ILLINOIS POLLUTION CONTROL BOARD

January 19, 2006

IN THE MATTER OF:

PROPOSED 35 ILL. ADM. CODE

304.123(g), 304.123(h), 304.123(i), 304.123(j),

and 304.123(k)

)

R04-26

(Rulemaking - Water)

Adopted Rule. Final Notice.

OPINION AND ORDER OF THE BOARD (by T.E. Johnson):

Today the Board adopts proposed phosphorus effluent standard regulations. These

regulations set forth a phosphorus effluent limit of 1.0 milligram per liter (mg/L) as a monthly

average that would apply to new or expanded discharges from treatment works with a design

average flow (DAF) over 1.0 million gallons per day receiving municipal or domestic

wastewater, or a total phosphorus effluent load of 25 lbs/day or more for treatment works other

than those treating municipal or domestic wastewater.

The rules adopted here are substantively unchanged from those adopted in the Board’s

first-notice and second-notice opinion and orders. On September 15, 2005, the Board adopted

the rule for second notice. The Board directed that the rule be submitted to the Joint Committee

on Administrative Rules (JCAR) for second-notice review. JCAR considered the rule on

November 15, 2005, and again on December 13, 2005. JCAR issued a certification and

statement of objection to the rule on December 13, 2005. The following opinion will explain the

proposal background, summarize the procedural history, discuss the economic reasonableness

and technical feasibility of the rule, and respond to JCAR’s objection.

BACKGROUND

On May 14, 2004, the Board received a rulemaking proposal from the Illinois

Environmental Protection Agency (Agency). The Agency seeks to set an interim phosphorus

effluent standard by adding five new subsections (g-k) to existing 35 Ill. Adm. Code 304.123. A

motion for acceptance accompanied the proposal.

In its statement of reasons, the Agency asserts that it is in the process of developing the

State numeric nutrient standards pursuant to its triennial water quality standards review. Pet. at

7. The Agency expects to file a nutrient standards petition with the Board in early 2007. Pet. at

8. In the interim, the Agency is proposing this effluent standard for phosphorus to limit higher

concentrations of phosphorus that may result in detrimental levels of plant and algae growth.

The Agency requests that the interim effluent standard apply until the Board adopts a numeric

water quality standard for phosphorus.

Two hearings were held before Board Hearing Officer John Knittle. The first hearing

was held on August 30, 2004 (Tr.1), in Chicago. The second hearing was held on October 25,

2004, in Springfield (Tr.2). During those hearings the Board heard testimony from a number of

witnesses. The Board received 17 public comments prior to proceeding to first notice.

On April 7, 2005, the Board found that the proposal was technically feasible and

economically reasonable. The Board proceeded to first notice, and noted that additional

comments on the proposal would be accepted.

The proposed amendments were published in the

Illinois Register

on May 6, 2005.

See

Ill. Reg. Vol. 29 Issue 19, p. 6200. The Illinois Association of Wastewater Agencies (IAWA)

filed a public comment on June 20, 2005. On July 1, 2005, the Environmental Law & Policy

Center, Prairie Rivers Network and Sierra Club (collectively ELPC) filed a response to the

comments of IAWA. The Agency filed a comment on July 26, 2005.

In its second-notice opinion and order issued on September 15, 2005, the Board found

that adoption of the Agency’s proposed rule was warranted, and proposed the rulemaking for

second-notice review by the JCAR.

JCAR REVIEW

JCAR considered the second-notice proposal at its November 15, 2005 meeting and

voted to extend the second-notice period for an additional 45 days. JCAR considered the

second-notice proposal again at its December 13, 2005 meeting and issued a formal certification

and statement of objection to the proposed rulemaking. The complete text of the objection

follows:

At its meeting on December 13, 2005, the Joint Committee on Administrative

Rules objected to the Pollution Control Board’s rulemaking titled Effluent

Standards (35 Ill. Adm. Code 304; 25 Ill. Reg. 6200) because the rulemaking

imposes an undue economic and regulatory burden on the affected wastewater

treatment facilities by requiring those facilities to meet interim standards for

phosphorus discharges. The EPA has committed to the USEPA to have numeric

standards in place for nutrients, but not until in 2008. This additional time should

allow affected entities more time to prepare for any costs associated with these

standards.

Failure of the agency to respond within 90 days after receipt of the State of

Objection shall constitute withdrawal of this proposed rulemaking. The agency’s

response will be place on the JCAR agenda for further consideration.

See

Statement of Objection to Proposed Rulemaking, December 13, 2005.

The second-notice period commenced on October 7, 2005, and ended on December 17,

2005, when the Board received notification from JCAR that an objection was issued.

See

5 ILCS

100/5-40(c) (2004); 35 Ill. Adm. Code 102.606. Other than the non-substantive comments

suggested by JCAR, the Board received no comments during the second-notice period.

DISCUSSION

At second notice, the Board found that adoption of the proposal is warranted, and that the

proposal was economically reasonable and technically feasible. JCAR stated that they objected

to the proposal because the rulemaking imposes an undue economic and regulatory burden on the

affected wastewater treatment facilities by requiring those facilities to meet interim standards for

phosphorus discharges.

JCAR is a legislative oversight committee that may examine any proposed rule to

determine whether the proposed rule is within the statutory authority upon which it is based;

whether the rule is in proper form; and whether the notice that was given before its adoption was

sufficient to give adequate notice of the purpose and effect of the rule. In addition, JCAR may

consider whether the agency has considered alternatives to the rule that are consistent with the

stated objects of both the applicable statutes and regulations and whether the rule is designed to

minimize economic impact on small businesses. 5 ILCS 100/5-110(a) (2004).

If JCAR certifies its objections to the issuing agency within the second-notice period, that

agency must either modify the proposed rule to meet JCAR’s objections, withdraw the proposed

rule in its entirety, or refuse to modify or withdraw the proposed rule. 5 ILCS 100/5-110(c)

(2004).

If an agency refuses to modify or withdraw a proposed rule to remedy an objection by

JCAR, that agency most notify JCAR in writing of its refusal and submit a notice of refusal to

the Secretary of State. The notice must be published in the next available issue of the

Illinois

Register

. If JCAR decides to recommend legislative action in response to an agency refusal, the

JCAR “shall have drafted and introduced into either house of the General Assembly appropriate

legislation to implement the recommendations of the Joint Committee.” 5 ILCS 100/5-110(g)

(2004).

The Board respectfully disagrees with JCAR’s conclusions. The Board continues to

believe that, based on the cost information in the record coupled with the fact that the proposed

rule applies to only new or expanding larger facilities, affected facilities can incorporate the

additional cost of phosphorus control in their overall expansion plans with an economically

reasonable impact. Once again, it should be stressed that the proposed limit would apply to only

new or expanded discharges from wastewater treatment plants with either a design average flow

over 1.0 million gallons per day receiving municipal or domestic waste water, or a total

phosphorus effluent load of 25 pounds per day or more for treatment works other than those

treating municipal or domestic wastewater. Further, the 1.0 mg/L limit would not apply to a

source that can demonstrate that phosphorus is not the limiting nutrient in the receiving water or

that alternative phosphorus effluent limits are warranted by the aquatic environment in the

receiving water. Thus, the Board finds that the implementation of the proposed phosphorus

effluent standard will not impose an undue economic or regulatory burden.

Further, as the Board explained at second notice, while the findings of the nutrient control

work group referenced by JCAR will help the Agency in developing scientifically justifiable

water quality standards for nutrients, effluent standards are somewhat different. An effluent

standard is mainly intended to limit significant loading of a pollutant to a receiving stream giving

consideration to availability of appropriate treatment technology and associated costs. While

there is currently a water quality standard for phosphorous that applies to some waters of the

State, the impact of the new effluent standard for phosphorus is designed to limit the phosphorus

loading on the State waters.

As stated in the second-notice order, the Board believes it is prudent to control

phosphorus discharge from larger treatment plants given the impact of such discharges on

receiving streams. While non-point source contribution (agricultural drainage and runoff) is also

a significant source of phosphorus loadings, the Board believes that control of phosphorus from

non-point sources is not appropriate in this rulemaking.

The Board finds nothing in JCAR’s objection or in a review of the record to alter its

decision that the implementation of the proposed phosphorus effluent standard is economically

reasonable and technically feasible. As noted, the Board did receive six non-substantive

comments from JCAR. The Board has incorporated the suggested changes into the adopted

proposal.

SUMMARY OF THE ADOPTED PROPOSAL

The adopted proposal sets forth a phosphorus effluent limit of 1.0 milligram per liter

(mg/L) as a monthly average that would apply to new or expanded discharges from treatment

works with a design average flow (DAF) over 1.0 million gallons per day receiving municipal or

domestic wastewater, or a total phosphorus effluent load of 25 lbs/day or more for treatment

works other than those treating municipal or domestic wastewater. However, if the source can

demonstrate that phosphorus is not limiting nutrient in the receiving water or that alternative

phosphorus effluent limits are warranted by the aquatic environment in the receiving water, the

1.0 mg/L limit would not apply.

Today’s proposal differs in only one substantive manner than the proposal as set forth in

its entirety in the Board’s first-notice opinion and order – the addition of proposed language to

ensure that the averaging rule exemption is available to permits issued under Section 304.104(g)

as well as 304.104(b). This change was supported by IAWA, the EPLC and the Agency in post

first-notice filings.

In response to testimony and questions at hearing, the Agency offered several changes to

the original proposal in its post-hearing comments prior to first notice. In the first-notice opinion

and order, the Board found that the changes to the proposal did not change the scope of the

originally proposed language. The proposal that was published in the

Illinois Register

accepted

the Agency’s changes along with some clarifying changes drafted by Board.

Changes of note that were made in the Board’s first-notice opinion and order include: (1)

the addition of language in subsections (g)(1) and (g)(2) to clarify that treatment works receiving

primarily municipal or domestic wastewater are not covered by subsections (b) through (f) of the

proposal; (2) language in subsection (h) that provides that dischargers otherwise subject to the

requirement in (g) may choose to demonstrate that the treatment works in question is not causing

the phosphorus issues in the receiving waters, and therefore should not be subject to a monthly

average permit limit for total phosphorus of 1.0 mg/L; (3) a sentence allowing the Agency to

consider site-specific information in deciding whether alternative phosphorus effluent limits are

appropriate; (4) a change in the renumbered subsection (i) that provides that dischargers that

comply with the requirements of (g) or (h) are not subject to additional phosphorus limitations

that may be otherwise required by 35 Ill. Adm. Code 304.105 and 302.203; and (5) a new clause

in the renumbered subsection (j) that the new water quality standards are not effective until

approved by the United States Environmental Protection Agency (USEPA). Interim Phosphorus

Effluent Standard, Proposed 35 Ill. Adm. Code 304.123(g-k), R04-26 slip op. at 20 (Apr. 7,

2005).

In addition, the Board defined what constitutes as a “new” or “expanded” discharge from

treatment works at subsection (g)(3). A “new” discharge is defined as a discharge from

treatment works constructed after the effective date of the proposed regulations, and an

“expanded” discharge is defined as a discharge from an existing treatment works that would be

greater than the flow rates permitted prior to the effective date of the proposed amendments. The

Board deleted subsection (i) of the Agency’s proposal. Interim Phosphorus Effluent Standard,

Proposed 35 Ill. Adm. Code 304.123(g-k), R04-26 slip op. at 20. (Apr. 7, 2005).

The Board has made additional non-substantive changes to the rule as suggested by

JCAR, but will not summarize or delineate the entirety of the rule or the changes made by the

Board. The Board’s order reflects the Board’s changes.

CONCLUSION

Based on the record before it, the Board finds that adoption of the Agency’s proposal is

warranted.

ORDER

The Board directs the Clerk to file the following adopted rule with the Secretary of State

for publication in the

Illinois Register

for final notice and adoption in the

Illinois Administrative

Code

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE C: WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 304

EFFLUENT STANDARDS

SUBPART A: GENERAL EFFLUENT STANDARDS

Section

304.101 Preamble

304.102 Dilution

304.103 Background Concentrations

304.104 Averaging

304.105 Violation of Water Quality Standards

304.106 Offensive Discharges

304.120 Deoxygenating Wastes

304.121 Bacteria

304.122 Total Ammonia Nitrogen (as N: STORET number 00610)

304.123 Phosphorus (STORET number 00665)

304.124 Additional Contaminants

304.125 pH

304.126 Mercury

304.140 Delays in Upgrading (Repealed)

304.141 NPDES Effluent Standards

304.142 New Source Performance Standards (Repealed)

SUBPART B: SITE SPECIFIC RULES AND EXCEPTIONS NOT OF GENERAL

APPLICABILITY

Section

304.201 Wastewater Treatment Plant Discharges of the Metropolitan Water

Reclamation District of Greater Chicago

304.202 Chlor-alkali Mercury Discharges in St. Clair County

304.203 Copper Discharges by Olin Corporation

304.204 Schoenberger Creek: Groundwater Discharges

304.205 John Deere Foundry Discharges

304.206 Alton Water Company Treatment Plant Discharges

304.207 Galesburg Sanitary District Deoxygenating Wastes Discharges

304.208 City of Lockport Treatment Plant Discharges

304.209 Wood River Station Total Suspended Solids Discharges

304.210 Alton Wastewater Treatment Plant Discharges

304.211 Discharges From Borden Chemicals and Plastics Operating Limited

Partnership Into an Unnamed Tributary of Long Point Slough

304.212 Sanitary District of Decatur Discharges

304.213 PDV Midwest Refining, L.L.C. Refinery Ammonia Discharge

304.214 Mobil Oil Refinery Ammonia Discharge

304.215 City of Tuscola Wastewater Treatment Facility Discharges

304.216 Newton Station Suspended Solids Discharges

304.218 City of Pana Phosphorus Discharge

304.219 North Shore Sanitary District Phosphorus Discharges

304.220 East St. Louis Treatment Facility, Illinois-American Water Company

304.221 Ringwood Drive Manufacturing Facility in McHenry County

304.222 Intermittent Discharge of TRC

SUBPART C: TEMPORARY EFFLUENT STANDARDS

Section

304.301 Exception for Ammonia Nitrogen Water Quality Violations (Repealed)

304.302 City of Joliet East Side Wastewater Treatment Plant

304.303 Amerock Corporation, Rockford Facility

Appendix A References to Previous Rules

AUTHORITY: Implementing Section 13 and authorized by Section 27 of the Environmental

Protection Act [415 ILCS 5/13 and 27].

SOURCE: Filed with the Secretary of State January 1, 1978; amended at 2 Ill. Reg. 30, p. 343,

effective July 27, 1978; amended at 2 Ill. Reg. 44, p. 151, effective November 2, 1978; amended

at 3 Ill. Reg. 20, p. 95, effective May 17, 1979; amended at 3 Ill. Reg. 25, p. 190, effective June

21, 1979; amended at 4 Ill. Reg. 20, p. 53, effective May 7, 1980; amended at 6 Ill. Reg. 563,

effective December 24, 1981; codified at 6 Ill. Reg. 7818; amended at 6 Ill. Reg. 11161, effective

September 7, 1982; amended at 6 Ill. Reg. 13750, effective October 26, 1982; amended at 7 Ill.

Reg. 3020, effective March 4, 1983; amended at 7 Ill. Reg. 8111, effective June 23, 1983;

amended at 7 Ill. Reg. 14515, effective October 14, 1983; amended at 7 Ill. Reg. 14910, effective

November 14, 1983; amended at 8 Ill. Reg. 1600, effective January 18, 1984; amended at 8 Ill.

Reg. 3687, effective March 14, 1984; amended at 8 Ill. Reg. 8237, effective June 8, 1984;

amended at 9 Ill. Reg. 1379, effective January 21, 1985; amended at 9 Ill. Reg. 4510, effective

March 22, 1985; peremptory amendment at 10 Ill. Reg. 456, effective December 23, 1985;

amended at 11 Ill. Reg. 3117, effective January 28, 1987; amended in R84-13 at 11 Ill. Reg.

7291, effective April 3, 1987; amended in R86-17(A) at 11 Ill. Reg. 14748, effective August 24,

1987; amended in R84-16 at 12 Ill. Reg. 2445, effective January 15, 1988; amended in R83-23 at

12 Ill. Reg. 8658, effective May 10, 1988; amended in R87-27 at 12 Ill. Reg. 9905, effective

May 27, 1988; amended in R82-7 at 12 Ill. Reg. 10712, effective June 9, 1988; amended in R85-

29 at 12 Ill. Reg. 12064, effective July 12, 1988; amended in R87-22 at 12 Ill. Reg. 13966,

effective August 23, 1988; amended in R86-3 at 12 Ill. Reg. 20126, effective November 16,

1988; amended in R84-20 at 13 Ill. Reg. 851, effective January 9, 1989; amended in R85-11 at

13 Ill. Reg. 2060, effective February 6, 1989; amended in R88-1 at 13 Ill. Reg. 5976, effective

April 18, 1989; amended in R86-17(B) at 13 Ill. Reg. 7754, effective May 4, 1989; amended in

R88-22 at 13 Ill. Reg. 8880, effective May 26, 1989; amended in R87-6 at 14 Ill. Reg. 6777,

effective April 24, 1990; amended in R87-36 at 14 Ill. Reg. 9437, effective May 31, 1990;

amended in R88-21(B) at 14 Ill. Reg. 12538, effective July 18, 1990; amended in R84-44 at 14

Ill. Reg. 20719, effective December 11, 1990; amended in R86-14 at 15 Ill. Reg. 241, effective

December 18, 1990; amended in R93-8 at 18 Ill. Reg. 267, effective December 23, 1993;

amended in R87-33 at 18 Ill. Reg. 11574, effective July 7, 1994; amended in R95-14 at 20 Ill.

Reg. 3528, effective February 8, 1996; amended in R94-1(B) at 21 Ill. Reg. 364, effective

December 23, 1996; expedited correction in R94-1(B) at 21 Ill. Reg. 6269, effective December

23, 1996; amended in R97-25 at 22 Ill. Reg. 1351, effective December 24, 1997; amended in

R97-28 at 23 Ill. Reg. 3512, effective February 3, 1998; amended in R98-14 at 23 Ill. Reg.687,

effective December 31, 1998; amended in R02-19 at 26 Ill. Reg. 16948, effective November 8,

2002; amended in R02-11 at 27 Ill. Reg. 194, effective December 20, 2002; amended in R04-26

at 30 Ill. Reg. _______________, effective ________________.

SUBPART A: GENERAL EFFLUENT STANDARDS

Section 304.123 Phosphorus (STORET number 00665)

a) No effluent discharge within the Lake Michigan Basin shall contain more than 1.0

mg/

of phosphorus as P.

b) No effluent from any source which discharges to a lake or reservoir with a surface

area of 8.1 hectares (20 acres) or more, or to any tributary of such a lake or

reservoir whose untreated waste load is 2500 or more population equivalents, and

which does not utilize a third-stage lagoon treatment system as specified in

subsections 304.120(a) and (c), shall exceed 1.0 mg/

of phosphorus as P;

however, this subsection shall not apply where the lake or reservoir, including any

side channel reservoir or other portion thereof, on an annual basis exhibits a mean

hydraulic retention time of 0.05 years (18 days) or less.

c) Pursuant to Section 28.1 of the Environmental Protection Act (Act) [415 ILCS

5/28.1], the owner or operator of any source subject to subsection (b) of this

Section may apply for an adjusted standard. In addition to the proofs specified in

Section 28.1(c) of the Act 415 ILCS 5/28.1(c), such application shall, at a

minimum, contain adequate proof that the effluent resulting from grant of the

adjusted standard will not contribute to cultural eutrophication, unnatural plant or

algal growth or dissolved oxygen deficiencies in the receiving lake or reservoir.

For purposes of this subsection (c), such effluent shall be deemed to contribute to

such conditions if phosphorus is the limiting nutrient for biological growth in the

lake or reservoir, taking into account the lake or reservoir limnology,

morphological, physical and chemical characteristics, and sediment transport.

However, if the effluent discharge enters a tributary at least 40.25 kilometers (25

miles) upstream of the point at which the tributary enters the lake or reservoir at

normal pool level, such effluent shall not be deemed to contribute to such

conditions if the receiving lake or reservoir is eutrophic and phosphorus from

internal regeneration is not a limiting nutrient.

d) For the purposes of this Section the term "lake or reservoir" shall not include low

level pools constructed in free flowing streams or any body of water which is an

integral part of an operation which includes the application of sludge on land.

e) Compliance with the limitations of subsection (b) of this Section shall be achieved

by the following dates:

1) Sources with the present capability to comply shall do so on the effective

date of this Section;

2) All other sources shall comply as required by NPDES permit.

f) For purposes of this Section, the following terms shall have the meanings

specified:

1) "Dissolved oxygen deficiencies" means the occurrence of a violation of

the dissolved oxygen standard applicable to a lake or reservoir.

(BOARD NOTE: Dissolved Oxygen standards for general use waters are

set forth at 35 Ill. Adm. Code 302.206; Dissolved Oxygen standards for

secondary contact or indigenous aquatic life waters are set forth at 35 Ill.

Adm. Code 302.405.)

2) "Euphotic zone" means that region of a lake or reservoir extending from

the water surface to a depth at which 99% of the surface light has

disappeared or such lesser depth below which photosynthesis does not

occur.

3) "Eutrophic" means a condition of a lake or reservoir in which there is an

abundant supply of nutrients, including phosphorus, accounting for a high

concentration of biomass.

4) "Eutrophication" means the process of increasing or accumulating plant

nutrients in the water of a lake or reservoir. Cultural eutrophication is

eutrophication attributable to human activities.

5) "Internal regeneration" means the process of conversion of phosphorus or

other nutrients in sediments of a lake or reservoir from the particulate to

the dissolved form and the subsequent return of such dissolved forms to

the euphotic zone.

6) "Limiting nutrient" means a substance which is limiting to biological

growth in a lake or reservoir due to its short supply or unavailability with

respect to other substances necessary for the growth of organisms.

7) "Unnatural plant or algal growth" means the occurrence of a violation of

the unnatural sludge standard applicable to a lake or reservoir with respect

to such growth.

(BOARD NOTE: Unnatural sludge standards for general use waters are

set forth at 35 Ill. Adm. Code 302.203; unnatural sludge standards for

secondary and indigenous aquatic life waters are set forth at 35 Ill. Adm.

Code 302.403.)

g) Except as provided in subsection (h) of this Section, any new or expanded

discharges into General Use waters from the following treatment works not

covered by subsections (b) through (f) of this Section, are subject to monthly

average permit limits for total phosphorus of 1 mg/

1) Treatment works with a Design Average Flow of 1.0 million gallons per

day or more receiving primarily municipal or domestic wastewater; or

2) Any treatment works, other than those treating primarily municipal or

domestic wastewater, with a total phosphorus effluent load of 25 pounds

per day or more.

3) For purposes of this subsection:

A) A new discharge means a discharge from a treatment works

constructed after December 15, 2005.

B) An expanded discharge means a discharge from any existing

treatment works that would be greater than the flowrates permitted

prior to December 15, 2005.

h) Discharges qualifying under subsections (g)(1) and (g)(2) of this Section may not

be subject to the requirements of subsection (g) of this Section provided the

discharger demonstrate that phosphorus from treatment works is not the limiting

nutrient in the receiving water. The Agency may impose alternative phosphorus

effluent limits where the supporting information shows that alternative limits are

warranted by the aquatic environment in the receiving stream.

i) No additional phosphorus limitations are required pursuant to Sections 304.105

and 35 Ill. Adm. Code 302.203 for the discharges that comply with the

requirements of subsection (g) or (h) of this Section.

j) The provisions of subsections (g), (h), and (i) of this Section apply until such time

as the Board adopts a numeric water quality standard for phosphorus and the

adopted standard is approved by the U.S. EPA.

k) The averaging rules under subsections (a)(2) and (a)(3) of Section 304.104

do not apply to permit limits established pursuant to subsection (g) or (h)

of this Section.

(Source: Amended at 30 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 January 19, 2006, by a vote of 4-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board