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AVIS 86 2084
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR,~TATEPoIIut~onOF
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Board
IN THE MATTER OF:
PROPOSED AMENDMENTS TO
DISSOLVED OXYGEN STANDARD
35
ILL. ADM. CODE 302.206
TO:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph Street, Suite 11-500
Chicago, Illinois 60601
)
)
)
)
)
NOTICE
R04-25
(Rulemaking —Public Water)
Richard McGill, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph, Suite 11-500
Chicago, Illinois 60601
SEE ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that I have filed with the Office ofthe Pollution
Control Board the RESPONSE TO THE ENVIRONMENTAL LAW & POLICY CENTER OF
THE MIDWEST, PRAIRIE RIVERS NETWORK AND THE SIERRA CLUB’S MOTION TO
SUSPEND CONSIDERATION OF PROPOSED AMENDMENTS TO THE DISSOLVED
OXYGEN STANDARD PENDING DEVELOPMENT OF DRAFT IMPLEMENTATION
RULES on behalf ofthe Illinois Environmental Protection Agency, a copy ofwhich is herewith
served upon you.
Date: August 4, 2004
1021 North Grand Avenue East
P.O. Box 19276
Spring field, IL 62794-9276
217/782-5544
e
~eN.Diers
ssis ant Counsel
Divi on ofLegal Counsel
THIS FILING IS SUBMITTED ON
RECYCLED PAPER
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CLERK’S OFF~O~
AUG
862004
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
Poflut~on
STATE OF
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IN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO
)
R04-25
DISSOLVED OXYGEN STANDARD
)
Rulemaking-Public Water
35 ILL. ADM. CODE 302.206
)
RESPONSE TO THE ENVIRONMENTAL LAW & POLICY CENTER OF THE
MIDWESTg
PRAIRIE RIVERS
NETWORK
AND
THE SIERRA CLUB’S
MOTION TO SUSPEND CONSIDERATION OF PROPOSED AMENDMENTS
TO THE DISSOVLED OXYGEN STANDARD PENDING DEVELOPMENT OF
DRAFr
IMPLEMENTATION RULES
The Illinois Environmental Protection Agency (“Illinois EPA”) hereby submits its
response to The Environmental Law Policy Centerofthe Midwest, Prairie Rivers
Network and the Sierra Club’s (“ELPC”) Motion to Suspend Consideration ofProposed
Amendments to the Dissolved Oxygen Standard Pending Development ofDraft
Implementation Rules. In support ofits Response, Illinois EPA states as follows:
1.
On July 21, 2004, the Environmental Law and Policy Center ofthe
Midwest, Prairie Rivers Network and the Sierra Club filed their Motion to Suspend
Consideration ofProposed Amendments to the Dissolved Oxygen Standard Pending
Development ofDraft Implementation Rules.
2.
On July 22, 2004, the Illinois EPA received the ELPC’s Motion to
Suspend Consideration ofProposed Amendments to the Dissolved Oxygen Standard
Pending Development ofDraft Implementation Rules via facsimile.
3.
The ELPC argues that this rulemaking should not go forward without the
various parties and the Board seeing implementation rules developed by the proponent,
1
Illinois Association ofWastewater Agencies, (“IAWA”) and presumably Illinois EPA.
(Motion, page 2).
4.
ELPC further argues that if the hearing on August 12, 2004 is held, it
should be limited only to Dr. Garvey’s testimony. (Motion, page 4).
5.
Illinois EPA believes that the hearing on August 12, 2004 should go
forward because it will aide the Board and all parties involved in further developing the
issues surrounding IAWA’s proposal to amend the dissolved oxygen water quality
standard.
6.
Illinois EPA also believes that the hearing on August 12, 2004 will further
aide the Agency in their continuing evaluation ofIAWA’s proposal to amend the
dissolved oxygen standard. The purpose ofconducting hearings during the rulemaking
process is to get all the necessary information available to aide the Board and the various
parties in better understanding the proposal being presented to the Board.
7.
Furthermore, Illinois EPA does not believe limiting the August 12, 2004
hearing to only Dr. Garvey’s testimony would be beneficial to this rulemaking
proceeding. The Board should be able to allow any party ready to present testimony to
do so at that date.
8.
However, Illinois EPA will not be prepared to offer testimony at the
August 12, 2004 hearing. illinois EPA agrees with ELPC that the Board will not have
enough information to proceed to First Notice at this time or immediately following the
August 12, 2004 hearing. It is clear that the record in this matter needs further
development and the Illinois EPA intends to provide the Board with testimony and
2
comments regarding an appropriate dissolved oxygen standard when the Agency has had
an opportunity to draw a conclusion from the available information.
9.
As stated above, the Illinois EPA believes that future hearings, such as the
one scheduled on August 12, 2004 will help the various parties in developing the issues
concerning IAWA’s proposal, so that an appropriate standard is developed with respect
to dissolved oxygen.
10.
Illinois EPA proposes at a later date the Board allow the Agency and
ELPC the opportunity to present testimony in this rulemaking once more information is
obtained concerning IAWA’s proposal.
11.
The Illinois EPA would like to clear up some confusion that may have
been created with respect to the need for “draft implementation rules.” ELPC spends
over half ofits motion and memorandum oflaw perpetuating the confusion initiated.by
IAWA in its proposal and testimony by stating that deficiencies ofits proposal will be
resolved through an Agency regulatory process. At this time, it is not clear from either
party what exactly is meant by “draft implementation rules”.
12.
Many of the concepts described by ELPC and IAWA as “implementation
rules” speak to the temporal detail and measurements techniques necessary to determine
compliance or non-compliance with the standards and therefore are an inherent part of
the standard itself, not separate implementation procedures. To the extent they define
“where, when and how” the numeric values within the standard apply, these certainly
need to be defined. However, there is also an inference that the parties’ use of
“implementation procedures” refers to procedures for dictating discharge and monitoring
requirements for permitted sources. Clearly, additional discussion and development
3
evaluation is necessary for Illinois EPA to accurately understand and address the various
parties’ positions on these matters.
13.
Illinois EPA will not be able to assess the need for agency regulations
until the administrative record is further developed regarding the appropriate dissolved
oxygen water quality standard to protect aquatic life. However, if it is determined that
such rules are necessary, Illinois EPA will provide testimony regarding the content of
those rules.
14.
Also, ELPC goes into great detail comparing the present rulemaking to
other rulemaking proceedings to reach the conclusion that the Board has a “general
practice” of requiring submission of Agency implementation rules. The Illinois EPA
does not agree that a consistent practice exists regarding this issue. (Memorandum of
Law P. 3-6).
15.
The prime example of the need for such a practice provided by ELPC is
the ammonia rulemakings. R94-01(B) and R02-19. The ammonia water quality standard
is unique in that the standard itself varies with the temperature and pH of the receiving
stream. As such, the process of permitting ammonia discharges was unusual and
uncomparably complicated and required a rulemaking to establish procedures for setting
permit limits.
16.
ELPC also incorrectly states with regards to these proceedings “the
standard revision cannot go into effect without development of implementation rules”.
(Motion, P. 3)
17.
While it is true that U.S. EPA looks at a variety of Agency policies and
procedures before it can approve certain standards, rarely does that involve or require
4
Agency rulemakings. In fact, in a vast majority of water quality standard revisions
adopted by the Board, Illinois EPA’s submittal does not involve agency regulations and it
is unlikely this will be necessary for dissolved oxygen.
18. Finally, Illinois EPA would support additional hearings in this matter if
the Board thinks future hearings are necessary. Illinois EPA is committed to working
with U.S. EPA and the various parties to ensure the proper water quality standard for
dissolved oxygen is developed.
WHEREFORE, the Illinois EPA respectfully requests that the Environmental Law.
and Policy Center, Prairie Rivers Network and the Sierra Club’s Motion to Suspend
Consideration of Proposed Amendments to the Dissolved Oxygen Standard Pending
Development ofDraft Implantation Rules be denied.
DATED:
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Post Office Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
Respectfully submitted,
ILLI~ISMNVIRONME
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Ste?a4e N. Diers
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As ist t Counsel
D i& n ofLegal Counsel
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Illinois Pollution Control Board
Service List
Service list for case R2004-025
Name rartY Role bddress 1
1Address 2
rtate riP
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rax
~erson
1Title
y
Page 1
Illinois Pollution Control Board
Service List
Service list for case R2004-025
Page 2
Illinois Pollution Control Board
Service List
Service list for case R2004-025
Page 3
Illinois Pollution Control Board
Service List
Service list for case R2004-025
Page 4
STATE OF ILLINOIS
)
)SS.
COUNTY OF SANGAMON
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PROOF OF SERVICE
I, the undersigned, on oath state that I have served the attached Response to the
Environmental Law & Policy Center ofthe Midwest, Prairie Rivers Network and the Sierra
Club’s Motion to Suspend Consideration ofProposed Amendments to the Dissolved Oxygen
Standard Pending Development of Draft Implementation Rules upon the person to whom it is
directed, by placing it in an envelope addressed to:
TO:
Dorothy Gunn, Clerk
RichardMcMill, Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
James R. Thompson Center
James R. Thompson Center
100 W. Randolph Street, Suite 11-500
100 W. Randolph, Suite 11-500
Chicago, flhinois 60601
Chicago, Illinois 60601
SEE
ATTACHED SERVICE LIST
and mailing it by First Class Mail from Springfield, Illinois on August 4, 2004, with sufficient
postage affixed.
SUBSCRIBED AND SWORN TO BEFORE ME
this
4th
day ofAugust, 2004
J~J~
Notary Public
~ ~kx~’
BRENDA BOEHNER
3
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NOTARY PUBLIC, STATE OF ILLINOIS ~
:~MYCOMMISSION EXPIRES 11-14.2OO5~
~
THIS FILING IS SUBMITTED ON RECYCLED PAPER
