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ILLINOIS POLLUTION CONTROL BOARD
August 6, 2007
IN THE MATTER OF:
PROPOSED EXTENSION OF ADJUSTED
STANDARD APPLICABLE TO ILLINOIS-
AMERICAN WATER COMPANY’S ALTON
PUBLIC WATER SUPPLY FACILITY
DISCHARGE TO THE MISSISSIPPI RIVER
UNDER 35 ILL. ADM. CODE 304.124 AND
304.106
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AS 07-2
(Adjusted Standard)
HEARING OFFICER ORDER
The parties are strongly encouraged to pre-file as much testimony as possible by
August 21, 2007, including written answers to these questions. This will enable the
Board to follow-up with any remaining concerns at hearing. Additionally, to address the
possibility that the Board may not decide this matter by October 4, 2007, petitioner may
argue for retroactive relief at hearing or in its post-hearing brief.
Questions for IAWC and IEPA
Pertaining to the Amended Petition AS 2007-2
To be addressed in Pre-Filed Testimony and/or at Hearing on August 28, 2007
(Docket AS 2007-2)
Both parties are invited to address any of the questions posed, whether specifically
addressed to that party or not.
Illinois-American Water Company (IAWC)
1.
Quantifying and Verifying Sediment Reductions
USEPA’s Water Quality Trading Policy states that “mechanisms for determining
and ensuring compliance are essential for all trades and trading programs… States
and tribes should establish clear, enforceable mechanisms consistent with NPDES
regulations that ensure legal accountability for the generation of (pollutant
reductions) that are traded.” USEPA (9-13-03) at 10.
USEPA’s Water Quality Trading Assessment Handbook states, “In pilot projects,
the relatively variable and unpredictable performance of nonpoint source BMPs
[Best Management Practices] has been handled by discounting the estimated
reductions available for trade. The uncertainty discount is intended to ensure that
errors in BMP performance estimates will not jeopardize the water quality
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equivalence of trades involving these pollutant control actions.” USEPA (11-04),
EPA 841-B-04-001, at 40. The handbook provides an example using an
uncertainty discount of 50%, where the nonpoint source must produce 2 pounds
of pollutant reductions for every 1 pound it wishes to sell. USEPA (11-04), EPA
841-B-04-001, at 40-41.
In AS 99-6, IAWC explained, “The rate of erosion will be calculated by placing
stakes (or other types of monuments) along the stream bank and measuring the
rate [of] erosion for one year prior to installation of erosion controls.” Board
O&O, 9-7-00 at 15. “During the ten year span of the project, GRLT will submit
quarterly reports to the Agency which detail the progress of the monitoring and
other project-related activities.” (Board O&O, 9-7-00 at 15.)
QUESTIONS:
a. How does IAWC account for sediment reductions in its reporting to IEPA?
b. Does IAWC rely entirely on the GRLT quarterly reports to the Agency to
quantify and verify its sediment reductions for compliance?
c. When IAWC states it will maintain a soil savings with a 2 to 1 offset or above
6,600 tons per year (Am. Pet. at 32), does IAWC consider the 2 to 1 ratio as
the uncertainty discount? Or is the 2 to 1 ratio intended to produce a greater
environmental benefit than compliance with the effluent regulations alone?
d. If the 2 to 1 ratio is intended to produce a greater environmental benefit,
would IAWC please propose an uncertainty discount based on USEPA’s
Water Quality Trading Assessment Handbook (November 2004).
e. Since IAWC is currently seeing a 4.2 to 1 offset ratio for sediment and 3.8 to
1 offset ratio for iron (Am. Pet. at 3), would IAWC consider proposing a ratio
higher than 2 to 1 to account for the uncertainty discount and to create an
additional environmental benefit?
f. Since USEPA’s Water Quality Trading Policy stresses the need for clear and
enforceable mechanisms to ensure compliance and accountability for the
generation of pollutant reductions that are traded, can IAWC propose such
mechanisms for inclusion in the wording of its adjusted standard?
2.
Potential New Agreement between IAWC and GRLT
IAWC discusses the terms of the 10-year Consulting and Performance Agreement
between IAWC and Great Rivers Land Trust (GRLT). After the expiration of the
10-year agreement, IAWC indicates it will continue to provide funding to
maintain soil savings above 6600 tons per year, but expects the soil savings it has
invested in for the Piasa Creek Watershed Project “to reach a point at which it
will be sustainable without future funding from outside sources.” Am. Pet. at 32.
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IAWC references a potential new contract with GRLT for maintenance only. Am.
Pet. at 32.
USEPA’s Water Quality Trading Policy states, “Where trading involves nonpoint
sources, states and tribes should adopt methods to account for the greater
uncertainty in estimates of nonpoint source loads and reductions.” USEPA
supports a number of approaches including, “retiring a percentage of nonpoint
source reductions for each transaction or a predetermined number of credits.”
USEPA (1-1-3-03 at 9.)
QUESTIONS:
a. For a stream bank that has been stabilized where sediment reductions are not
active but passive, is there a point at which that particular project could be retired
in terms of accounting for sediment reductions?
b. When a sediment reduction project is mature and self-sustaining and no longer
benefits from continued maintenance and monitoring, is it time to initiate an
active sediment reduction project to generate a tradable commodity?
c. Should IAWC’s adjusted standard contain provisions to maintain the necessary
offset by continuing to fund sediment reduction projects beyond those that have
already reached maturity? Does IAWC believe this approach would be
consistent with funding long term maintenance of a traditional effluent control
facility, albeit more financially and environmentally beneficial?
d. Did IAWC consult with GRLT or the Illinois State Water Survey (which works
with the Agency on sediment control projects such as the Lake Pittsfield
watershed project—Board O&O, 9-7-00 at 16) to provide insight into this?
3.
Funding for the Sediment Reductions and Maintenance
The previous AS 99-6 bound Illinois-American to a dollar amount of $4,150,000
payable over ten years. The AS 07-2 petition specifies only a performance goal
of a 2 to 1 offset, or a minimum of 6600 tons of soil per year. The cost of
complying with the AS 07-2 is not specified or estimated.
QUESTIONS:
a. Were there other aspects of the Piasa Creek Watershed Project that benefited
from IAWC’s funding besides the direct soil savings, such as educational
outreach or habitat restoration?
b. In terms of other aspects besides soil savings, how would the Project as a
whole be impacted by committing solely to a performance goal of 2:1 or 6600
tpy rather than a dollar amount?
c. Does Illinois-American have an estimate for yearly costs and time associated
with a maintenance contract?
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d. How would those costs change over the years as the project reaches the point
of sustainability without future funding from “outside sources”?
e. In referring to a future without funding by “outside sources”, is IAWC aware
of funding that might come from other than outside sources?
4.
Rulemaking Update
“In the 1980s, the Alton Water Company (the predecessor to IAWC in Alton)
applied to the Board for relief from the effluent standards at 35 Ill. Adm. Code
304.104.” Board O&O, September 7, 2000 at 4.
QUESTION:
The Board engages in ongoing review of 35 Ill. Adm. Code Part 304 and all of its
rules to determine whether they are still necessary or accurate. For the sake of
any needed cleaning up of 35 IAC Part 304 in a future rulemaking, please
comment on whether Section 304.206 Alton Water Company Treatment Plant
Discharges is still needed?
Section 304.206 Alton Water Company Treatment Plant
Discharges
This Section applies to the existing 18.3 million gallons per day
potable drinking water treatment plant owned by the Alton Water
Company which is located at, and discharges into, river mile 204.4
on the Mississippi River. Such discharges shall not be subject to
the effluent standards for total suspended solids and total iron of 35
Ill. Adm. Code 304.124.
(Source: Added at 8 Ill. Reg. 3687, effective March 14, 1984)
Illinois Environmental Protection Agency (IEPA)
1.
The Agency Recommendation states,
“In making its decision, the Board should also consider the
USEPA’s efforts to develop categorical effluent limits for water
supply treatment plant effluents in federal regulations...Adoption
of federal categorical effluent limits would supersede any limits
previously adopted by states unless the state limits were more
stringent. Federal action would therefore negate any continued
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relief granted by the Board regarding Illinois American’s petition
for extended relief.” Ag. Rec. at 11.
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Under 40 CFR Subchapter N: Effluent Guidelines and Standards, Parts 402-699
“prescribe effluent limitations guidelines for existing sources, standards of
performance for new sources and pretreatment standards for new and existing
sources...” 40 CFR 401.10.
40 CFR 403.1
(b)
This regulation applies:
(4)
To any new or existing source subject to
Pretreatment Standards. National Pretreatment
Standards do not apply to sources which discharge
to a sewer which is not connected to a POTW
Treatment Plant.
QUESTIONS:
a. Since IAWC is not discharging to a POTW, the 40 CFR Subchapter N:
Effluent Guidelines and Standards appear not to apply. Does the Agency
agree? Is the Agency Recommendation referring to other federal
categorical effluent limits?
b. The Agency Recommendation also states, “Up-to-date information on
[USEPA’s efforts to develop categorical effluent limits for water supply
treatment plant effluents] was obtained from Mr. Tom Bone of USEPA’s
Office of Science and Technology...” Ag. Rec. at 11. In the Agency’s
contact with Mr. Bone, did he indicate that USEPA would be developing
categorical effluent limits for sources which do not discharge to a POTW?
c. Did Mr. Bone indicate for which pollutants USEPA would be setting
effluent limitations guidelines for water supply treatment plants? Did they
include TSS and iron?
2.
Illinois Water Quality Trading Policy
QUESTIONS:
a. Is IEPA considering water quality trading as an option for point source
discharges in waterways with TMDLs, such as the East Branch of the
DuPage River and Salt Creek? If so, please describe.
b. Is the Agency aware of any other dischargers in Illinois that use or plan to
use water quality trading? If so, please describe?
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The Agency Recommendation dated 6-18-07 will be cited as Ag. Rec.
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c. Did IEPA consult with the Illinois State Water Survey (which works with
the Agency on sediment control projects such as the Lake Pittsfield
watershed project—Board O&O, 9-7-00 at 16) to provide insight into the
prospect of trading and retiring credits for nonpoint source projects that
have matured?
3.
USEPA Water Quality Trading Policy
The Agency Recommendation states,
“In the intervening years since relief was granted, concepts of
pollutant trading and the importance of providing reasonable
treatment have been refined at the federal level. The Agency thus
believes that the requested relief is no [longer] consistent with
applicable federal law.” Ag. Rec. at 15.
The Agency’s Recommendation quotes information from the USEPA’s
“Frequently Asked Questions about Water Quality Trading.”
“When can trading occur?... the Trading Policy does not allow
trading to meet a technology-based effluent limit (TBEL).” Ag.
Rec. at 10.
http://www.epa.gov/owow/watershed/trading/tradingfaq.html
Although IEPA states trading has been refined at the federal level, this particular
issue of the USEPA’s policy appears to be consistent with USEPA’s previous
1996 “Effluent Trading in Watersheds Policy Statement”.
“To take advantage of trading, a point source must be in
compliance, and remain in compliance, with applicable
technology-based limits.” 61 Fed. Reg. 4995, February 9, 1996.
The issue is similarly reiterated in the “Water Quality Trading Assessment
Handbook: Can Water Quality Trading Advance Your Watershed’s Goals?”,
November 2004 EPA 841-B-04-001:
“Under the Clean Water Act, point sources are required to comply
with their technology-based limits without trading unless trading is
explicitly incorporated in the effluent guidelines.” USEPA (11-04)
at App. D-104.
In this regard, the Handbook refers specifically to requirements under the
Clean Water Act. The Clean Water Act itself only refers to the federal
technology-based limits. Currently, there appear to be no federal effluent
guidelines or TBEL for iron or TSS from water supply treatment plant
effluents not discharged to a POTW.
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QUESTION:
Are there federal effluent guidelines or TBEL for TSS and iron discharges
not to a POTW that would apply to IAWC?
4.
USEPA Oversight
AS 99-6 was incorporated into the NPDES Permit, which is subject to federal
purview. USEPA’s Water Quality Trading Policy (9-13-03) states,
“[US]EPA has various oversight responsibilities under the CWA,
including...review of NPDES permits and provisions for reviewing
and making recommendations regarding revisions to a state’s or
tribe’s water quality management plans through the continuing
planning process. ...However, where questions or concerns arise,
EPA will use its oversight authorities to ensure that trades and
trading programs are fully consistent with the CWA and its
implementing regulations.” USEPA (9-13-03) at 11.
So far the record reveals no indication from USEPA that the approach under AS
99-6 that was included in IAWC’s NPDES Permit - lL0000299 is inconsistent
with the CWA or its implementing regulations.
In USEPA’s Office of Water, Water Quality Trading Policy, January 13, 2003 on
p. 11, it states, “States and tribes are encouraged to consult with [US]EPA
throughout development of trading programs to facilitate alignment with the
CWA.”
QUESTIONS:
a. Other than discussions with Mr. Bone about possible federal effluent
limitation guidelines, did the Agency consult with USEPA specifically about
IAWC’s adjusted standard petition for cooperation with the Piasa Creek
Watershed Project? If so, would you please describe.
b. Is IEPA aware of any feedback from USEPA regarding IAWC’s NPDES
Permit and the provisions for AS 99-6? If so, please describe.
5.
Report on performance of Piasa Creek Watershed Project:
In AS 99-6, the Board’s Opinion and Order read,
“During the ten year span of the project, GRLT will submit
quarterly reports to the Agency which detail the progress of the
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monitoring and other project-related activities...GRLT staff will
also meet periodically with Agency staff to discuss the progress of
the GRLT Project.” (Board O&O, 9-7-00 at 15.)
“Five years into the GRLT Project (the halfway point), the Agency
will make a determination of effectiveness...In addition to the fifth
year review, the Agency will continue to be involved in the site
selection process for the various aspects of the project, help review
and implement management practices, analyzed quarterly reports
submitted by GRLT, and meet periodically with GRLT staff.”
Board O&O, 9-7-00 at 16.
The Agency’s Recommendation did not mention making a determination of
effectiveness of the GRLT Project or a synopsis of its involvement as described
above.
QUESTIONS:
a. Please provide a copy of an Agency’s determination of
effectiveness and a summary of the Agency’s involvement in the
GRLT for the record here.
b. How has the Agency assessed compliance with AS 99-6 thus far in
terms of tracking the generation of sediment savings in Piasa Creek
and comparing it to the load from the Alton Plant?
The parties are reminded to participate in a telephone status conference with the
hearing officer at 10:30 a.m. on August 13, 2007. The status conference shall be initiated
by the petitioner.
IT IS SO ORDERED.
_____________________
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, Illinois 62794-9274
217/524-8509
webbc@ipcb.state.il.us
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CERTIFICATE OF SERVICE
It is hereby certified that true copies of the foregoing order were mailed, first class
on August 6, 2007, to each of the persons on the attached service list.
It is hereby certified that a true copy of the foregoing order was hand delivered to
the following on August 6, 2007:
John T. Therriault
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Ste. 11-500
Chicago, Illinois 60601
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, Illinois 62794-9274
217/524-8509
webbc@ipcb.state.il.us
AS 2007-002
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
AS 2007-002
Thomas Andryk
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
AS 2007-002
Alison M. Nelson
Blackwell Sanders Peper Martin LLP
720 Olive St., 24th Floor
St. Louis, MO 63101
AS 2007-002
Bradley S. Hiles
Blackwell Sanders Peper Martin LLP
720 Olive St., 24th Floor
St. Louis, MO 63101
