FIRST-NOTICE PROPOSAL
 

 

	The following discussion will summarize the first-notice proposal on a section-by-section basis.

  

Section 309.107
	Section 309.107 was amended to require that the IEPA notify Illinois Department of Natural Resources (IDNR) when an NPDES permit application is complete, subject to a memorandum of agreement with IDNR. The IEPA supports this addition and is developing a memorandum of agreement with IDNR.

  

Section 309.108
	Proposed language for Section 309.108(c) adds specific items to be included in the IEPA’s tentative determination on an NPDES permit. As proposed, new subsection (e) requires that all documents related to the IEPA’s tentative decision on a permit application become a part of the IEPA’s record. The IEPA could either identify the document for the record or include the document in the record.

  

Sections 309.112 and 309.119
	At first notice, the Board added a cross-reference to Section 309.120 to clarify when a public comment period will be reopened.

  

Section 309.113
	Existing Section 309.113 specifies information to be included in public information fact sheets for dischargers exceeding 500,000 gallons in one day. The language that was proposed for Section 309.113 would require the inclusion of additional information in the fact sheets prepared by the IEPA during the NPDES permitting process.

  

Section 309.114
	The first-notice proposal corrects a typographical error in Section 309.114(c).

   

Section 309.120
	At first notice, the Board proposed a new section that requires the IEPA to reopen the public comment period if the final permit is not a logical outgrowth of the draft permit. In determining if the final permit is a natural outgrowth, the IEPA must consider four things: (1) whether the interested parties could anticipate the final permit (Section 309.120(a)(1)); (2) whether a new round of notice and comment would present an interested party the first opportunity to comment on the issue (Section 309.120(a)(2)); (3) whether provisions in the final permit deviate from the concepts in the draft permit or suggested by the commenters (Section 309.120(a)(3)); and, (4) whether the changes made represent an attempt by the IEPA to respond to commenters (Section 309.120(a)(4)).
	Section 309.120(b) limits the scope of the extended public comment period to identified issues. Section 309.120(c) sets forth the notification process.

  

Section 309.143
	Section 309.143 as proposed requires the control of pollutants or pollutant parameters that may potentially cause a violation of the water quality standards. The language is identical to federal language and IEPA is currently prohibited from issuing an NPDES permit that is not in compliance with federal law (see 35 Ill. Adm. Code 309.141).

  

Section 309.146
	The first-notice proposal adds language to require that reports made by permit holders are adequate to determine compliance and to require permit to include specifications concerning monitoring.

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ISSUES RAISED DURING FIRST NOTICE
	In general the commenters supported the Board’s first-notice proposal and offered only a few additional comments. The comments offered center around the language of Section 309.120, 309.143 and 309.113(a)(5). In Section 309.120, ICA, IERG and IAWA sought additional clarification concerning the reopening of the public comment period and IAWA suggested deleting Section 309.120(a)(4). Additionally, those three groups also asked that further federal language be added to 309.143 in order to insure consistency with the Code of Federal Regulations. Finally, IAWA, IERG, and IEPA asked that the Board reconsider the first-notice decision to include proposed Section 309.113(a)(5).
	In response to the concerns of IAWA, IERG, and IEPA regarding Section 309.113(a)(5), the Board proceeded with the language as proposed at first notice. The Board noted that the specific language of the proposal states that the IEPA’s fact sheet shall include a summary of changes. The Board opined that the common definition of the word, summary, which means to present a topic in a condensed, concise form. A detailed listing of specific changes would not be a summary. Further, the Board does not anticipate that the IEPA will be listing multiple changes if the reissued permit is substantially different. In that case, the Board intends that the IEPA’s summary would simply note that there are substantial differences.

 In Section 309.120, the Board found that additional language is not necessary regarding whether or not the IEPA will reopen the public comment period after the applicant submits additional information. The language of the rule sets forth the criteria the IEPA will use in determining whether or not to reopen the comment period. Mr. Frevert’s testimony indicates that in some instances submission of additional information from the applicant may require additional public comment. See Tr.3 at 21-23. Thus, if the submission of additional information from an applicant results in a permit which is not the logical outgrowth of the draft permit, IEPA will reopen the comment period pursuant to Section 309.120(a)(1)-(3).
 

  

	The Board further found that language setting forth the IEPA’s authority to reopen a comment period is not necessary. The Board is authorized under the Act to adopt regulations implementing the NPDES permit program, including procedures for implementation of the program. 415 ILCS 5/13 (2002). The proposal specifically allows the IEPA to reopen the public comment period and includes standards to determine when the comment period shall be reopened. The Board finds the language sufficient and declines to amend the proposal.
	The Board did determine that Section 309.120(a)(4) could lead to confusion. Therefore, the Board deleted the first notice language of Section 309.120(a)(4) in the second notice order.
	The Board added additional federal language to Section 309.143, but declined to add additional clarification regarding the relationship between this Section and Section 309.130 or 35 Ill. Adm. Code 406.203.

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 The Board directs the Clerk to cause the filing of the following rule with the Secretary of State for publication as an adopted rule in the Illinois Register:
 

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Section

309.101	Preamble
309.102	NPDES Permit Required
309.103	Application - General
309.104	Renewal
309.105	Authority to Deny NPDES Permits
309.106	Access to Facilities and Further Information
309.107	Distribution of Applications
309.108	Tentative Determination and Draft Permit
309.109	Public Notice
309.110	Contents of Public Notice of Application
309.111	Combined Notices
309.112	Agency Action After Comment Period
309.113	Fact Sheets
309.114	Notice to Other Governmental Agencies
309.115	Public Hearings on NPDES Permit Applications
309.116	Notice of Agency Hearing
309.117	Agency Hearing
309.118	Agency Hearing File
309.119	Agency Action After Hearing
309.120	Reopening the Record to Receive Additional Written Comment
309.141	Terms and Conditions of NPDES Permits
309.142	Water Quality Standards and Waste Load Allocation
309.143	Effluent Limitations
309.144	Federal New Source Standards of Performance
309.145	Duration of Permits
309.146	Authority to Establish Recording, Reporting, Monitoring and Sampling Requirements
309.147	Authority to Apply Entry and Inspection Requirements
309.148	Schedules of Compliance
309.149	Authority to Require Notice of Introduction of Pollutants into Publicly Owned Treatment Works
309.150	Authority to Ensure Compliance by Industrial Users with Sections 204(b), 307 and 308 of the Clean Water Act
309.151	Maintenance and Equipment
309.152	Toxic Pollutants
309.153	Deep Well Disposal of Pollutants (Repealed)
309.154	Authorization to Construct
309.155	Sewage Sludge Disposal
309.156	Total Dissolved Solids Reporting and Monitoring
309.157	Permit Limits for Total Metals
309.181	Appeal of Final Agency Action on a Permit Application
309.182	Authority to Modify, Suspend or Revoke Permits
309.183	Revision of Schedule of Compliance
309.184	Permit Modification Pursuant to Variance
309.185	Public Access to Information
309.191	Effective Date

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SUBPART B: OTHER PERMITS

Section

309.201	Preamble
309.202	Construction Permits
309.203	Operating Permits; New or Modified Sources
309.204	Operating Permits; Existing Sources
309.205	Joint Construction and Operating Permits
309.206	Experimental Permits
309.207	Former Permits (Repealed)
309.208	Permits for Sites Receiving Sludge for Land Application
309.221	Applications - Contents
309.222	Applications - Signatures and Authorizations
309.223	Applications - Registered or Certified Mail
309.224	Applications - Time to Apply
309.225	Applications - Filing and Final Action By Agency
309.241	Standards for Issuance
309.242	Duration of Permits Issued Under Subpart B
309.243	Conditions
309.244	Appeals from Conditions in Permits
309.261	Permit No Defense
309.262	Design, Operation and Maintenance Criteria
309.263	Modification of Permits
309.264	Permit Revocation
309.265	Approval of Federal Permits
309.266	Procedures
309.281	Effective Date
309.282	Severability

309.Appendix A

References to Previous Rules

AUTHORITY: Implementing Sections 13 and 13.3 and authorized by Section 27 of the Environmental Protection Act [415 ILCS 5/13, 13.3 and 27].

SOURCE: Adopted in R71-14, at 4 PCB 3, March 7, 1972; amended in R73-11, 12, at 14 PCB 661, December 5, 1974, at 16 PCB 511, April 24, 1975, and at 28 PCB 509, December 20, 1977; amended in R73-11, 12, at 29 PCB 477, at 2 Ill. Reg. 16, p. 20, effective April 20, 1978; amended in R79-13, at 39 PCB 263, at 4 Ill. Reg. 34, p. 159, effective August 7, 1980; amended in R77-12B, at 41 PCB 369, at 5 Ill. Reg. 6384, effective May 28, 1981; amended in R76-21, at 44 PCB 203, at 6 Ill. Reg. 563, effective December 24, 1981; codified at 6 Ill. Reg. 7818; amended in R82-5, 10, at 54 PCB 411, at 8 Ill. Reg. 1612, effective January 18, 1984; amended in R86-44 at 12 Ill. Reg. 2495 effective January 13, 1988; amended in R88-1 at 13 Ill. Reg. 5993, effective April 18, 1989; amended in R88-21(A) at 14 Ill. Reg. 2892, effective February 13, 1990; amended in R91-5 at 16 Ill. Reg. 7339, effective April 27, 1992; amended in R95-22 at 20 Ill. Reg. 5526, effective April 1, 1996; amended in R99-8 at 23 Ill. Reg. 11287, effective August 26, 1999; amended in R02-11 at 27 Ill. Reg. 202, effective December 20, 2002; amended in R03-19 at _______ Ill. Reg. ______________________________, effective ____________________.

 

Section 309.107  Distribution of Applications
 
When the Agency determines that an application for an NPDES Permit is complete, it shall:
 

   

a)	Unless otherwise agreed, send a copy of the application to the District Engineer of the appropriate district of the U.S. Corps of Engineers with a letter requesting that the District Engineer provide, within 30 days or as otherwise stated in the Agency's letter, his evaluation of the impact of the discharge on anchorage and navigation. If the District Engineer responds that anchorage and navigation of any of the navigation waters would be substantially impaired by the granting of a permit, the permit will be denied and the Agency shall notify the applicant. If the District Engineer informs the Agency that the imposition of specified conditions upon the NPDES Permit is necessary to avoid any substantial impairment of any of the navigable waters, the Agency shall include in the permit those conditions specified by the District Engineer.
b)	Send two copies of the application to the Regional Administrator of the U.S. Environmental Protection Agency with a letter stating that the application is complete.
c)	Notify the Illinois Department of Natural Resources (DNR), subject to any memorandum of agreement between the Agency and the DNR.

(Source: Amended at ______ Ill. Reg. ___________, effective ____________________)
 
Section 309.108  Tentative Determination and Draft Permit
 
Following the receipt of a complete application for an NPDES Permit, the Agency shall prepare a tentative determination. Such determination shall include at least the following:
 
a)  A Statement regarding whether an NPDES Permit is to be issued or denied; and
 
b)  If the determination is to issue the permit, a draft permit containing:
 

   

1)	Proposed effluent limitations, consistent with federal and state requirements;
2)	A proposed schedule of compliance, if the applicant is not in compliance with applicable requirements, including interim dates and requirements consistent with the CWA and applicable regulations, for meeting the proposed effluent limitations;
3)	A brief description of any other proposed special conditions which will have a significant impact upon the discharge.

 

c)	A brief description statement of the basis for each of the permit conditions listed in Section 309.108(b), including a brief description of any mixing zones, how the conditions of the draft permit were derived, and the statutory or regulatory provisions and appropriate supporting references.

d)  Upon tentative determination to issue or deny an NPDES Permit:
 

  

1)	If the determination is to issue the permit the Agency shall notify the applicant in writing of the content of the tentative determination and draft permit and of its intent to circulate public notice of issuance in accordance with Sections 309.108 through 309.112;
2)	If the determination is to deny the permit, the Agency shall notify the applicant in writing of the tentative determination and of its intent to circulate public notice of denial, in accordance with Sections 309.108 through 309.112. In the case of denial, notice to the applicant shall include a statement of the reasons for denial, as required by Section 39(a) of the Act.

 

e)	For the purposes of Title X of the Act [415 ILCS 5/Title X], the documents supporting the Agency’s tentative decision to issue or deny an NPDES permit under this Section shall be either identified in or made part of the Agency record.

(Source: Amended at ______ Ill. Reg. ___________, effective ____________________)
 
Section 309.112  Agency Action After Comment Period
 
Subject to Section 309.120, ifIf, after the comment period provided, no public hearing is held with respect to the permit, the Agency shall, after evaluation of any comments which may have been received, either issue or deny the permit.
 
(Source: Amended at ______ Ill. Reg. ___________, effective ____________________)
 
Section 309.113  Fact Sheets
 

 

a)	For every discharge which has a total volume of more than 500,000 gallons (1.9 megaliters) on any day of the year, the Agency shall prepare and, following public notice, shall send upon request to any person a fact sheet with respect to the application described in the public notice. The contents of such fact sheets shall include at least the following information:

  

1)	A sketch or detailed description of the location of the discharge described in the application;
2)	A quantitative description of the proposed discharge described in the application which includes at least the following:

   

A)	The rate or frequency of the proposed discharge; if the discharge is continuous, the average daily flow;
B)	For thermal discharges subject to limitation under the Act, the average monthly temperatures for the discharge;
C)	The average daily mass discharged and average concentration in milligrams per liter, or other applicable units of measurement, of any contaminants which are present in significant quantities or which are subject to limitations or prohibitions under applicable provisions of the CWA or the Act or regulations adopted thereunder;

3)  The tentative determinations required under Section 309.108;
 

   

4)	A brief citation, including an identification of the uses for which the receiving waters have been classified, of the water quality standards and effluent standards and limitations applicable to the proposed discharge; and
5)	In the case of modified and reissued permits, a summary of changes between the public noticed permit and the previous permit;
6)	Summary of the antidegradation analysis, including characterization of the receiving waters and the existing uses of the receiving waters;

  

7)	A more detailed description of the procedures for the formulation of final determinations than that given in the public notice, including:

   

A)	The beginning and ending dates of the comment period and address where comments will be received; The 30-day comment period;
B)	Procedures for requesting a public hearing and the nature thereof; and
C)	Any other procedures by which the public may participate in the formulation of the final determination; and .

8)  Information on how to obtain the Agency record.
 

 

b)	The Agency shall add the name of any person or group, upon request, to a mailing list to receive copies of fact sheets.

(Source: Amended at ______ Ill. Reg. ___________, effective ____________________)
 
Section 309.114  Notice to Other Governmental Agencies
 
At the time of issuance of public notice pursuant to Sections 309.109 through 309.112, the Agency shall:
 

    

a)	Send a fact sheet, if one has been prepared, to any other states States whose waters may be affected by the issuance of the proposed permit and, upon request, provide such states States with a copy of the application and a copy of the draft permit. Each affected State shall be afforded an opportunity to submit written recommendations within a stated number of days to the Agency and to the Regional Administrator of the U.S. Environmental Protection Agency, which the Agency may incorporate into the permit if issued. Should the Agency decline to incorporate any written recommendations thus received, it shall provide to the affected state State or states States (and to the Regional Administrator) a written explanation of its reasons for declining to accept any of the written recommendations.
b)	Following the procedure set forth in subsection (a) above, notify and receive recommendations from any interstate agency having water quality control authority over waters which may be affected by the permit.
c)	Unless otherwise agreed, in accordance with 40 CFR 124.34(c), send a copy of the fact sheet, if one has been prepared, to the appropriate District Engineer of the Army Corps of Engineers for discharges (other than minor discharges) into navigable navigible waters.
d)	Upon request, send a copy of the public notice and a copy of the fact sheet for NPDES Permit applications to any other Federal, states States, or local agency, or any affected country, and provide such agencies an opportunity to respond, comment, or request a public hearing pursuant to Sections 309.115-309.119. Such agencies shall include at least the following:

  

1)	The agency responsible for the preparation of an approved plan pursuant to Section 208(b) of the CWA; and
2)	The State or interstate agency responsible for the preparation of a plan pursuant to an approved continuous planning process under Section 303(e) of the CWA.

 

e)	Send notice to, and coordinate with, appropriate public health agencies for the purpose of assisting the applicant in integrating the relevant provisions of the CWA with any applicable requirements of such public health agencies.

(Source: Amended at ______ Ill. Reg. ___________, effective ____________________)
 
Section 309.119  Agency Action After Hearing
 
Subject to Section 309.120, following Following the public hearing, the Agency may make such modifications in the terms and conditions of proposed permits as may be appropriate and shall transmit to the Regional Administrator for his approval a copy of the permit proposed to be issued unless the Regional Administrator has waived his right to receive and review permits of its class. The Agency shall provide a notice of such transmission to the applicant, to any person who participates in the public hearing, to any person who requested a public hearing, and to appropriate persons on the mailing list established under Sections 309.109 through 309.112. Such notice shall briefly indicate any significant changes which were made from terms and conditions set forth in the draft permit. All permits become effective when issued unless a different date is specified in the permit.
 
(Source: Amended at ______ Ill. Reg. ___________, effective ____________________)
 
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 of the proposed draft permit. In determining if the final permit is a logical outgrowth of the draft permit, the Agency shall consider the following:

   

1)	Whether the interested parties could not have reasonably anticipated the final permit from the draft permit;
2)	Whether a new round of notice and comment would provide interested parties the first opportunity to offer comments on the issue; or
3)	Whether the provisions in the final permit deviate sharply from the concepts included in the draft permit or suggested by the commenters.

  

b)	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 period shall be limited to the substantial new issues that caused its reopening.
c)	For the purposes of the notification required by subsection(b), the Agency shall follow the public notice requirements of Section 309.109.

(Source: Added at ______ Ill. Reg. ___________, effective ____________________)
 
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, 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. 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 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.
b)	In the application of effluent standards and limitations, water quality standards and other applicable requirements, the Agency shall, for each permit, specify average and maximum daily quantitative limitations for the level of pollutants in the authorized discharge in terms of weight (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 of daily quantitative limitations by weight, specify other limitations, such as average or maximum concentration limits, for the level of pollutants 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.

(Source: Amended at ______ Ill. Reg. ___________, effective ____________________)
 

 

Section 309.146	Authority to Establish Recording, Reporting, Monitoring and Sampling Requirements

 

a)	The Agency shall require every holder of an NPDES Permit, as a condition of the NPDES Permit issued to the holder, to:

1)  Establish, maintain and retain records;
 

   

2)	Make reports adequate to determine the compliance or lack of compliance with all effluent limits and special conditions in the permit;
3)	Install, calibrate, use and maintain monitoring equipment or methods (including where appropriate biological monitoring methods);
4)	Take samples of effluents (in accordance with such methods, at such locations, at such intervals, and in such a manner as may be prescribed); and

5)  Provide such other information as may reasonably be required.
 

 

b)	The Agency may require every holder of an NPDES Permit for a publicly owned and publicly regulated treatment works, as a condition of the NPDES Permit, to require industrial users of such a treatment works to:

1)  Establish, maintain and retain records;
 
2)  Make reports;
 

  

3)	Install, calibrate, use and maintain monitoring equipment or methods (including where appropriate biological monitoring methods);
4)	Take samples of effluents (in accordance with such methods, at such locations, at such intervals, and in such a manner as may be prescribed); and

5)  Provide such other information as may reasonably be required.
 

 

c)	All such requirements shall be included as conditions of the NPDES Permit issued to the discharger, and shall be at least as stringent as those required by applicable federal regulations when these become effective.

 

d)	All permits shall specify requirements concerning the proper use, maintenance, and installation, when appropriate, of monitoring equipment or methods (including biological monitoring methods when appropriate); required monitoring including type, interval, and frequency sufficient to yield data which are representative of the monitored activity including, when appropriate, continuous monitoring.

(Source: Amended at ______ 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 May 6, 2004, by a vote of 5-0.
 

 

	Dorothy M. Gunn, Clerk
	Illinois Pollution Control Board

 
 

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