~i~il ~
NOTICE OF FILING
Introduction
and prohibit allowing new pollution that has not been shown to be necessary.
A. The Clean Water Act
B. Illinois Law follows the Clean Water Act.,
Conclusion

~i~il

~j~~’s

OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

15 2~3

‘~

~LLU~1O~S

STA~

trot Board

INTERIM PHOSPHORUS EFFLUENT

)

poUut~Ofl

Con

STANDARD, PROPOSED

ILL. ADM.

)

R2004-026

CODE 304. 123(G-K)

)

Rulemaking

—

Water

)

NOTICE OF FILING

PLEASE TAKE NOTICE that the Environmental Law & Policy Center, Prairie Rivers

Network and Sierra Club have filed the attached MEMORANDUM AND TESTIMONY OF

ENVIRONMENTAL LAW & POLICY CENTER, PRAIRIE RIVERS NETWORK AND

SIERRA CLUB IN SUPPORT OF THE ILLINOIS EPA RULE MAKING PROPOSAL.

Albert F. Ettinger (Reg. No. 3125045)

Counsel for Environmental Law & Policy

Center, Prairie Rivers Network, and

Sierra

Club

DATED:

October

15,

2004

Environmental Law & Policy Center

35 East Wacker Drive, Suite

1300

Chicago, IL

60601

312-795-3707

CLERK’S OFF~CE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

152003

STATE OF ~LUNO~S

tion Con’JO~Bodrd

IN THE MATTER OF:

)

rOuU

)

INTERIM PHOSPHORUS EFFLUENT

)

R2004-026

STANDARD, PROPOSED 35 Iii. Adm.

)

Rulemaking

—

Water

Code 304.123(g-k)

)

MEMORANDUM

AND

TESTIMONY OF ENVIRONMENTAL LAW & POLICY

CENTER,

PRAIRIE RIVERS

NETWORK

AND

SIERRA CLUB IN SUPPORT OF THE

ILLINOIS EPA RULE

MAKING

PROPOSAL

INTRODUCTION:

Environmental Law

& Policy Center ofthe Midwest (ELPC), Prairie Rivers Network and

the Sierra Club strongly support the Illinois EPA proposal to establish an interim rule that will

generally require monthly average permit limits of 1

mg!L total phosphorus fornew or expanded

discharges by major dischargers. The proposal

is extremelymodest and does not provide a long-

term solution to the problem ofnutrient pollution in Illinois waters and waters downstream of

Illinois. Still, adoption ofthe proposal will

serve to reduce the extent to

which the problem gets

worse during the next four years during which numeric nutrient water quality standards are

developed and adopted.

Our submission in support ofthe proposal is in fourparts.

Part I, the Pre-filed Testimony ofAlbert Ettinger, consists essentially ofa legal

memorandum explaining the legal

and regulatory frameworks ofthe proposal. It will be seen

that, while the proposed rule is extremelyhelpful in giving guidance to permit applicants and

permit writers, adoption ofthe proposed rule would not have a major effect on Illinois law.

Dischargers within the Great Lakes Basin have been required to meet the

mgIL limit fortwenty

years.

Illinois dischargers less than 25 miles upstream ofa lake or reservoir already must meet a

1 mg/L limit under 35 Iii. Adm. Code 304.123. More generally, given that it unquestionably is

practicable for maj or dischargers to treat wastewater to a level of 1

rng/L or less total

phosphorus, the Illinois antidegradation rule, 35 Iii.

Adm. Code

302.105(c), already requires the

permits that would be affected by the proposed rule to

contain a limit as stringent as

mg/L. Still

further, a phosphorus limit should also be required now for manydischargers under 35

Ill. Adm.

Code 302.203

and 35 Ill. Adm. Code 302.206 and 35 Iii. Adm. Code 309.141.

Part II ofthis petition is a description ofthe need for greater controls on phosphorus to

protect Illinois waters. Professor Michael Lemke ofthe University ofIllinois

at Springfield

explains the known effects ofphosphorus pollution and the dangers of allowing unrestricted new

loadings ofphosphorus to be discharged to Illinois rivers, lakes and streams.

In Part III ofthis submission, Beth Wentzel, Watershed Scientist ofPrairie Rivers

Network, discusses existing efforts to

control phosphorus pollution in Illinois and other states. It

will be seen that the proposed monthly average limited of 1

mg/L can be reached affordablyby

Illinois dischargers and that in fact hosts ofdischargers around the country are complying with

much tighter limits. Moreover, many Illinois dischargers are already complying with phosphorus

limits. In addition to discharges controlled by 35

Iii.

Adm. Code 123 (a)

and (b), many Illinois

dischargers intending to have new or increased discharges have already agreed to average, limits

of 1

mg/L total phosphorus. This includes a number ofdischargers that were identified at the

hearing August 30 (Tr.

6) as being potentially affected by this proposal including McHenry,

Piano, Manhattan, Minooka, Bloomingdale, and Lake in the Hills.

In Part IV ofthis submission

to the Board, we propose and explain proposed language

changes to

the proposal. It will be recalled that legal and technical problems in the language used

in the proposal were discussed in the hearing held August 30, 2004. We believe that our

proposed changes

to the agency proposal address all of the substantive and drafting issues that

were brought out in

the hearing and make the proposal stronger and eliminate arguable

inconsistencies between the currently proposed language and

the requirements of the Clean

Water Act and current Board rules.

Finally, it should be pointed out that there is a need for an expedited decision in this

proceeding. Decisions regarding treatment plant design and permits have to be made on an

ongoing basis

and one of the major benefits of adoption of the proposal will be to force

some

dischargers to avoid making investments in equipment that will have to be retrofitted in a few

years.

Albert F. Ettinger (Reg.

No. 3125045)

Counsel for Environmental Law

& Policy

Center, Prairie Ri~iers

Network, and Sierra

Club

DATED:

October

15, 2004

Environmental Law &

Policy Center

35 East Wacker Drive,

Suite

1300

Chicago, IL

60601

312-795-3707

In Re: InterimPhosphorus Effluent LimitR2004-26

Pre-filed Testimony ofAlbert

Ettinger

I am Senior StaffAttorney at the Environmental Law & Policy Center ofthe Midwest

(ELPC) and Water Issues Coordinator and General Counsel for the Illinois Chapter ofthe Sierra

Club. In this proceeding

I represent ELPC, the Sierra Club and Prairie Rivers Network.

have

worked in Illinois on matters relating to water pollution and implementation ofthe federal Clean

Water Act as counsel to the Sierra Club since

1982. I am also the principal author ofthe

February 2, 2004 letter (Hearing Exhibit 3) that may have figured in development ofthe interim

phosphorus proposal now before the Board although the proposal does not closely follow the

recommendations made in the letter.

This testimony sets forth the legal principles that support the petition filed by the Illinois

Environmental Protection Agency (IEPA). The testimony also provides the

legal rationale for the

suggestions ofELPC, Prairie Rivers Network and Sierra Club for improving some ofthe

language ofthe IEPA proposal.

Introduction

The Agency’s proposal for an interim monthly average phosphorus effluent limit of 1

mg/L formany new or increased discharges is fullymerited, if not legally required, by existing

law and regulations. The proposal fits well with other Illinois regulations that have been enacted

by the Board to deal with similar situations. The proposed rule addresses several basic goals and

requirements ofthe Clean Water Act and the Illinois Environmental Protection Act.

In particular,

the proposed effluent limitation generally will bring NPDES

permits grantedby IEPA closer to

compliance with federal and state requirements that:

permit limits control “all pollutants

...

which will cause, have a potential to

cause, or contribute to an excursion above any State water quality standard,

In Re: InterimPhosphorus Effluent LimitR2004-26

including

State

narrative

criteria for water quality” 40 CFR

§ §

1 22.44(d)(1)(i), see

also, 35 Ill.

Adm. Code 304.105,

only allow new or increased loadings to Illinois waters if allowing such loadings

is “necessary to accommodate important economic or social development.” 35

Ill.

Adm. Code 302.105(c)(1).

Permits for new or increased discharges not containing a

mg/L monthly average limit

forphosphorus generally violate both ofthese bedrock principles ofNPDES

permit writing.

To see how this all fits together, it is helpful to review some ofthe history of the CWA and its

implementation in Illinois.

The Clean Water Act and Illinois

law require that

NPDES permits

control

pollutants that may cause or

contribute to violations ofwater quality standards

and prohibit allowing new pollution that has not been shown to be necessary.

The Clean Water Act

Congress enacted the CWA, 33 U.S.C.

§~

1251-1386, in 1972 to “restore and maintain

the chemical, physical, and biological integrity ofthe Nation’s waters.”

U.S.C.

125 1(a).

The CWA prohibits any “point

source” from discharging pollutants into waters ofthe United

States unless the source obtains an NPDES permit.

33 U.S.C.

§§

1311(a), 1342., NPDES

is the

initials forthe “National Pollutant Discharge Elimination System.” See 33 U.S.C.

1342.

The

Act sets as a national goal that all

discharges be eliminatedby

1985.

U.S.C.

§1251(a)(1).

was thought that,

while the technology was developed and put in place to eliminate discharges,

municipalities, companies and otherpersons needing to discharge were to obtain NPDES

permits.

Overtime, NPDES limits were to be tightened until discharges were eliminated.’

CWA requires dischargers to

comply with both “technology-based” and “water quality-

based” limitations on pollutant discharges. Permit limitations on the quantity and types of

‘Adler, R.W., Landman, J.C. and Cameron, D.M., The Clean Water Act 20 Years Later, Island Press

(1993)p.

137-39; Rodgers, Jr., W.H., Environmental Law, Second Edition (1994) pp. 361-62.

In Re: InterimPhosphorus Effluent LimitR2004-26

pollution permitted

are to

be set according to either technology-based effluent limits or water

quality standard based limits, whichever is more stringent.

33 U.S.C.

1311 (b)(1)(C);

see also

Rodgers, Jr., W.H., Environmental Law, Second Edition (1994) p. 352.

Technology-based effluent rules (also known as “effluent limitation guidelines”) are

based on the greatest degree ofeffluent reduction economically achievable for a particular

industry.

EPA has promulgated nationwide technology-based effluent guidelines formany

industries,

see

40 C.F.R. Parts 405 to 499.

When there is no applicable effluent limitation

guideline, the permitting authority must exercise “bestprofessionaljudgment” to set technology

standards for each permit on a case-by-case basis.

33 U.S.C.

1342(a)(1)(B); 40 C.F.R.

125.3(c).

Publicly owned treatment works are to

meet effluent limits attainable through the

application of “secondary treatment” 33 U.S.C. §~131

1(b) which was to be

specified by U.S.

EPA “within sixty days ofOctober 19,

1972, (and from time to time thereafter).” (33 U.S.C.

131 4(d)(a)). Federal regulations, long overdue forreconsideration, define “secondarytreatment.”

40 CFR §133.102

Water quality-based standards

set the water quality goals for specific waterbodies,

C.F.R.

131.2.

Water quality standards shall provide whenever possible “the protection and

propagation offish, shellfish, and wildlife and provides for recreation in and on the water.”

U.S.C.

1251(a)(2);

40 C.F.R.

§~

130.3,

131.2.

At a minimum, water quality standards must

include:

(1) the designated use or uses ofa water body (e.g., safe to drink, safe to

swim, safe for

aquatic life, safe for fish consumption); (2) the’water quality criteria necessary to protect the

designated use or uses (expressed as a narrative or numeric standard); and (3) an

“antidegradation policy” consistent with 40 C.F.R.

131.12.

See

40 C.F.R.

131.6. Further,

“in

designating uses ofa water body and the appropriate criteria for those uses, the

State shall take

In Re: InterimPhosphorus Effluent LimitR2004-26

into consideration the water quality standards ofdownstream waters and shall ensure that its

water quality standards provide forthe attainment and maintenance ofthe water quality

standards ofdownstream waters.” 40 CFR

131.10(b).

No NPDES permit may be granted that allows discharges that may cause or contribute to

violations of waterquality standards.

40 CFR

122.44(d), which implements CWA Section

301(b)(1)(C), explicitly requires that NPDES

permits include restrictions “necessary to achieve

water quality standards

...

including State narrative criteria.” American Paper Institute v. U.S.

Environmental Protection Agency, 996 F.2d 346, 350 (D.C. Cir.

1993). Permit “limitations

must control all pollutants or pollutant parameters (either conventional, nonconventional ortoxic

pollutants) which

...

are or maybe discharged at a level which will cause, have a reasonable

potential to

cause, or contribute to an excursion above any State water quality standard, including

state narrative criteria for water quality.” 40 CFR

l22.44(d)(1)(i); see also, 40 CFR

122.4(d)

and (i).

Not only must permit limits protect standards in the waters immediately below the

discharge point, standards must be protected in waters far downstream ofthe discharge, even in

another state.

Arkansas v.

Oklahoma, 503 U.S.

91,

107 (1992);

Naturally, given that the CWA seeks to

restore water quality and eliminate discharges the

circumstances in which new pollution is to be allowed are strictly limited.

Thus,

a key element

ofwater quality standards

is antidegradation policy.

An antidegradation policy is “a policy

requiring that state standards be sufficient to maintain existing beneficial uses ofnavigable

waters, preventing their furtherdegradation.”

PUDNo.

1 ofJefferson County v.

Washington

Dep

‘t

ofEcology,

511

U.S. 700,

705 (1994); Each state mustadopt an antidegradation policy

consistent with 40 C.F.R.

131.12, which creates overlapping “tiers” ofprotection.

40 C.F.R.

131.12.

At the base, Tier

requires the maintenance and protection of “existing

instream

In Re: Interim Phosphorus Effluent LimitR2004-26

water uses.”

40 C.F.R.

131. 12(a)(1).

Tier 2 adds another layer ofprotection for water quality

by providing that levels ofwater quality better than that needed to meet standards and protect

existing uses,

“shall

be maintained and protected” unless “allowing lower water quality is

necessary

to accommodate

important

economic or social’development in the area in which the

waters are located.”

40 CFR 131.12(a)(2)(emphasis added).2

Illinois Law follows

the Clean Water Act.,

Illinois has adopted the Clean Water Act requirements into its own laws and regulations.

One ofthe provisions ofthe Illinois Environmental Protection Act is a statement that it is the

policy ofthe General Assembly that the Pollution Control Board and IEPA administer the Clean

Water Act in a mannerconsistent with Illinois administering the NPDES permitting

system. 415

ILCS

5/11 (a)(7), (b).

see also,

Peabody Coal Co.

v. Pollution Control Bd., 36 Ill. App.

344

N.E.2d 279, 285

(5th

Dist.

1976)(Illinois statutes and regulations should be read to accord with

the Clean Water Act. ); 415 ILCS

5/13(b)

(Board rules shall be consistent with the Clean Water

Act).3

Following the Environmental Protection Act, the Board has established waterquality

standards and effluent rules that seek, as a minimum, to

comply with the requirements ofthe

Clean Water Act. In Part 302 ofits regulations, the Board has established numeric and narrative

water quality standards that, with some exceptions, track federal criteria or that deviate from

federal criteria only in ways that are supported by a sound scientific rationale.

It has adopted

antidegradation standards that meet federal requirements.

35 Ill. Adm. Code 302.105.

Tier 3

adds a third and highest layer of protection for Outstanding National

Resource Waters

(“ONRWs”), for waters designated by a state as waters of“exceptional recreational or ecological

significance.”

40 C.F.R.

131.12(a)(3).

In Re: Interim Phosphorus Effluent LimitR2004-26

The Board has also

adopted rules for the issuance ofNPDES permits that are designed

with the goal, among other goals, of complying with the Clean Water Act. Most obviously, 35

Ill. Adm. Code 309.14 1

requires that Agency issued permits comply with the technology based

effluent limits required by the Clean Water Act and any other limits required by federal law.

Further, 35 Ill.

Adm. Code 304.105 requires that any effluent or combination ofeffluents be

regulated to insure that there is compliance with all applicable water quality standards in all

receiving or downstream waters that may be affected by the discharge. see In the Matter of:

Petition ofCommonwealth Edison Company for Adjusted Standard from 35 Ill. Adrn. Code

302.211(d) and (e),

AS 96-10 (PCB, October 3,

1996)

In addition, in Part 304 the Board has created a number of effluent rules.

Some ofthese

effluent rules track federally-mandated effluent rules.

For example, the currentphosphorus rule,

itisofar as it requires that “No effluent discharge within the Lake Michigan Basin shall contain

more than 1.0 mg/L ofphosphorus

as P,”

(35

Ill.

Adm.

304.123(a)) is a required federal rule

established as a result ofthe Great Lakes Water Quality Agreement of 1978.

Under the Great

Lakes Water Quality Agreement, all dischargers in the basins ofLake Huron, Lake Michigan and

Lake Superior discharging more than more than

million gallon per day have had to

meet a limit

of 1

mg/L for phosphorus. (Exhibit A)

Other ofthe effluent rules in Part 304, like the current JEPA phosphorus proposal, are

hybrid rules designedwith both technological treatment capabilities and protection ofwater

quality standards

in mind.

For example, the current phosphorus rule, insofar as it controls

discharges to lake and reservoirs

(35

Ill. Adm.

Code 304.123(b)), was adopted by the Board,

following consideration ofthe cost ofphosphorus treatment and the effects ofphosphorus on

~Ifthe Illinois

Environmental Protection Act is interpreted or implemented by Illinois in such a manner that it does

not fully implement the letter and policies of the Clean Water Act, Illinois

could lose the

ability to administrate

In Re: Interim Phosphorus Effluent LimitR2004-26

lakes, to protect lakes from algal growth and other harmful effects that would cause a violation

ofthe waterquality standards. See In the Matter of: Proposed Amendment to Phosphorus

Effluent Standard, No. 87-6

1990 Ill. Env. Lexis 419 (April

12, 1990)

The Part 304 rules provide rules for permit writers that allow easy formulation ofpermit

limits. In the view ofELPC, Prairie Rivers Network and Sierra Club, these rules have been

abused in cases where, following the effluent rules but not other portions ofthe Board rules,

IEPA permit writers put looser limits in permits when more stringent limits were actually

required to protect water quality standards.4 However, it is certainlybetter that such hybrid

effluent limit rules, developed with technological and water quality considerations in mind, be

used to set some limits on controllable pollution than that there be no limits at all.

II.

Limits on the Discharge of Phosphorus

are needed to prevent violations ofIllinois

water quality standards and comply with antidegradation requirements.

Controls are needed to prevent violations of the water quality standards

regarding offensive

conditions, pH and dissolved oxygen.

Forreasons that are described in greater detail in the testimony ofProfessor Michael

Lemke, controls on phosphorus pollution are needed to prevent conditions in Illinois waters that

violate Illinois water standards.

Generally, U.S. EPA has described the damage caused by excess

nutrients, stating:

Human health problems can be attributed to nutrient enrichment. One serious

human health problem associated with nutrient enrichment is the formation of

trihalomethanes (THMs). Trihalomethanes are carcinogenic compounds that are

NPDES permitting in Illinois. See 40 C.F.R.

123.63.

~Forexample, it is now clear from certain TMDL studies that the effluent limits of35

Ill. Adm. Code

304~.1Z0for

deoxygenatingwastes

are far from adequate to protectIllinois

waters from violations of the dissolved oxygen

standards. By using 35

Ill. Adm. Code

304.120 as a quick and dirty approach to placing controls in permits needed

to prevent violations of DO standards, IEPA in some important cases is permitting pollution that is causing DO

violations. Because there are DO modeling tools that would enable IEPA to do a betterjob, such as the venerable

StreeterPhelps model, IEPA is notjustified in solelyrelying

304.120. Still,

the situation is betterwithIEPA

using 304.120 to place

some limits on deoxygenating wastes than it would be if, fmding it hard to calculate limits

for such pollution, IEPA did not putNPDES controls on it at all.

In Re: InterimPhosphorus Effluent Limit112004-26

produced when certain organic compounds are chlorinated and bromated as part

ofthe disinfection process in a drinking water facility. Trihalomethanes and

associated compounds can be formed from a variety oforganic compounds

including humic substances,

algal metabolites and algal decomposition products.

The densityof algae and the level of eutrophication in the raw water supply has

been correlated with the production ofTHIMs.

Nutrient impairment can cause problems other than those related to human health.

One ofthe most expensive problems causedby nutrient enrichment is the

increased treatment required for drinking water... Adverse ecological effects

associated with nutrient

enrichment include reductions in dissolved oxygen (DO)

and the occurrence ofHABs (harmful algal blooms). High algal and macrophyte

biomass may be associated with severe diurnal swings in DO and pH in some

waterbodies. Low DO can release toxic metals from sediments contaminating

habitats oflocal aquatic organisms. In addition, low DO can cause increased

availability oftoxic substances like ammonia and hydrogen sulfide, reducing

acceptable habitat for most aquatic organisms, including valuable game fish.

Decreased water clarity (increased turbidity) can cause loss ofmacrophytes and

creation of dense algal mats. Loss ofmacrophytes

and enrichment may alter the

native composition and species diversity ofaquatic communities.5

In addition, nutrients, particularly phosphorus, can cause high pH levels which

themselves can be harmful to

aquatic life. Walter K. Dodds, Freshwater Ecology, Academic

Press (2002) p.

34 1-42.

Phosphorus can

also contribute to blue green algae growth that create a

variety oftoxins.

Ind. Dept. ofEnv. Mgt.,

Water Colunm Fall 2001

Vol.

13 No. 4 (Exhibit B)

Illinois waters that have been monitored for impairments that could have been caused by

phosphorus pollution show that phosphorus is already having a major effect on Illinois waters

even without addition offurther loading ofphosphorus that the Agency proposal is designed to

moderate.

The 1BPA water quality report for 2004 shows that over 100,000 acres ofthe under

150,000 acres of Illinois lakes monitored by JEPA were impaired by “Excessive algal

growth/Chorophyll a” (Exhibit C).

~U.S. Environmental Protection Agency, Nutrient

Criteria, Technical Guidance Manual,

Rivers

and Streams, EPA

822-B-00-002 (July 2000) (pp.

4-5,

citations omitted).

In Re: Interim Phosphorus Effluent Limit112004-26

IEPA does not really study, or studies only indirectly, adverse river conditions likely to

be caused by phosphorus pollution.

Nonetheless, JEPA in its 2004 water quality reporthas

listed phosphorus as a potential cause ofimpairments ofnumerous river miles, including sections

ofthe Illinois, Wood and Mississippi Rivers, which are, of course, downstream ofnumerous

Illinois dischargers ofphosphorus and other sources ofphosphorus. (Exhibit

C)7

However,

recent studies show that algal blooms are causing violations ofDO and pH standards in dammed

pools in

the Fox River. See

Victor Santucci Jr. and Stephen R. Gephard, Fox River Fish Passage

Feasibility Study, http://www.co.kane.il.us/kcstorm/dams/fishpssg/final.pdf.,

pp. 42-54. (Exhibit

Earlier with regard to the Fox

River, the Illinois

Natural History Surveywrote of the effect of

elevated phosphorus levels on the Fox:

High nutrient inputs and still-water environments createdby the

numerous channel dams situated along the entire main stem ofthe Fox River in

Illinois promote excessive algal growths.

Very high phosphorus levels appear

to promote and sustain massive algal blooms along the Fox River.

Pronounced algal growth will continue to produce fluctuating DO levels

behind the low channel dams unless significant reduction in phosphorus levels

occurs.8

By creating algal blooms and blooms ofcyanobacteria (a.k. a. “blue green algae”),

nutrients cause a host- ofproblems for Illinois drinking water, recreational uses and aquatic life.

Phosphorus

is known to cause violation ofat least three Illinois water quality standards:

302.203 which states that “Water ofthe State shall be free from sludge or bottom

deposits, floating debris, visible oil, odor, plant or algal growth, color or turbidity ofother

than natural origin,”

IEPA does not measure excessive algal growth in rivers or streams and, astheBoard has heard in R04-25, does not

normally measure dissolved oxygen levels at the time of day at which violations of the DO standards are

likelyto be

found.

~‘

There

is also evidence that phosphorus,

well

as nitrogen, is contributing to the “dead zone” in the Gulfof

Mexico.

(ExhibitE)

Illinois

State Water Survey, Considerations

in Water Use Planning for the Fox River, Contract Report

586

(September

1995)

pp. 100,

104,

113,

120,122.

(Exhibit F)

In Re: Interim Phosphorus Effluent LimitR2004-26

302.204 which provides that pH shall be within the range of

6.5

to 9.0

except for natural

causes,

and

302.206 Dissolved Oxygen.

Although it is well aware that phosphorus discharges can cause or contribute to violations

ofthe three water quality standards

in Illinois waters, IEPA does not now generally limit

phosphorus discharges on the grounds that Illinois does not currently have numeric nutrient

standards. However, issuing permits that ignore the effect ofnutrients on algal

growth, dissolved

oxygen

levels and pH does not comply with the federal and

state requirements

that NPDES

permits

control all pollutants that may cause or contribute

to a violation of state numeric

narrative

water quality standards.

IEPA has now proposed

mg!L

effluent limit for new or increased discharges of

phosphorus.9 This would basicallybe a step toward limiting the extent to which the problems

caused by phosphorus in Illinois waters

and waters downstream ofIllinois will get worse during

the period that numeric phosphorus standards are developed.

Even for limiting the extent to ‘which things will get worse during the interim, the IEPA

proposal is

very

modest step. In a similar situation in which it was known that phosphorus was

harming the Great Lakes but the

exact

extent ofthe

controls

needed were

unknown,

the United

States and Canada

agreed on

mg/L

phosphorus limits

both

new

and

existing dischargers to

the Lake Michigan

basis and

on a

0.5

mg/L limit

for new

and existing dischargers

LakeErie

~Section

39(a) of

the Illinois Environmental Protection Act clearly places the burden

the

applicant to offer

“proof’

that its proposed permit “will not cause the a violation ofthis Act or of

regulations

thereof.”

Permits that allow discharges that

may

cause or contribute

to violations of

water

quality

standards violate 40 CFR 122.44(d) and the Illinois regulations that incorporate

those federal

requirements.

Ill. Adm. Code 309.141.

Accordingly, the Agency should not

grant NPDES permits

for

discharges without proofby

the applicant

that the discharge will

not

cause

or contribute to violations of

state

dissolved oxygen standards

and other standards.

In Re: Interim Phosphorus Effluent LimitR2004-26

and Lake Ontario.

In areas ofthe country where nutrients arebeing seriously addressed, limits

well below

0.5

mg/L are common. (see Testimony ofBeth Wentzel)

Moreover, given that the

U.S.

EPA 2000 and 2001

criteriadocuments for nutrients

suggest that Illinois numeric

phosphorus standards should be under .08

mg/L, an effluent limit of 1.0 mg!L should be seen

a very conservative step

even by those with hopes that the final Illinois water quality standards

will be

a substantial multiple ofthe U.S. EPA criteria.

B. Antidegradation requires that new or increase discharges be limited to 1

mg/L of phosphorus or less.

The Agency’s proposal is limited to new or increased discharges. Such discharges are

already subject to antidegradation regulations. Under the antidegradation regulations, lowering of

water quality may only be allowed if it is necessary to

accommodate important economic or

social development. 40 CFR

131.12;

35 Ill.

Adm. Code 302.105(c).

Treatment alternatives must

be considered. See 35 Ill. Adm.

Code 302.105(f)(1)(D) because a lowering ofwater quality is not

necessary if it can practicably be avoided.

As statedby 35 Ill.

Adm. Code

1 05(c)(2)(B)(iii), before a new or increased loading may

be allowed all “technically and economicallyreasonable measures to

avoid or minimize the

extent ofthe proposed increase in pollutant loading” must be incorporated.

U.S.

EPA in its

~WaterQuality

Standards Handbook

(4th

Edition 1994) explained:

Lowering

water quality is allowedonly

in a few extraordinary

circumstances where the economic

and social need for the activity

clearly outweighs the benefit ofmaintaining water quality above

that required for “fishable/swimmable” water, arid both cannot be

achieved. The burden of demonstrationon the individual proposing

such activity will be very high. In any case, moreover, the existing

use must be maintained and the activity shall not preclude the

maintenance ofa “fishable swimmable” level ofwater quality

protection. (p. 4-7)

In Re: InterimPhosphorus Effluent Limit112004-26

New or increased discharges ofphosphorus, then, are only permissible to the extent it is

necessary for dischargers to discharge more than a monthly average of 1

mg/L ofphosphorus.

is clear, however, that it is never necessary for the dischargers covered by the proposed IEPA

effluent limit to discharge more than

mg/L phosphorus. As detailed in the testimony ofBeth

Wentzel, dischargers throughout the Great Lakes Basin, very large numbers of dischargers across

the country and numerous Illinois

dischargers have met

suchlimits, in some cases for decades,

without stifling their economic orsocial development.

Particularly as limited to relatively large

dischargers, the Agency proposal adds little

to existing antidegradation requirements and

adoption ofthe Agency proposal by the Board willnot create significant new legal requirements

for Illinois dischargers. The main role ofthe new effluent rule will be to clarify forpermit writers

and permit applicants that phosphorus limits at least as tight as

mg/L will be required. (see

August 30, 2004 Tr.

54-55).

Conclusion

The IEPA phosphorus effluent limit proposal in general is supported by the provisions of

the Clean Water Act and the Illinois Environmental Protection Act. In furthertestimony,

language is proposed that would improve the proposal by clarifying its language and assuring

that it cannot be read to violate the basic federal and

state rules that NPDES permits must

comply with the antidegradation policy and cannot allow discharge ofpollutants that would

cause or contribute to the violation ofnumeric or narrative water quality standards.