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ILLINOIS POLLUTION CONTROL BOARD

January 19, 2006

Adopted Rule. Final Notice.

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

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. Id. The Agency requests that the interim effluent standard apply until the Board adopts a numeric water quality standard for phosphorus.

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.

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, w hile 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.

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).

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CONCLUSION

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

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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

SUBPART B: SITE SPECIFIC RULES AND EXCEPTIONS NOT OF GENERAL APPLICABILITY

Section

SUBPART C: TEMPORARY EFFLUENT STANDARDS

Section

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)

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.

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

(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.)

(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.)

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.

(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

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