ON CONTROL
BOARD
STATE OF ILLINOIs
BEFORE THE
Pollution
Controj
Board
IN THE MATTER OF:
NOTICE OF FILING
TO:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
State ofIllinois Center
100 W. Randolph, Suite 11-500
Chicago, Illinois 60601-3218
Bradley Halloran, Hearing Officer
Illinois Pollution Control Board
State of Illinois Center
100
W. Randolph, Suite 11-500
Chicago, Illinois
60601-3218
Richard R. Elledge
Gould & Ratner
222 North LaSalle Street
Chicago, Illinois 60601
Robert T. Lawley, ChiefLegal Counsel
Department ofNatural Resources
524
S.
Second Street
Springfield, Illinois 62701-1787
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe
Pollution Control Board the attached Motion for Leave to File Recommendation
Instanter
and
Recommendation ofthe Illinois Environmental Protection Agency, a copy ofwhich is herewith
served upon you.
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
BY:
O9~rroJ~
~
Deborah J.
iliams
Assistant Counsel
Division ofLegal Counsel
DATED:
April
I~
2002
1021 N. Grand Ave. East
P.O.
Box
19276
Springfield, Illinois 62794-9276
(217)
782-5544
THIS FILING IS SUBMITTED
ON RECYCLED PAPER
RE
CEAi
VED
CLERk’S 0~FfCE
~4PR1
6
2002
Petition ofMATERIAL SERVICE CORPORATION
for an Adjusted
Standard from
35 Ill. Adm.
Code
302.208, 406.202
and 304.105
)
)
)
)
AS 02-1
(Adjusted Standard)
)
)
RECEKVED
CLERk’S OFFICF
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
I4PR
162002
IN THE MATTER OF:
)
STATE OF ILLINOIS
Petition ofMATERIAL SERVICE CORPORATION
)
AS 02-1
PO1IUtIOfl
Control
Board
for an Adjusted Standard from 35 Iii. Adm. Code
)
(Adjusted Standard)
302.208, 406.202 and 304.105
)
)
MOTION FOR LEAVE TO FILE RECOMMENDATION INSTANTER
NOW COMES the Illinois Environmental Protection Agency (“Illinois EPA”) by one of
its attorneys, Deborah J. Williams, and moves the Pollution Control Board (“Board”) to allow the
filing ofthe Illinois EPA Recommendation
instanter
in the above matter.
In support of its
request, the Illinois EPA states as follows:
1.
On November 29, 2001, MSC filed a Petition for an Adjusted Standard from 35
Ill. Adm.
Code 302.208,
406.202 and 304.105 with the Illinois Pollution Control Board
(“Board”) for relief from the Total Dissolved Solids and Sulfates limitations applicable to its
quarry operation located in the Village ofMcCook, Cook
County, Illinois.
2.
On December 19, 2001, MSC filed a Certificate of Publication with the Board
pursuant to 415 ILCS
5/28.1(d)(2000) and 35 Ill. Adm. Code
104.408 and 104.410
certifying that
notice ofits Adjusted Standard Petition was published in the Chicago Tribune on December 10,
2001.
3.
The Illinois EPA is required to
respond to a Petition for Adjusted Standard within
forty-five (45) days offiling pursuant to 35 Iii. Adm.
Code
104.416.
4.
On January 16, 2002, the Hearing Officer grantedthe Illinois EPA’s motion for
extension oftime to file its Recommendation until February 28, 2002.
On February 28, 2002, the
Hearing Officer granted a second motion for extension oftime until March 28, 2002.
5.
The time required by Section
104.416 and the additional time granted by the
Hearing Officer has been inadequate for the Illinois EPA to
finalize its Recommendation due to
the conflict ofother time sensitive obligations.
6.
Petitioner will suffer no prejudice should the Illinois EPA’s motion be
granted as
the Illinois EPA’s final Recommendation to the Board in this matter recommends that the Board
grant Petitioner’s Adjusted Standard Petition.
WHEREFORE, the Illinois EPA respectfully requests that its Recommendation in
AS
02-1 be
filed
instanter.
Respectfully Submitted
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
BY2kOAiJUJ)LIJL&/Th
Deborah ~JWi11iams
Assistant Counsel
Division ofLegal
Counsel
DATED:
April
1~
,
2002
1021
N. Grand Ave. East
P.O. Box 19276
Springfield, Illinois
62794-9276
(217) 782-5544
RE
C ~
D
CLERk’S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
~4PR
162002
IN THE MATTER OF:
)
STATE OF
ILLINOIS
)
POllution Control
Board
Petition of MATERIAL SERVICE CORPORATION
)
AS 02-1
for an Adjusted Standard from 35
Ill. Adm.
Code
)
(Adjusted Standard
-
Water)
302.208, 406.202 and 304.105
)
)
RECOMMENDATION OF THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
NOW COMES the Illinois Environmental Protection Agency (“Illinois EPA”) by one of
its attorneys, Deborah J. Williams,
in response to the Petition for Adjusted Standard (“Petition”)
ofMaterial Service Corporation (“MSC” or “Petitioner”) from 35 Ill.
Adm. Code 302.208,
406.202 and 304.105 and pursuant to 35 Ill.
Adm. Code
104.416, hereby recommends that the
Pollution Control Board (“Board”) GRANT MSC’s request for an Adjusted Standard from 35
Ill.
Adm. Code
302.208.
The Illinois EPA concludes that an Adjusted
Standard from this
provision makes an Adjusted Standard from 35 Ill. Adm.
Code 304.105
and 406.202
unnecessary.
In support of its recommendation, the Illinois EPA states as follows:
I.
INTRODUCTION
1.
On November 29, 2001, MSC filed a Petition with the Board for an Adjusted
Standard from 35 Ill.
Adm. Code
302.208, 406.202 and 304.105
for relief from the total
dissolved solids (“TDS”) and sulfate limitations applicable to its
quarry operation located in the
Village ofMcCook, Cook County, Illinois.
2.
On December 19, 2001, MSC filed a Certificate of Publication with the Board
pursuant to 415 ILCS
5/28.1(d)(2000) and 35 Ill.
Adm. Code
104.408 and
104.410 certifying
that notice of its Adjusted Standard Petition was published in the Chicago Tribune on December
10, 2001.
The Board apparently accepted MSC’s Adjusted Standard Petition and Certificate of
Publication on January 10,
2002.
3.
The Illinois EPA is required to file a Recommendation with the Board within 45
days ofthe filing ofa Petition for Adjusted Standard or within 30 days before a scheduled
hearing date, whichever occurs earlier.
35 Ill. Adm.
Code
104.416.
On January 16, 2002,
the
Hearing Officer granted the Illinois EPA’s motion for extension oftime until February 28, 2002.
On February 28, 2002, the Hearing Officer granted the Illinois EPA’s motion for extension of
time to file its Recommendation until March 28,
2002.
The Illinois EPA has filed a motion to
accept filing ofits Recommendation
instanter
simultaneously with this Recommendation.
MSC
has waived its
right to a hearing in this matter.
Petition
at 15.
II.
BACKGROUND
4.
MSC operates a limestone quarry in the Village ofMcCook located in the
southwestern portion ofCook
County.
Petition for Adjusted Standard (“Pet.”) at
1.
MSC’s
discharge is permitted pursuant to National Pollutant Discharge Elimination System (“NDPES”)
permit No. IL 0001945, issued on
September 25, 2000 (expiration date August 31, 2005) and
NPDES permit No.
1LG840029 a general permit for non-coal mines issued to MSC on December
9,
1997 and expiring on May 31, 2002.
5.
The Federal Quarry is 300 feet deep and intersects groundwater seams.
Pet. at
1.
Groundwater as well as surface water (in the form of rain) enters the quarry pits
and must be
pumped out to facilitate quarrying operations.
The water is pumped out ofMSC’s quarry and
discharged into the McCook Drainage Ditch.
Petitioner has stated that groundwater seepage and
stormwater must be pumped from the quarry at an estimated average rate of3,600,000 gallons
per day.
Pet. at
1.
After a storm event, the volume
approaches 6,000,000 gallons per day.
Pet.
2
at 4.
Upstream from the MSC quarry, the McCook Ditch receives discharges from the Village of
Brookfield’s storm sewer system.
Below MSC’s outfall, the Ditch receives additional industrial
discharges and flows into the Summit Conduit.
The Summit Conduit transports these waters
under the DesPlaines River and into the Chicago Sanitary and Ship Canal.
Pet. at
1-2.
6.
The groundwater in the area ofMSC’s quarry is very “hard.”
Dissolved solids
and sulfate are present in high concentrations and in many cases uncontaminated groundwater
does not meet the water quality standards for TDS of 1,000 milligrams per liter
(“mgIL”)
and
sulfate of 500 mg/L.
The rainwater that falls into the quarry pits dilutes the accumulated
groundwater, but this is often still not enough dilution to meet water quality standards in the
water that is pumped into the receiving stream.
7.
In addition to pumping accumulated
groundwater and runoffinto the McCook
Ditch, some ofthe accumulated water is used by MSC to wash its product.
Pet. at
5.
Settling
ponds are used to remove the rock dust from this process.
This effluent is mixed with the pit
pumpage and discharged to the stream.
Id.
MSC submitted a technical justification document
with its Adjusted Standard Petition prepared by their consultant, DAI Environmental titled
“Technical Evaluation for an Adjusted
Standard Petition, Material Service Corporation
—
Federal
Quarry, McCook, Illinois (November 28, 2001).”
See
Pet. at Exhibit 3.
MSC’s consultant
concluded that the effluent produced from washing its product with groundwater seepage is not a
contributing factor to the receiving stream’s inability to meet the TDS and sulfate water quality
standards for general use waters, but rather, it is hardness ofthe groundwater that is preventing
MSC’s discharge from meeting the water quality standards for TDS and sulfate.
8.
The Chicago Ship and Sanitary Canal into which the McCook Drainage Ditch
flows is
defined as Secondary Contact and Indigenous Aquatic Life Waters under Illinois law.
3
See,
35
Ill. Adm.
Code 303.204 and 303.441(a).
Pursuant to 35
Ill.
Adm. Code 302.407, there is
no
secondary contact standard for sulfate and the standard for TDS is
1,500 mg/L.
III.
RELIEF REQUESTED
9.
With regards to the relief requested, MSC states that it is requesting an adjusted
standard to set the water quality standard in the McCook Drainage Ditch at a level reflective of
the background levels seeping from the groundwater.
Pet. at 9.
Petitioner has requested relief
from the Board in the form ofadjusted water quality standards for TDS and sulfate applicable to
the McCook Ditch.
The Illinois EPA would submit the adjusted standard, if granted by the
Board, to the United States Environmental Protection Agency (“U.S. EPA”) for approval and
incorporate the limits established by the adjusted standard into MSC’s NPDES permit IL
0001945.
It is anticipated by the Illinois EPA that if adjusted standard relief is granted by the
Board, MSC will no longer hold a general permit and a site specific permit, but its outfalls will
be
incorporated into a single site specific NPDES
permit.
10.
Specifically, MSC is requesting an adjusted water quality standard in the McCook
Ditch of 1,900 mgIL ofTDS (increased from
1,000 mg/L) and 850 mg/L of sulfate (increased
from 500 mg/L).
In reviewing the level of relief requested by MSC, it appears that the requested
adjusted water quality standards
are set at a level for sulfate that is
somewhat above that sampled
by MSC, but lower than levels obtained from studies ofthe same aquifer.
MSC requested a level
for TDS that is
lower than the highest recorded values obtained by MSC, but leaves a margin of
safety above the typical average values found throughout the aquifer.
11.
Typically, an Illinois EPA Recommendation for the grant ofan adjusted water
quality standard would identify the beginning ofthe receiving stream affected as the Petitioner’s
discharge point.
MSC has requested that the relief cover the entire length of the McCook Ditch
4
beginning at the ~
Street Culvert.
Given the location ofMSC’s
outfall, the Illinois EPA agrees
this is a reasonable and convenient method of defining the receiving stream.
IV.
LEVEL OF JUSTIFICATION REQUIRED
12.
The Illinois EPA agrees with the Petitioner that the regulations of general
applicability at 35 Ill. Adm.
Code 302.208, 304.105
and 406.202 do not specify a level of
justification or other requirements necessary forthis type ofadjusted standard.
Since there is no
specific level ofjustification for adjusted standards from the regulations at issue in this Petition,
the general level ofjustification provided in Section 28.1 ofthe Environmental Protection Act
(“Act”), 415 ILCS
5/28.1, is the standard ofreview by which the Board is to judge the instant
adjusted standard petition.
Section 28.1(c) of the Act, 415 ILCS 5/28.1(c), provides the general
level ofjustification the Board must find a petitionerto have met when granting an adjusted
standard petition.
That subsection provides:
The
Board may grant individual adjusted standards
whenever the
Board determines, upon adequate proofby petitioner, that:
1) factors
relating to that petitioner are substantially and significantly different
from the factors relied upon by the Board in adopting the general
regulation applicable to that petitioner; 2) the existence ofthose factors
justifies an adjusted standard; 3) the requested standard will not result in
environmental or health effects substantially and significantly more
adverse than the effects considered by the Board in adopting the rule of
general applicability; and 4) the adjusted standard is consistent with any
applicable federal
law.
The Illinois EPA believes that this is the proper standard for the Board to consider and that MSC
has met this standard of review in this case for the reasons outlined below.
V.
FACTS
PRESENTED IN
THE PETITION
13.
Although the McCook Ditch is defined under Illinois
law as general use waters,
it
empties into the Chicago Sanitary and
Ship Canal which is defined as secondary contact and
5
indigenous aquatic life waters.
In addition to MSC’s discharge, the McCook Ditch receives
discharges from a number ofindustrial
and municipal effluents.
14.
The McCook Drainage Ditch is considered a low flow stream because it has a
seven day, ten year low flow value (“7Q1 0”) of zero cubic feet per second.
The high
concentration ofeffluent containing groundwater with elevated background concentrations of
TDS and sulfate results in stream concentrations that violate water quality standards.
15.
MSC states its quarry floor is below the local water table and groundwater seeps
from the quarry face.
Pet. at 4.
The only treatment currently performed on the waterthat seeps
into the quarry or is used to washproduct is the use of settling ponds.
Pet. at
5.
The groundwater
seepage and storm water are drained to a pair ofsettling ponds on the quarry floor. That water is
pumped up to another pond on an intermediate grade and then up to a tank at grade and led
through culverts to the McCook Drainage Ditch. Pet. at 4. MSC’s consultant performed sampling
ofgroundwater seeping into the quarry and found an average TDS level of 1,345 mg/L and an
average sulfate level of425 mg/L. Pet.
at 4-5.
MSC states the average predicted concentrations
in the McCook Ditch of sulfate are 215 to 512 mg/L and 865 to
1,787 mg/L ofTDS.
Pet. at
10.
16.
The older portion ofthe quarry is operating under general permit ILG 840029 for
non-coal mines that expires statewide on May 31, 2002 and has no TDS or sulfate limits.
Pet. at
Appendix A.
The Illinois EPA did not have information at the time this permit was issued ofany
compliance problems with the TDS and sulfate water quality
standards in the McCook Ditch.
An NPDES permit (IL000 1945) has been issued for the newest areaof MSC’s quarry with limits
for TDS and sulfate set at the general use water quality standard after additional sampling data
was presented as part ofthe permitting process.
Id.
According to MSC, this mine will not reach
groundwater for several years,
so there will not be an immediate problem meeting these limits.
6
The Illinois EPA and MSC intend to amend this site specific permit to incorporate any adjusted
water quality standard approved by the Board in this matter.
Outfalls 002 and 003
are covered
by the site specific permit, while outfall 001
is currently still covered by the general permit.
17.
In winter, when road salt runoffis high, MSC’ s discharge stabilizes the levels of
TDS and sulfate in the Ditch.
Under normal conditions, MSC’s discharge increases the levels in
the ditch by
169 mg/L of sulfate and 346 mg/L of TDS.
Pet.
at
10.
Appendix I.
When there is
storm water present, the levels ofTDS and sulfate are also diluted significantly.
18.
According to
MSC’s consultant, at periods of low flow, MSC’s discharge into the
ditch may be the only flow component that fosters any permanent aquatic ecosystem in the water
body.
Pet. at
10.
The Illinois EPA agrees with this analysis and would even go
so far as to say
that the quarry effluent is one ofthe
less contaminated sources ofwater in the McCook Ditch.
VI.
EFFORTS NECESSARY TO ACHIEVE COMPLIANCE AND ALTERNATIVES
19.
The Petitioner examined several alternatives to achieve compliance with the TDS
and sulfate water quality standard.
The alternatives addressed by MSC are dilution, deep well
injection,
and reverse osmosis and de-ionization.
Pet.
at 7-8.
With regard to dilution, MSC’s
consultant estimated that 2 million gallons per day of Lake Michigan water would have to
be
discharged to sufficiently dilute the McCook Ditch to meet the water quality standards.
MSC
does not quantify whether dilution is a cost effective solution, since it concludes that the stress it
would place on the McCook Ditch and the Summit Conduit are so great as to make the
alternative technically infeasible.
Pet. at 7.
The Illinois EPA agrees that it is an undesirable
method ofcompliance to utilize so much clean Lake Michigan water to dilute background
concentrates ofTDS and sulfate from the groundwater seepage into MSC’s quarry.
20.
Deep well injection of the seeping groundwater into a deeper stratum was also
considered.
MSC’ s consultant estimates this would require
8 to
10 injection wells located
7
several hundred feet apart from each other.
Pet.
at 7.
MSC concluded that this alternative might
not be capable ofbeing managed effectively given the high dissolved solids and low suspended
solids nature ofthe seepage.
Id.
Capital costs of this alternative are estimated from between $19
million to $26 million with annual operating costs as high as $16 million to $20 million.
Pet. at
7, Appendix J.
21.
Reverse osmosis and De-ionization would both involve removing dissolved
minerals from the discharge by treating 40 percent ofthe total seepage prior to discharge.
Pet.
at
8.
Reverse osmosis would be somewhat less expensive, but both technologies would result in
waste product ofbrine that would have to be disposed ofby injection wells.
The costs of these
technologies would be between $2,300,000 and $3,200,000 with annual and operating costs per
year of $2,300,000 to $5,600,000.
This does not include an additional $1,400,000 to $1,900,000
each year for brine disposal.
Id.
22.
The Illinois EPA agrees that the alternative technologies discussed by MSC for
treatment and disposal are an accurate representation ofthe available technologies to achieve
compliance with these parameters.
The Board has found these technologies to be lacking in
several other adjusted standard petitions.’
As MSC points out in its Petition, the Board has
recognized that the treatment technologies available for sulfate are very expensive and result in
bi-products that create environmental concerns of their own.
Pet.
at 8.
MSC
‘
s Petition
accurately details the futility ofthe alternative treatment methods to
reduce the TDS
and sulfate
in its effluent.
There is no economically reasonable
technology to remove or dispose ofthese
dissolved substances other than the existing discharge to surface waters.
1
See
Adjusted
Standards granted
to
the following dischargers:
Consumers
Illinois Water
Company
and Nutrasweet
(Takasago)(AS
89-3),
Borden Chemical (AS
93-2), Akso
Nobel (AS
93-8), Abbot Laboratories (AS
99-5)
and
Rhodia,
Inc. and Thorn Creek Basin Sanitary District
(AS
01-9).
8
23.
In addition to a discussion ofalternatives, MSC’s petition thoroughly explains the
geological conditions that make compliance
impossible in this case.
After evaluating the
annualized and capital costs ofeachalternative and considering the adverse cross-media
environmental impacts resulting from the various alternative methods of compliance, the Illinois
EPA agrees that none ofthese are viable options.
In addition, the cost ofcompliance presented
by the Petitioners
exceeds the typical cost of secondary treatment for these pollutants, which is
takeninto account in establishing the best achievable technology that
is economically available
for industrial sources.
The Illinois EPA believes that all conceivable options were investigated
and none are technically feasible or economicallyreasonable.
VII.
ENVIRONMENTAL IMPACT
24.
The environmental harm addressed by Petitioner and investigated by the Illinois
EPA involves the toxicity of TDS and sulfates to aquatic life.
The Petitioner’s environmental
consultant evaluated the relative toxicities ofTDS and sulfate to aquatic life.
Toxicity testing
using native aquatic organisms has also been conducted for other adjusted standardjustifications.
See,
footnote
1
above.
The Illinois EPA agrees that based on this and othertoxicity studies that
no adverse
impacts to aquatic life in the receiving stream would be expected at the highest
predicted stream concentrations ofTDS and sulfate.
The Illinois EPA agrees with Petitioner’s
conclusion that the levels discharged are not likely to have any adverse effects on the aquatic life
expected to reside in McCook Ditch.
25.
MSC’s consultant looked at impact on downstream indigenous aquatic life ofthe
proposed adjusted standard using
a literature review covering typical freshwater fish
(blue gill,
large mouth bass, and channel
catfish).
The LC5O mortality rate for these species was found to
range from
14,000 to
17,500 mg/L ofTDS and
10,000 to
11,000 mg/L
sulfate.
Pet. at
11.
The
9
Petitioner’s consultant also reviewed a recent study conducted
by Huff & Huff and presented by
Rhodia, Inc.
and Thorn Creek Basin Sanitary District
in AS 0 1-9.
Pet. at
11.
The Illinois EPA
agreed with the conclusions ofthat study
and recommended the Board grant that adjusted
standard.
That study looked at chronic toxicitytests for TDS and sulfate on a species ofwater
flea and the flathead minnow and found a no observed effect concentration of 2,970 mg/L TDS
and 1,388 mg/L
ofsodium
sulfate (the form ofsulfate at issue in that case).
Pet.
at
11.
26.
MSC presented evidence in its Petition and technical justification document that
its
operations do not significantly raise TDS and sulfate levels above the level found naturally in
the background groundwater.
The Illinois EPA agrees with Petitioner’s statements that its
process ofpumping
some groundwater seepage for use in washing some ofits product does not
contribute significantly to the inability ofMSC’s
discharge to meet the general use water quality
standards.
Geological information was presented regarding the presence in the shallow aquifer
flowing into MSC’s quarry ofbackground
TDS levels from
1,200 to
1,600 and sulfate levels
from 500 to 700 mg/L.
Pet. at
5.
Petitioner’s environmental consultant estimated that a 6 mg/L
increase in TDS and
3 mg/L increase in sulfate in the Sanitary and Ship Canal can be attributed
to
MSC’s discharge.
Pet. at 6.
Discharge monitoring by MSC finds average TDS levels of 1,299
mg/L with a range of 1,070 mg/L
to
1,400 mg/L.
Sulfates have been monitored from MSC’s
effluent at an average of427 mg/L with a range from 351
mg/L up to
524 mg/L.
Pet.
at 6.
27.
The Illinois EPA agrees with the conclusion ofMSC’s
consultant that the current
discharge is not having a detrimental effect on existing aquatic life in the McCook Ditch and the
proposed adjusted standard relief is lower than necessary to protect that life. Under most
conditions, there will be water from other sources in the receiving stream that will dilute the
quarry water’s TDS and sulfate content.
Under conditions ofwinter runoffwhen area streets
10
have been salted, higher TDS concentrations will be found upstream ofthe quarry discharge.
This runoff is high in chlorides, which are not at issue in the quarry discharge.
McCook Ditch
may suffer from some ofthe problems of other urban streams that receive salty runoffduring the
winter and early spring, but the Illinois EPA does not find that the quarry discharge exacerbates
these conditions and may even be helping the overall quality ofthe stream.
In addition, the TDS
and sulfate standards
were set primarily to protect domesticated livestock watering which, as an
urbanized area, the McCook Drainage Ditch does not support as a use.
VIII.
PETITIONER’S
JUSTIFICATION
OF PROPOSED
ADJUSTED STANDARD
28.
The Board must review the justification for a proposed adjusted standard pursuant
to
35
Ill.
Adm.
Code
104.426.
This
rule provides
that the
Petitioner must justify its
adjusted
standard consistent with Section 27(a) of the Act, 415
ILCS 5/27(a)(2000).
That section requires
the Board
to take into account
five specified
factors when promulgating regulations,
including
adjusted standards:
the existing physical conditions; the character ofthe area involved including
surrounding
land
use;
zoning
classifications;
nature
of the
receiving
water
body;
and
the
technical feasibility and economic reasonableness of measuring or reducing the particular type of
pollution.
It
is
the
Illinois
EPA’s
conclusion,
based
on
the
facts
identified in
the preceding
sections
of this
Recommendation, that these
factors point in
favor of the grant of an
Adjusted
Standard to the Petitioner.
29.
Additionally,
35
Ill.
Adm.
Code
104.426(a)
restates
the
four
additional
factors
specified
in
Section
28.1
of the Act
415
ILCS
5/28.1,
to
be
proven
by
the Petitioners:
the
Petitioners’
relevant factors are substantially
and
significantly
different
from
the factors
relied
upon
by
the
Board
in
adopting
the
general
regulation
applicable
to
the Petitioners;
that these
factors
justify
an
adjusted
standard;
the
requested
adjusted
standard
will
not
result
in
11
environmental
or
health
effects
substantially
or
significantly
more
adverse
than
the
effects
considered by the Board in adopting the rule of general applicability;
and the requested adjusted
standard is consistent with any
applicable federal law.
30.
In making its
Recommendation to
the Board,
the Illinois EPA concludes that no
additional
environmental harm will result from
a grant ofthe requested relief.
The Illinois
EPA
also concludes that the requested adjusted standard will not result in environmental impacts
that
are
“substantially
or
significantly”
more
adverse than the
effects considered
by
the
Board
in
adopting the rule ofgeneral applicability.
Given the zero 7Q10 nature ofthe McCook Ditch, the
Illinois
EPA agrees
that
the
proposed
adjusted
standards
of
1,900
mg/L
TDS
and
850
mg/L
sulfate
are
appropriate
and
necessary for
the
quarry
to
continue
its
current operations
in
an
economically feasible manner and that these levels will cause no harm to the receiving stream.
31.
Impossibility is an element ofthejustification presented by MSC in this case.
MSC must pump groundwater out ofthe quarry or it will fill with water and its operation will be
forced to
cease.
MSC can not prevent the elevated levels ofTDS and sulfates entering the quarry
and its options fortreating the water before discharge are expensive, create new environmental
consequences and will not result in significant improvement to the water quality ofthe McCook
Ditch.
The Illinois EPA does not believe the Board considered these factors in establishing the
general use water quality standard for TDS and sulfates.
Furthermore, the Board was not able to
consider the toxicity studies currently available in setting this standard.
The Illinois EPA is
currently reviewing toxicity studies to evaluate whether new science supports a change to the
general use water quality standard itself.
As indicated above, the Board developed a water
quality standard in the early 1970’s that it believed was necessary to protect watering livestock,
fish
and the public water supply.
Livestock watering is not an issue in this case since public
12
access to
this water body is
limited, no stock watering occurs in the vicinity ofthe McCook
Ditch, and the Village ofMcCook’s zoning ordinance prohibits stock watering in this area.
Pet.
at 13,
15.
In this case, the groundwater itself is the source ofthe contamination and its
discharge
will have no known impact on a public water supply.
MSC has also
demonstrated there will be
no harm to existing
aquatic life if this adjusted standard is granted.
The Illinois EPA agrees that
the factors present in this case are different than the factors the Board was looking at and trying
to protect in developing the rule ofgeneral applicability.
IX.
CONSISTENCY WITH FEDERAL LAW
32.
The existing general use Illinois water quality standards have been approved by
U.S. EPA.
The proposed adjusted standards for water quality, if adopted by the Board, will be
submitted for approval to
U.S. EPA.
MSC correctly points out that the Board can grant this
adjusted standard petition without running afoul ofthe mandates ofthe Clean Water Act.
X.
HEARING
33.
Petitioner has waived its right to a hearing in this matter.
The Illinois EPA agrees
that no hearing is necessary for the Board to make a determination on this request for Adjusted
Standard.
XI.
RECOMMENDATION AND CONCLUSION
34.
The Illinois EPA recommends that Petitioner, Material Service Corporation, be
granted the requested adjusted standard, pursuant to 415 ILCS
5/28.1
and consistent with 415
ILCS 5/27(a), from the Total Dissolved Solids and Sulfate requirements contained in 35
Ill.
Adm. Code 302.208, for the Petitioner’s Village ofMcCook, Cook County, Illinois quarry
facility.
The Illinois EPA does not believe the requested adjusted standard from
35 Ill. Adm.
Code 304.105 or 406.202 are necessary in this case, as an adjusted TDS and sulfate water quality
13
standard for the McCook Ditch will ensure that MSC’s discharge does not cause ofviolation of
any water quality standards.
MSC requests the adjusted standard for the entire McCook
Drainage Ditch from the
47th
Street Culvert to the Summit Conduit.
Typicallythe Illinois EPA
would recommend that an adjusted water quality standard begin at the point ofdischarge, but in
this case, the description provided by Petitioners provides clarity and only included a few
hundred additional yards ofthe stream segment and is acceptable to
the Illinois EPA.
WHEREFORE, for the reasons stated herein, the Illinois EPA recommends that the
Pollution Control Board GRANT the Adjusted Standard Petition ofMaterial Service
Corporation.
Respectfully Submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
BYi~4~2Ui/(LIL
Deborah J. williams
Assistant Counsel
Division ofLegal Counsel
DATED:
April I~2002
1021 N. Grand Ave. East
P.O. Box
19276
Springfield, Illinois
62794-9276
(217) 782-5544
14
STATE OF ILLINOIS
)
COUNTY OF SANGAMON
)
)
)
SS
PROOF OF SERVICE
I, the undersigned, on oath state that I have served the
attached
MOTION FOR LEAVE TO FILE
RECOMMENDATION INSTANTER
AND
RECOMMENDATION OF
THE
ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY
upon
the person to whom
it is directed, by placing
a
copy in an envelope addressed to:
Dorothy M.
Gunn, Clerk
Illinois
Pollution Control Board
James R.
Thompson Center
100
West Randolph Street, Suite 11-500
Chicago, Illinois
60601
(OVER NIGHT MAIL)
Bradley Halloran, Hearing Officer
Illinois
Pollution Control Board
James R.
Thompson Center
100 West Randolph Street,
Suite 11-500
Chicago, Illinois
60601
(OVER
NIGHT MAIL)
Richard Elledge
Gould and Ratner
222
North LaSalle Street
Chicago, Illinois
60601
(OVER NIGHT MAIL)
Robert Lawley
Chief Legal Counsel
Illinois Department of Natural Resources
222 North LaSalle Street
Chicago, Illinois
60601
(FIRST CLASS MAIL)
and
mailing it from
Springfield, Illinois on April 12, 2002
with sufficient postage affixed as indicated
above.
this
12th
day
of April 2002
Notary Public
~OFFICJALSEAL~.
BRENDA BOEHNER
ç.
NOTARY
PUBLIC,
STATE
OF
ILLINOIS ~
~:MVCOMMISS!ON
EXPIRES
1
SUBSCRIBED AND SWORN TO BEFORE ME
THIS FILING IS SUBMITTED ON RECYCLED PAPER
