions may assist the Agency to

reach an appropriate decision?

Mr. Frevert: IfI understand your. question right, you

are asking if we believe we have the authority to extend the

public comment to a second notice period and potentially

even a second round ofhearing?

Q:

Right now we have Section 120 in the First

Notice Order and it provides circumstances in which the

Agency shall allow written comments under certain

circumstances. My question is just whether the Agency

feels whether it now has authority that it may reopen the

record forpublic comment following a hearing if it feels it

is necessary.

Mr. Frevert: Yes, I believe we do. (Tr. 14-15)

Later in the November 19 hearing, the question was posed to the witness for the

Illinois Environmental Regulatory Group (“IERG”), Katherine Hodge, whether she

believes that the Agency may reopen a record to receive further testimony:

Q:

I asked Toby whether or not he believed the

Agency had authority to reopen the hearing

—

this is not

shall, but mayreopen the comment period after the hearing

if it believes it’s necessary. My question to IERGis: Do

you agree that the Agency has that authority?

Ms. Hodge: We have heard the Agency’s testimony.

We would probably reserve on this until the written

comment because i personally can’t answerthat. I don’t

know whether they have the authority. We will address that

in our comment. (Tr. 37-8)

Petitioners are eager to learnERG’s answer to this question, but it really does not

matter what IERG now writes. Ifthe attorney who may well be the leading authority on

the Illinois Environmental Protection Act and the Board rules caimot personally answer

whether the Agency can reopen the record to receive further public comment after a

hearing, the Board really should clarify the matter. Even if IERG in its written comments

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agrees with Mr. Frevert that the Agency does have authority to reopen the comment to

receive further testimony, we all know with moral certainty that some permit applicant in

.the future, whose permit was affected by the Agency deciding to reopen the record, will

not see matters that way.’

It is clear that the Agency should have discretion to reopen the period forpublic

• comment if it believes that such further comment will improve its decision-making. Facts

may be learned during the comment period about the presence of drinking water or

recreational uses ofa receiving water, endangered species or other matters that may

require that a permit be reconsidered by the Agency in a new light. The Agency believes

it is entitled to go to the permit applicant, even after the close ofthe comment period, to

learn facts necessary to address facts raised during the comment process. (Frevert

Testimony, November 19, 2003, Tr. 22-23). The Agency certainly should also be

allowed to seek information from the public, as it now believes Qerhaps erroneously) that

it can do. (Ibid.)

Accordingly, Petitioners reassert that language that makes clear that the Agency

has authority to reopen the public record should be added to the rules. Petitioners propose

a new Section 309.120(b) that states simply:

The Agency may reopen the public comment period to

receive further comments if it believes .that further

submissions may assist the Agency to teach and

This proposedappropriatenew

decision.provision2

would not give the Agency any authority that it does

not believe that it already has. The newprovision would serve to eliminate a big dispute

‘Such a disgruntled permit applicant would have a strong argument based on the Black Beauty decision

which indicates that the Agency does not have authority to reopen the record unless the Board gives it such

authority through a change in the rules. See Petitioners’ Post Hearing Comments, filed 6-13-03, pp.

5-7,

19.

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just waiting to happen. The language is set forth in Petitioners’ Proposed Final Rule

Changes that is attached to these comments.

II.

hearing to Sections 309. 120(a)(4) and 309.143(a).

Two matters were brought

up

during the November

19

hearing

on which

there

was consensus that minor revisions to the First Notice Order are appropriate.

There was considerable discussion during the November 19 hearing ofthe

probable effect ofproposed 309.120(a)(4). Petitioners believe that a consensus was

reached that 309. 120(a)(4) adds confusion. The Agency should order the comment period

reopened if the answer to any ofthe questions posed by 309.120(a) (1), (2) or (3) is

“yes”, but a “yes” answer to the question posed by 309. 120(a)(4) is not determinative.

(Mr. Sanjay Sofat, November 19 Tr.39-40). Thus, it is best to simply delete (a)(4).

The language ofSection 309.143(a) ofthe First Notice Order is taken directly

from a governing federal regulation, 40 CFR 122.44(d)(1)(i). During the November 19

hearing, Ms. Hodge testified that an additional sentence ofthat regulation, 40 CFR

1 22.44(d)(1)(ii), should be added to the Illinois rules (Tr. 11-12). Petitioners agree and

the sentence ERG proposes to add is contained in Petitioners’ Proposed Final Rules

Changes.

III.

The Board should not change Proposed Section 309.113.

With one exception, Petitioners and the Agency agreed on the information that

should be added to the fact sheets. The difference ofopinion related to 309.113(5) as to

2

Current provisions 309.120 (b) and (c) would be re-lettered to accommodate the new

5

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which the Agency did not agree that it should summarize any changes in reissued

permits. The Board agreed with Petitioners on this issue in its First Notice Order.

At the November 19, 2003 hearing, various parties attempted to portray the

Board’s decision on this point as a monumental imposition on the Agency. It is not.

The Agency already as to proposedpermit modifications generally describes in a

few sentences what modifications are being proposed (see e.g. Ex. A). No one has

suggested that providing such a description as to modifications is bankrupting the

Agency. Actually, providing such a description is probably saving the Agency money

because members ofthe public are not getting excited about things that it is not proposed

to change and are notmaking phone calls, Freedom .ofInformation Act requests, or

hearing requests about matters that are not at issue.

While it is true that theoretically the whole NPDES permit should be reconsidered

as to a reissued permit, no one claims that typically many ofthe permit limits or

conditions actually change on a reissued permit.3 In virtually all cases in which a permit

is reissued it will be no more difficult to describe the changes from the old permit than it

is in the case ofmodifications. In the rare case in which large portions ofthe new permit

are different from the prior permit, the Agency can simply say in its “summary” that the

much ofthe permit has been changed and that members of the public interested in the

changes should carefully compare the proposed permit with the old permit.

While it maybe a little more trouble for the Agency to add a couple sentences to

This is unfortunate. The Clean Water Act established as a national goal the elimination of all discharges

by

1985.

33 U.S.C. §1251(a)(l). When the Act was enacted in 1972, it was expected that National Pollutant

Discharge

Elimination

System permits would only be issued until technology was developed to eliminate

discharges and NPDES discharge limits would be tightened over time until there were no discharges.

Rodgers, Jr., W.H. Environmental Law, Second Edition (1994) pp.361-62.

6

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the fact sheet on a reissued permit that generally describes the changes from the

old permit, this information is very useful to the public.4 The only other good way to

track changes is to file a Freedom ofInformation Act request on the Agency to get the

old permit and then compare the draft permit with the old permit line by line.

Further, while there does not seem any scientific manner to weigh the relative

costs, we believe that it will ,save the Agency resources in the long run to include this

information in fact sheets on changes to reissued permits. It does not take many instances

ofmembers ofthe public getting confused and, as a result, requesting documents or

hearings as to permits for which no change is proposed to outweigh whatever savings

may arise from not having to add a few sentences on changes to the fact sheets.

CONCLUSION

The Board should revise Sections 309.120 and 309.143(a) as proposed in

Petitioners’ Proposed Final Rules Changes and should not make any other changes to the

First Notice Order.

Respectfully submitted,

Albert F. E inger

Counselfor Petitioners ELPC, Prairie

Rivers Network and Sierra Club

Environmental Law and Policy Center

35 E. WackerDr. Suite 1300

Chicago, Illinois 60601-2110

January 20, 2004

“Actually, members of Petitioners originally assumed that nothing changed on a “reissued” permit and

failed in some changes to note important changes. We have no doubt that some members of the public are

still confused by this terminology.

7

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and italics.

Section 309.120

Reopening the Record to Receive Additional Written Comment

a) The Agency shall order the public comment period reopened to receive

additional written comments where the Agency significantly modifies the draft

permit and the final permit is not a logical outgrowth ofthe proposed draft

permit. In determining if the final permit is a logical outgrowth ofthe draft

permit, the Agency shall consider the following:

1) Whether the interested parties could not have reasonably anticipated

the fmal permit from the draft permit~

2)

Whether a new round ofnotice and comment would provide interested

parties the first opportunity to offer comments on the issue;

or

34 Whether the provisions in the final permit deviate sharply from the

concepts included in the draft permit or suggested by the commenters

op

4) Whether the chan~csmade in the final permit represent an attempt

by the

A~cncy

to respond to suj~estionsmade by commenters.

b)

The Agency may reopen the public comment period to receive

further

comments if it believes that further submissions may assist the Agency

to reach an appropriate decision.

th)

The public notice of any comment period extended under this section shall

identify the issues as to which the public comment period is being

reopened. Comments filed during the reopened comment period shall be

limited to the substantial new issues that caused its reopening.

de)

For the notification purposes, the Agency shall follow the public notice

requirements ofSection 309.109.

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SUBPART A: NPDES PERMITS

Section 309.143 Effluent Limitations

a)

Effluent limitations must Control all pollutant or pollutant parameters

(either conventional, nonconventional, or toxic pollutants) which the

Agency determines are ormaybe discharged at a level which will cause,

have the reasonable potential to cause, or contribute to an excursion above

any State waterguality standard, including State narrative criteria forwater

quality.

When determining whether a discharj~’ecauses, 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 ofpollution, the variability of

the pollutant or pollutant parameter in the effluent, the sensitivity ofthe

species to toxicity testing (when evaluating whole effluent toxicity), and

where appropriate, the dilution ofthe effluentin the receiving water.

b)

In the application ofeffluent standards and limitations, water quality

standards and other applicable requirements, the Agency shall, for each

permit, specify average and maximum daily quantitative limitations forthe

level ofpollutants in the authorized discharge in terms ofweight (except

pH, temperature, radiation, and any other pollutants not appropriately

expressed by weight, and except for discharges whose constituents cannot

be appropriately expressed by weight). The Agency may, in its discretion,

in addition to specification ofdaily quantitative limitations by weight,

specify other limitations~such as average or maximum concentration

limits, for the level ofpollutants in the authorized discharge.

.

Effluent

limitations for multiproduct operations shall provide for appropriate waste

variations from such plants. Where a schedule of compliance is included

as a condition in a permit, effluent limitations shall be included for the

interim period as well as for the period following the final compliance

date.

S

2

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NPDES Permit No. 1L0071 889

Notice No. FLR:O1 102903.bah

Public Notice Beginning Date:

October 24, 2003

Public Notice Ending Date:

November 24, 2003

National Pollutant Discharge Elimination System (NPDES)

Permit Program

Draft Modified NPDES Permit to Discharge into Waters of the State

Public Notice/Fact Sheet Issued By:

Illinois Environmental Protection Agency

Bureau of Water, Division of Water Pollution Control

Permit Section

1021 North GrandAvenue East

Post Office Box 19276

Springfield, Illinois 62794-9276

21 7/782-0610

Name and Address of Discharger:

Name and Address of Facility:

Royster-Clark, Inc.

Royster-Clark, Inc.

Post Office Box 410

1921 Old Naples Road

Meredosia, Illinois 62665

Meredosia, Illinois 62665

(Morgan County)

The Illinois Environmental Protection Agency (IEPA) has made a tentative determination to modify an NPDES permit to discharge into the

waters of the state and has prepared a draft permit and associated fact sheet for the above named discharger. The Public Notice period

will begin and end on the dates indicated in the heading of this Public Notice/Fact Sheet. The last day comments will be received will be

on the Public Notice period ending date uuless a commentor demonstrating the need for additional time requests an extension to this

comment period and the request is granted by the IEPA. Interested persons are invited to submit written comments on the-draft permit

to the IEPA at the above address.. Commentors shall provide his or her name and address and the nature of the issues proposed to be

raised and the evidence proposed to be presented with regards to those issues. Commentors may include a request for public hearing.

Persons submitting comments and/or requests for public hearing shall also send a copy of such comments or requests to the permit

applicant. The NPDES permit and notice number(s) must appear on each comment page.

The application, engineer’s review notes including load limit calculations, Public Notice/Fact Sheet, draft permit, comments received, and

other documents are available for inspection and may be copied at the IEPA between 9:30 a.m. and 3:30 p.m. Monday through Friday when

scheduled by the interested person.

If written comments or requests indicates a significant degree of public interest in the draft permit, the permitting authority may, at its

discretion, hold a public hearing. Public notice will be given 45 days before any public hearing. Response to comments will be provided

when the final permit is issued. For further information, please call Fred Rosenblum at 217/782-0610.

The applicant is engaged in the wholesale distribution of fertilizer at an anhydrous ammonia terminal (SIC 5191). Waste water is generated

from the use of well water from an on-site deep well to generate non-contact cooling water and to perform hydrostatic testing of secondary

containment tanks with rubber bladders. Plant operation results in an average discharge of 0.72 MGD of hydrostatic test water at outfall

001 on an infrequent intermittent basis and 0.150 MGD of non-contact cooling water at outfall 002.

The following modification is proposed: Coverage of the existing discharge of non-contact cooling water as outfall 002 along with the

associated requirements. The discharge of non-contact cooling water was previously covered under General NPDES Permit No.

1LG2501 63. The Agency intends to terminate coverage under that General NPDES Permit and cover the existing discharge of non-contact

cooling water under NPDES Permit No. 1L0071889.

Exhibit A

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CERTIFICATE OF SERVICE

I, Albert F. Ettinger, certify that on January 20, 2004, I filed the attached Petitioners’

Comments on Proposed First Notice Rule. An original and 9 copies was filed, on recycled paper,

with the Illinois Pollution Control Board, James R. Thompson Center, 100 West Randolph, Suite

11-500, Chicago, IL 60601, and copies were served via United States Mail to those individuals

on the attached service list.

Albert F. Ettinger

‘~

Environmental Law and Policy Center

35 East Wacker Drive, Suite 1300

Chicago, IL 60601

(312) 795 3707

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ServiceList

Fredric P. Andes

Barnes & Thomburg

‘10 South LaSalle Street

Chicago, IL 60603

Larry

Cox

Downers Grove

Sanitary

District

2710 Curtiss Street

Downers Grove, IL

60515

John Donahue

CityofGeneva

1800 South Street

Geneva, IL 60134

Mathew Dunn

Illinois AttorneyGeneral’s Office

James R. Thompson Center

100 WestRandolph Street

Chicago, IL 60601

Susan Franzetti

Sonnenschein

Nath & Rosenthal

8000

Sears Tower

Chicago, IL 60606

Dorothy

Gunn

Pollution Control Board

100 West’Randolph, Suite 11-500

Chicago, IL 60601

Roy M. Harsch

Gardner,

Carton & Douglas

191 N. Wacker Drive, Suite 3700

Katherine Hodge

Hodge, Dwyer, Zeman

3150 Roland Avenue

P.O. Box 5776

Springfield, IL 62705-5776

CHOI/12294315.I

W.C. Blanton

Blackwell, Sanders, Peper, Martin, LLP

2300 Main, Suite 1000

Kansas

James Daughtery

Thom Creek

Sanitary

District

Heights, IL 60411

Dennis L. Duffield

Director of

Public

Works

and

Utilities

921 E.

Washington

Street

Joliet, IL 60431

Albert

Ettinger

Environmental Law

and

35 W. Wacker Drive, Suite 1300

Chemical Industry Council

250 E. Devon Ave., Suite 239

Des Plaines, IL 60018

James

Harrington

Roos & Hardies

150 N. Michigan, Suite 2500

Metropolitan Water Reclamation District

Chicago,IL 60611

Counsel for Vermillion Coal Company

P.O. Box 12

Danville,

IL 61834-0012

Page 1 of2

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ServiceList

Gerald T. Karr

Assistant

Attorney General

Environmental Bureau

188 WestRandolph, 20th Floor

Chicago, IL 60601

Robert T. Lawley

Illinois Departmentof

Natural

Resources

One Natural

Resources Way

Evanston Environmental Board

Illinois Environmental Regulatory Group

Barnes &Thomburg

10 South LaSalle, Suite 2600

Chicago, IL 60201

Thomas G. Safley

Hodge, Dwyer,

Zeman

3150 Roland Avenue, P.O. Box 5776

Sonjay Sofat

Illinois Environmental Protection Agency

1021 N. Grand Ave. East, Mail Code #21

Springfield, IL 62794-9276

Mary

Sullivan

Illinois-American Water Company

Connie Tonsor

Illinois Environmental Protection Agency

1021 N. Grand Ave. East, Mail Code #21

Springfield, IL 62794-9276

Frederick Keady

Vermillion Coal Company

111 N. Sixth Street

General Counsel

3150 Roland Avenue

Metropolitan Water Reclamation District.

Michael Rosenberg

MetropolitanWater Reclamation District

General & Associate Corporate Counsel

Assistant Attorney General

188 West Randolph, 20th Floor

Marie Tipsord

Attorney, Pollution Control Board

100 West Randolph, Suite 11-500

Charles Wesseihoft

Ross & Hardies

150 N. Michigan Avenue

Chicago, IL 60601