ILLINOIS POLLUTION CONTROL BOARD

September 20, 2007

IN THE MATTER OF:

TRIENNIAL REVIEW OF SULFATE AND

TOTAL DISSOLVED SOLIDS WATER

QUALITY STANDARDS: PROPOSED

AMENDMENTS TO 35 ILL. ADM. CODE

302.102(b)(6), 302.102(b)(8), 302.102(b)(10),

302.208(g), 309.103(c)(3), 405.109(b)(2)(A),

409.109(b)(2)(B), 406.100(d); REPEALER OF

35 ILL. ADM. CODE 406.203, 406.209, and

PART 407; and PROPOSED NEW 35 ILL.

ADM. CODE 302.208(h)

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R07-9

(Rulemaking - Water)

Proposed Rule. First Notice.

OPINION AND ORDER OF THE BOARD (by G.T. Girard):

The Illinois Environmental Protection Agency (Agency) proposed rules to update

existing general use water quality standards for sulfate and total dissolved solids (TDS) by

amending 35 Ill. Adm. Code Parts 302, 309, 405, 406, and 407 of the Board’s water and mine-

related pollution rules. The Board has held two hearings and accepted comments on the

proposal. Today the Board adopts a first-notice proposal. The Board is proposing the rule as

proposed by the Agency with certain specific changes delineated in the opinion below. Those

changes include in the rules on mixing zones language reflecting current Agency practice that

allows mixing in up to 50% of the stream flow when dilution is less than 3:1.

The Board’s opinion opens with a procedural background and follows with a summary of

the Agency’s proposal. Next the Board summarizes the testimony and comments in the record.

Finally, the Board will discuss the issues raised and the rule adopted for first notice.

PROCEDURAL BACKGROUND

On October 23, 2006, the Agency filed a proposal under the general rulemaking

provisions of Section 27 of the Environmental Protection Act (Act) (415 ILCS 5/27 (2006)). The

proposal included a 15-page statement of reasons (Reasons) and a bound 3-inch thick collection

of supporting facts and exhibits. On November 16, 2006, the Board accepted the rulemaking for

hearing.

On November 27, 2006, in accordance with Section 27(b) of the Act (415 ILCS 5/27

(2006)), the Board requested that the Department of Commerce and Economic Opportunity

(DCEO) conduct an economic impact study for this rulemaking. To date the Board has not

received a response from DCEO.

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2

The Board held two hearings in this proceeding before Hearing Officer Marie Tipsord.

The first hearing was held on March 7, 2007, in Springfield (Tr.1) and the second on April 23,

2007, in Chicago (Tr.2). At those hearings the Board heard testimony from:

Robert Mosher, Brian Koch and Toby Frevert on behalf of the Agency;

James Huff and Brigitte Postel on behalf of CITGO Petroleum Corporation (CITGO);

Glynnis Collins on behalf of Prairie Rivers Network, Sierra Club and the Environmental

Law and Policy Center (collectively Environmental Groups);

Phil Gonet on behalf of the Illinois Coal Association (ICA);

Jim Boswell on behalf of the ICA.

At the close of hearings a June 7, 2007 deadline for public comments to be filed was set.

The Board received a total of eight public comments from the following:

Illinois Environmental Protection Agency (PC2, PC4);

Illinois Coal Association (PC1, PC3);

Illinois Association of Wastewater Agencies Water Quality Subcommittee (IAWA)

(PC5);

CITGO Petroleum Corporation (PC6)

Illinois Environmental Regulatory Group (IERG) (PC7);

Prairie Rivers Network, Sierra Club and the Environmental Law and Policy Center

(PC8).

PROPOSAL

The following discussion will summarize the Agency’s proposal and statement of

reasons. First, the Board will summarize the background of the proposal and then discuss each

of the Agency’s proposed changes in more detail. Next, the Board will summarize the Agency’s

position in the statement of reasons on the economic reasonableness and technical feasibility of

the rule.

Background

The Agency states that the proposal fulfills the requirements of the Federal Water

Pollution Control Act, 33 U.S.C. § § 1251-1387, also known as the Clean Water Act (CWA).

Reasons at 7. States are required to revise and update water quality standards to ensure that

standards are protective of public health and welfare, enhance the quality of water and promote

the purposes of the CWA.

Id

., citing 33 U.S.C. §1313(c)(2)(A). This update is known as a

triennial water quality standards review.

Id

., citing 33 U.S.C. §1313(c)(1).

The Agency’s proposal is designed to refine the numeric water quality standard for

sulfate based on the best available scientific knowledge. Reasons at 7-8. In 1972, the Board

adopted water quality standards for sulfate and TDS to protect aquatic life and agricultural uses

without scientific studies to determine appropriate values. Reasons at 8, and

see

In the Matter of:

Water Quality Standards Revisions, R71-14 (Mar. 7, 1972). The adopted sulfate water quality

standard presented issues for coal mines because the effluents from coal mines are often high in

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3

sulfate. Reasons at 8. To address these issues, the Board adopted standards for sulfate and

chloride for mine discharges.

Id

. and

see

35 Ill. Adm. Code Subtitle D.

The Agency, in order to remedy the deficiency in the 1972 rulemaking and provide a

scientific justification for sulfate water quality standards, engaged in a multi-year project

researching the toxicity of sulfate to aquatic life and livestock. Reasons at 8. Based on the

conclusion of these studies, the Agency’s proposal seeks to:

1.

update the sulfate general use water quality standard to be protective of aquatic

life and livestock watering uses;

2.

repeal the TDS general use water quality standard;

3.

amend the mixing regulations at 35 Ill. Adm. Code 302.102 to allow mixing in

7Q1.1 zero flow streams

1

to dischargers that can demonstrate attainment of water

quality standards when the discharge occurs; and

4.

delete portions of the existing mine waste rules at 35 Ill. Adm. Code Subtitle D to

ensure that sulfate limits in mine National Pollutant Discharge Elimination

System (NPDES) permits are based on the general use water quality standards of

Subpart C. Reasons at 8-9.

Sulfate Water Quality Standard

The proposed change to the sulfate water quality standard is based on extensive research

and review of existing data on sulfate aquatic toxicity. Reasons at 9. In addition, the Agency

commissioned new studies with “augmented sponsorship from the USEPA [Unites States

Environmental Protection Agency (USEPA)] and the Illinois Coal Association.”

Id

. The new

research into sulfate toxicity found that high sulfate concentrations pose the problem of osmotic

(salt) imbalance for aquatic organisms.

Id

. The Agency states that many organisms, such as all

the fish tested and some invertebrates, are very tolerant of sulfate while other species, including

water fleas (

Daphnis

and

Ceriodaphnia

) and scud (

Hyalella

), are less tolerant of high sulfate

conditions.

Id

. Further, sulfate has been demonstrated to affect only the short-term survival of

organisms unlike many toxicants that exert toxic effects over both the short and long term.

Id

.

The new research also found that chloride and hardness can impact the osmotic imbalance

leading to sulfate toxicity.

Id

.

Dr. David Soucek of the Illinois Natural History Survey (Survey) performed the research

and as a result developed equations to determine non-toxic amounts of sulfate. Reasons at 10.

Dr. Soucek considered various concentrations of hardness and chloride in a water body to

calculate levels of sulfate that would be non-toxic.

Id

. The Agency proposal will allow for

1

Streams that have zero flow for at least seven consecutive days recurring on average in nine

years out of ten.

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4

various sulfate concentrations ranging from 500 milligrams per liter (mg/L) in soft waters with

low chloride levels to over 2,500 mg/L in hard waters of average chloride concentrations.

Id

.

The Agency determined that an update of the water quality standard for waters used for

watering livestock was necessary for protection of livestock. Reasons at 10. The Agency

performed an extensive literature review and found that livestock are capable of withstanding

sulfate concentrations that are on average higher than the proposed aquatic life standards.

Id

.

The Agency further found that hardness and chloride concentrations are irrelevant to sulfate

impacts on livestock and that extended exposure to drinking waters high in sulfates may lead to

weight loss, disease, and death of livestock.

Id

. Based on this, the Agency determined that a

chronic standard for sulfate in livestock drinking water was necessary.

Id

. The Agency is

proposing a chronic sulfate standard of 2,000 mg/L where livestock watering is present.

Id

. The

Agency believes that this chronic standard will be protective of livestock.

Id

.

Total Dissolved Solids Standard

TDS is the sum of dissolved substances in water and TDS is dominated by the common

ions of sulfate, chloride, sodium, calcium, carbonate, and magnesium in various proportions.

Reasons at 11. The Agency is proposing the deletion of the general water quality standard for

TDS in this rulemaking. Reasons at 10-11. The Agency states that investigations into sulfate

toxicity indicate that the existing TDS standard is unnecessary. Reasons at 11. The standard is

unnecessary because the toxicity of each constituent in TDS is the significant factor in protecting

aquatic life rather than the total.

Id

. The Agency believes that with toxicity based standards

adopted for sulfate and chloride, the TDS standard is not needed, as TDS cannot predict the

threshold of adverse effects to aquatic life.

Id

.

Mixing Regulations

The Agency proposes an amendment to allow for mixing in 7Q1.1 zero flow streams

when adequate upstream dilution exists. Reasons at 11. The Agency claims this concept is

consistent with the Agency’s current practice in that the Agency has been allowing for wet

weather discharge to 7Q1.1 zero flow streams.

Id

. The Agency states that experience shows that

most mine discharges of high sulfate occur during wet weather events.

Id

. The Agency explains

that the best degree of treatment at mines is provided by collecting site drainage, which is high in

total suspended solids, into on-site ponds where settling occurs.

Id

. The treated water is then

discharged into water bodies when a significant amount of water from the un-mined watershed

enters the water bodies during the discharge, allowing for sufficient dilution to occur.

Id

.

Subtitle D Changes

The Agency is proposing to delete separate sulfate and chloride standards for mining

operations that are included in Subtitle D. Reasons at 11. The Agency proposes to require that

limits in mine permits be set using the Subtitle C water quality standards. Reasons at 12. The

Agency is also proposing to remove outdated portions of the Subtitle D rules.

Economic Reasonableness and Technical Feasibility

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5

The Agency states that the proposal contains science-based standards that for most

dischargers “will allow attainment of water quality standards without the implementation of

additional management practices or process alternatives.” Reasons at 13. The Agency believes

that a “significant majority of discharges” will meet the applicable permit limits with the help of

ongoing and routine control measures.

Id

.

The Agency judges that a small number of existing mines may need to employ additional

controls to meet water quality standard-based permit limits. Reasons at 13. However, the

Agency has been “proactive in getting information to these dischargers that will help achieve

compliance.”

Id.

The Agency believes that new mines will be able to design for sulfate control.

Reasons at 13-14.

The Agency anticipates that the new standards will eliminate virtually all petitions from

industrial and municipal dischargers for site-specific water quality standard relief concerning

sulfate and TDS. Reasons at 13. The Agency feels that this will result in extensive cost savings

not only for industry but also for the Agency and the Board, as they will no longer need to

expend resources on regulatory relief.

Id

.

SUMMARY OF TESTIMONY

The Board will first summarize the testimony of the Agency. Next the Board will

summarize the testimony of CITGO. The Board will then summarize ICA testimony. A

summary of the Environmental Groups testimony will follow.

Agency Testimony

As stated above, Mr. Bob Mosher, Manager of the Water Quality Standards Unit, and Mr.

Brian Koch, Toxicologist in the Water Quality Standards Unit, testified for the Agency. Mr.

Mosher’s testimony generally describes the Agency’s reasons for changing the standards, while

Mr. Koch’s testimony describes the procedures used to develop the proposed standards. Also,

Mr. Toby Frevert, Manager, Division of Water Pollution Control, responded to questions during

the first hearing. The following paragraphs will summarize their testimony in turn.

Bob Mosher

Mr. Mosher’s direct testimony addressed three specific areas. First, Mr. Mosher

discussed the general benefits the proposed changes in the standards will bring to water quality.

Tr.1 at 11. Second, Mr. Mosher discussed the deletion of the water quality standard for TDS.

Id

.

Third, Mr. Mosher explained the changes to the mixing zone standards. Tr.1 at 11-12. Mr.

Mosher also responded to questions during his testimony. The paragraphs below will summarize

his testimony in each of these areas.

Water Quality Standards.

According to Mr. Mosher, the general use water quality

standards for sulfate (500 mg/L) and TDS (1,000 mg/L) have existed in Illinois since 1972. Tr.1

at 12. The standards were adopted to protect aquatic life and agricultural uses though few

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6

modern studies were available to determine appropriate standards.

Id

. Mr. Mosher stated that

the adopted standards stemmed from the opinion of a few experts rather than documented

scientific experiments.

Id

. Mr. Mosher explained that a special standard was developed for mine

discharge because the effluent from mines was often high in sulfate.

Id

. The sulfate standard for

mines was set at 3,500 mg/L in 1984 (

see

35 Ill. Adm. Code Subtitle D) and was not documented

by the same type of aquatic life toxicity and livestock tolerance studies used in standards

development today.

Id

.

Mr. Mosher testified that under existing general use water quality standards, most mine

discharges could not be permitted absent the special rules in Subtitle D. Tr.1 at 12-13. Mr.

Mosher explained that many mines cannot meet the general use water quality standards for

sulfate and TDS at the point of discharge and many mines do not qualify for conventional

mixing. Tr.1 at 13. Mr. Mosher noted that other industries also have difficulty meeting the

general use water quality standards for sulfate and TDS and have received adjusted standards or

site-specific rules for discharges because sulfate and other constituents of TDS are not treatable

by any practical means.

Id

.

Mr. Mosher stated that a solution to the dilemma was to reevaluate the water quality

standards for sulfate and TDS that account for most of the permitting problems. Tr.1 at 13. Mr.

Mosher indicated that studies of aquatic life communities downstream of high sulfate, high TDS

discharges demonstrate that organisms incur no detrimental effect from concentrations of these

pollutants higher than the current water quality standards.

Id

. Mr. Mosher noted that no national

criteria exist for sulfate and TDS and few states even have water quality standards for these

pollutants. Mr. Mosher testified that a process was begun to gather existing information on

sulfate aquatic life toxicity; however, the data was inadequate to derive a standard.

Id

. The

Agency, along with USEPA and ICA, commissioned new studies.

Id

. At the same time

investigations into livestock tolerance for sulfate in drinking water were begun. Tr.1 at 13-14.

Mr. Mosher stated that the new research confirmed that high sulfate concentrations pose a

problem of osmotic or salt balance for some organisms. Tr.1 at 14. Mr. Mosher indicated that

many organisms including all species of fish tested and many invertebrate species are very

tolerant of sulfate.

Id

. Mr. Mosher opined that many are so tolerant that no concentration

currently found in Illinois could harm the species.

Id

. Mr. Mosher further indicated that some

species such as invertebrate water fleas (

Daphnia

and

Ceriodaphania

) and scud (

Hyalella

) have

a harder time maintaining a salt balance under high sulfate conditions that leads to toxicity.

Id

.

Mr. Mosher testified that sulfate toxicity leads to mortality relatively quickly but with no

apparent residual effect. Tr.1 at 14. The new research also found that two constituents, chloride

and hardness, are keys to understanding sulfate toxicity.

Id

. Mr. Mosher noted that Mr. Koch

would discuss this correlation in more detail.

Id

.

TDS.

Mr. Mosher stated that the new research made obvious the fact that TDS was

inappropriate to use as a parameter for water quality. Tr.1 at 14-15. Mr. Mosher explained that

TDS is the sum of all dissolved substances in water and is dominated by the common ions of

sulfate, chloride, sodium, calcium, carbonate, and magnesium. Tr.1 at 15. Mr. Mosher opined

that based on the Agency’s investigation regarding sulfate toxicity, “it makes little sense to have

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7

a standard that covers all these substances together when the toxicity of each constituent is really

what is important.”

Id

. Mr. Mosher offered as an example that a sample with a high chloride

and TDS concentration of 2,000 mg/L is highly toxic to some species of aquatic life but a sample

with high sulfate at the same TDS concentration is nontoxic.

Id

. Mr. Mosher states that he is not

aware of an instance where common ions other than chloride and sulfate cause toxicity.

Id

. Mr.

Mosher opined that sulfate and chloride standards effectively regulate salt toxicity and a TDS

standard is no longer necessary.

Id

. Therefore, Mr. Mosher testified, the Agency is

recommending that the TDS standard be deleted.

Id

.

Mixing Zones.

Section 302.102 sets forth the conditions under which the Agency may

allow dilution of an effluent by the receiving waters. Tr.1 at 15-16. Mr. Mosher pointed out that

sulfate is one of a small group of substances for which treatment is usually infeasible and for

which mixing becomes an important option in regulations.

Id

. Mr. Mosher noted that the other

common substances for which treatment does not exist are chloride, boron and fluoride.

Id

. Mr.

Mosher testified that coalmines and other industries can commonly discharge effluent that

exceeds the current water quality standards for these pollutants and, therefore, mixing is required

to comply with the standards in the receiving streams.

Id

.

Mr. Mosher stated most high sulfate discharges from coal mines occur during wet

weather events that bring sediment-laden water into treatment ponds, and then the water is

discharged into water bodies where the water quality standards apply. Tr.1 at 16. According to

Mr. Mosher, the ponds function to remove sediment and control pH, but sulfate and chloride are

not reduced.

Id

. Also during wet weather events, water from unmined or reclaimed watershed

enters the water bodies and provides dilution.

Id

. Mr. Mosher stated that at many mines this is a

simultaneous process.

Id

.

Mr. Mosher indicated that for the “past few years” the Agency “has granted wet weather

discharges allowed mixing zones for sulfate and sometimes chloride with consideration of the

upstream flows.” Tr.1 at 17. Mr. Mosher stated that the Agency now proposes to amend the

mixing zone rules to clarify that mixing is allowed.

Id

.

The first change proposed by the Agency is to provide that a zone of passage need not

always be present in a receiving stream. Tr.1 at 17. A zone of passage is an area in the stream

not impacted by the mixture of effluent with receiving water that is preserved for use by aquatic

life whenever mixing is allowed.

Id

. Specifically, Mr. Mosher testified that there is one

circumstance where a zone of passage cannot be included in a receiving stream due to physical

and practical limitations.

Id

. That instance is often high in a watershed where only a few square

miles or less of drainage supplies the receiving stream.

Id

. The receiving streams are small and

narrow and stormwater-driven effluent will mix completely across the stream channel and leave

no room for a zone of passage.

Id

. Mr. Mosher stated that under a strict interpretation of the

existing rules, these dischargers would not be allowed mixing and would not be able to continue

operation.

Id

.

Mr. Mosher stated that the Agency must define “small streams” to ensure that eliminating

the zone of passage requirement is functional. Tr.1 at 18. Mr. Mosher testified that the Agency

developed a definition of “small streams” with the help of the Illinois State Water Survey using a

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concept similar to the commonly used 7Q10 flow.

Id

. The Agency is proposing defining “small

streams” to equate with the streams ability to maintain flow.

Id

. Streams very high in the

watershed will tend to lose flow and dry up when there is no rainfall.

Id

. Mr. Mosher opined

that streams losing all flow for at least one week nine out of ten years will have very limited

habitat for aquatic life.

Id

. Under the Agency’s proposal, Mr. Mosher stated that wet weather

discharges to these streams called 7Q1.1 zero flow will be allowed mixing for the entire stream

volume during wet weather events. Tr.1 at 19. The Agency’s proposal defines streams

identified as 7Q1.1 zero flow as streams having no flow for a t least seven consecutive days in

nine out of every ten years.

Id

. Mr. Mosher testified that aquatic life will be protected because

an analysis of the effluent and the amount of flow expected in the stream during discharge events

will be required to determine that the available mixing will reduce effluent concentrations below

the water quality standards.

Id

.

A second change to the mixing zone rules proposed by the Agency, is to delete the

prohibition of mixing in streams that have a 7Q10 flow of zero. Tr.1 at 20. Mr. Mosher

explained that this change is necessary to allow for the wet weather discharges described above

as well as non-stormwater discharges that have “unique characteristics”.

Id

. Mr. Mosher further

explained that the existing definition of dilution ratio implies that noncontinuous dischargers

would use the flow expected when the discharge occurs to determine the allowed stream flow.

Id

. Mr. Mosher stated that under the Agency’s proposal these flows must allow for a zone of

passage that is 75% of the stream flow if the dilution ratio is 3 to 1 or greater and the stream

7Q1.1 is greater than zero.

Id

.

Mr. Mosher testified that many effluents are continuously discharged and therefore the

default stream flow for calculating dilution is 7Q10. Tr.1 at 20. Such dischargers include

sewage treatment plants, power plants, and industrial dischargers.

Id

. Mr. Mosher stated that

some facilities outside these general categories may produce effluent only periodically.

Id

. Mr.

Mosher testified that stream flow may be used for granting mixing where the discharger can

demonstrate that discharges will occur at times and in quantities that will be sufficiently diluted

by the stream flow present at the time of the discharge. Tr.1 at 20-21. Mr. Mosher opined that

the proposed deletion enables the definition of dilution ratio to guide the Agency in granting

mixing. Tr.1 at 21.

Mr. Mosher emphasized that all other aspects of the mixing zone and water regulations

remain unchanged by this proposal. Tr.1 at 21. Mr. Mosher stated that the proposed changes

will work with the other regulations.

Id

. Mr. Mosher noted that dischargers will still be required

to provide the best degree of treatment (

see

35 Ill. Adm. Code 304.102) before mixing is

allowed.

Id

. Mr. Mosher further noted that with the changes proposed for sulfate and TDS and

the deletion of the mine exemptions in Subtitle D will allow the Agency to regulate all types of

dischargers in an equitable manner.

Id

.

Response to Questions and Testimony.

When asked about whether deletion of the TDS

could create an issue with calcium, Mr. Mosher indicated that calcium, sodium, and magnesium

paired with sulfate are not toxic. Tr.1 at 42. Further, the studies performed to determine aquatic

life standards included hardness, and calcium is a constituent of hardness. Tr.1 at 43. Mr.

Mosher also replied that if some unique situation occurred where calcium discharges were

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9

problematic, the Agency would evaluate the discharge using the antidegradation provisions of

the rules. Tr.1 at 43-44. Mr. Mosher continued to address the issue of calcium at the second

hearing and indicated that the Agency can, through the permit process, require mines to provide

data on toxicity and what alternatives might exists. Tr.2 at 54. Mr. Mosher stated that the

Agency believes the issue is under control.

Id

.

In response to questions regarding the economic impact of the proposed changes, Mr.

Mosher conceded that no formal economic impact analysis had been performed. Mr. Mosher

noted that several adjusted standards and site-specific rulemakings have been granted dealing

with sulfate and TDS. Tr.1 at 69. Mr. Mosher believes that all the existing adjusted standards

and site-specific rulemakings will be unnecessary and this will preclude a future need. Tr.1 at

69-70. As to the change for coal mines, Mr. Mosher stated that the Agency believes those mines

“will suffer no economic hardship” and the proposed rules may provide a “way for mines to

continue to exist.” Tr.1 at 70.

A question was asked concerning whether the Agency considered changing the standards

for secondary contact waters for sulfate and TDS in this rulemaking. Tr.1 at 74. Mr. Mosher

replied that the Agency wished to keep the secondary contact waters separate and distinct.

Id

.

Mr. Mosher testified at the second hearing that the Agency intended to file the secondary contact

waters standards rulemaking later this year. Tr.2 at 40. Mr. Mosher stated that the Agency

wishes to make all changes to secondary contact waters at the same time and the Agency

believes that stakeholders should be given an opportunity to comment on sulfate and TDS

standards. Tr.1 at 74; Tr.2 at 40. Mr. Mosher indicated that there is an additional problem for

review with secondary contact waters and that is the issue of standards when chloride exceeds

500 mg/L. Tr.2 at 41. Thus, Mr. Mosher stated the Agency still prefers to address all secondary

contact water standards together.

Id

.

Mr. Mosher answered a question from the Environmental Groups that indicated the

Agency practice is to allow mixing in 50% of the flow, if the dilution ratio is less than 3 to 1.

Mr. Mosher added, “[t]here can be cases where our Agency would chose not to use 50%” of the

flow. Tr.1 at 65. Mr. Mosher clarified that when the dilution ratio is less than 3 to 1, the Agency

looks at the factors present and what makes the most sense on a case-by-case basis.

Id.

Mr.

Mosher responded to suggestions by the Environmental Groups that the Agency’s general

practice for mixing zones be codified and indicated the Agency would rather maintain the

flexibility the Agency has used over the past several years. Tr.2 at 55. Mr. Mosher referred to

situations where the Agency would allow more or less than 50%, including dischargers who

provide a vital service to society but have an untreatable effluent that might necessitate 51% as

long as aquatic life was protected. Tr.2 at 55-56. In turn, Mr. Mosher questioned the

Environmental Groups on the scientific basis for proposing 50% as the maximum value. Tr.2 at

56

.

Mr. Mosher indicated that the Agency does not agree with the Environmental Groups’

proposed language changes.

Id

.

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10

Brian Koch

Mr. Koch testified concerning the procedures used to develop the water quality standards

for aquatic life and livestock. Mr. Koch also summarized the proposed rule changes for sulfate

standards. The following paragraphs will summarize his testimony on those two issues.

Aquatic Life.

Mr. Koch has been employed with the Agency since January 2006 and he

has been charged with obtaining a complete understanding of the formal guidelines the Agency

used to derive the proposed aquatic life standards. Tr.1 at 23. Mr. Koch testified that prior to his

employment, the Agency, USEPA and the Survey spent several years reviewing literature and

conducting research in support of standards derivation.

Id

. Mr. Koch stated that the guidelines

are followed in standards development by USEPA and other states and were used as a basis for

deriving water quality standards in Subparts E and F of the Board’s rules (35 Ill. Adm.

Code.Subparts E and F). Tr.1 at 23-24.

Mr. Koch opined that a key component in standards derivation is gathering and assessing

available toxicity data for the substance. Tr.1 at 24. Mr. Koch stated that sodium is the

predominant cation in Illinois waters, so the Agency searched the data for sodium sulfate aquatic

life toxicity data that was both reputable and reflective of Illinois fauna.

Id

. Dr. Charles

Stephan, a primary author of the guidelines document, took the lead in the evaluation of toxicity

data and compiled the list of final values considered for sulfate standards derivation.

Id

. Mr.

Koch testified that based on a review of the data, fish are quite tolerant of sulfate while

invertebrates are much more sensitive due to problems in maintaining osmotic balance. Tr.1 at

25. At this time, Mr. Koch noted that sulfate toxicity to invertebrates was impacted by water

chemistry.

Id

.

Dr. Soucek of the Survey was contracted to conduct laboratory toxicity testing on

multiple invertebrate species exposed to sodium sulfate at various concentrations of hardness and

chlorides. Tr.1 at 25. Dr. Soucek’s research was instrumental in the derivation of new sulfate

aquatic life standards because the research verified that sulfate toxicity to aquatic invertebrates

was dependent on hardness and chloride concentrations of water.

Id

. Mr. Koch stated that Dr.

Soucek’s research also characterized sulfate toxicity to previously untested invertebrates and

thus increased the data set. Tr.1 at 25-26.

Mr. Koch stated that a by-product of Dr. Soucek’s research was the finding that chronic

exposures of the water flea to sulfate did not result in reduced survival compared to acute

exposure routes. Tr.1 at 26. Mr. Koch testified that the research indicated that sulfate does not

exhibit traditional chronic toxicity similar to substances such as heavy metals or pesticides.

Id

.

Mr. Koch indicated that the unique toxicodynamics of sulfate required a sulfate adjustment factor

when converting the concentration lethal to 50% of tested organisms (LC50) to the protective

level of effect.

Id

.

Mr. Koch testified that when data is available to show that acute toxicity to two or more

species is related to a water quality characteristic, an acute equation must be calculated to

describe the relationship. Tr.1 at 27. With sulfate, toxicity to

Hyalella azteca

and

Ceriodaphnia

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11

dubia

was quantified in respect to hardness and chloride and the sulfate LC50 values were

measured or estimated at various concentrations and transformed into equations.

Id

. Mr. Koch

indicated that two separate equations were necessary due to the finding that sulfate was

increasingly toxic at low chloride concentrations but decreasingly toxic at concentrations

intermediate and higher.

Id

.

With the equations in place, LC50 values for all valid tests within the database were

normalized at specific concentrations of hardness and chloride whereupon genus mean acute

values and final acute values (FAV) were calculated. Tr.1 at 28. Mr. Koch stated that by

definition the FAV value is protective of at least 95% of the species at the LC50 level of effect.

Id

. However, the standard cannot be set at the FAV effect level, as this concentration would

result in 50% mortality in highly sensitive species.

Id

. Mr. Koch indicated that to achieve a

sufficient level of protection, an FAV or FAV equation is multiplied by an adjustment factor that

translates the LC50-based FAV into a value that is representative of a no observable effect

concentration.

Id

.

Mr. Koch stated that based on the research, the Agency developed two acute aquatic

toxicity criterion equations for sulfate at specified ranges of hardness and chloride. Tr.1 at 29.

Mr. Koch opined that the adoption of these equations will allow for the site-specific calculation

of sulfate standards. Tr.1 at 30. Mr. Koch testified that the resulting value will be a protective

concentration for sulfate at that site under those water quality characteristics.

Id

.

Livestock.

Mr. Koch testified that there is no existing livestock water quality standard;

however, the 500 mg/L aquatic life standard was considered protective when that standard was

adopted in 1972. Tr.1 at 30. After Mr. Koch was employed by the Agency, he was charged with

researching the effects of sulfate on livestock watering to ascertain if the proposed aquatic life

standard would threaten livestock. Tr.1 at 30-31. Mr. Koch stated that a review of the literature

established that livestock are acutely tolerant of sulfate within the range of calculable aquatic life

sulfate standards. Tr.1 at 31. Mr. Koch opined that acute exposure to concentrations within this

range may result in cathartic effects for several days, but the effects will lessen as the livestock

acclimate to elevated sulfate.

Id

.

Mr. Koch noted that prolonged exposure to elevated sulfate levels would likely lead to

adverse effects for the animals and the economy of livestock operations effected by the exposure.

Tr.1 at 31. Mr. Koch stated that based on the literature review the Agency concluded that a

chronic standard of 2,000 mg/L of sulfate would be protective of livestock watering and would

not lead to adverse effects on livestock or the economy of livestock operations.

Id

. The

Agency’s proposed standard is only applicable where water is used for livestock watering, and in

many of those waters, aquatic life standards will require a lower sulfate level. Tr.1 at 32. The

Agency’s proposal requires a 30-day average sulfate standard of 2,000 mg/L if the aquatic life

standard, applied instantly, is higher.

Id

.

Mr. Koch stated that the Agency contacted Dr. Gavin Meerdink, from the Department of

Veterinary Medicine at University of Illinois - Urbana, to verify the suitability of the proposed

standard. Tr.1 at 33. According to Mr. Koch, Dr. Meerdink has performed consultations for

livestock operations throughout Illinois and has often dealt with the issue of sulfate in livestock

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12

water and feed.

Id

. Dr. Meerdink agreed that a 2,000 mg/L sulfate standard would adequately

protect livestock. Tr.1 at 34.

Rule Changes.

Mr. Koch explained that the development of updated standards required

the modification of Section 302.208. Tr.1 at 34. The first change is to strike the current sulfate

and TDS standards from Section 302.208(g) and move the proposed sulfate standards to a new

Section 302.208(h).

Id

. Section 302.208(h)(1) is the livestock standard, which will be

implemented as the average concentration not to be exceeded over a 30-day period. Tr.1 at 35.

Mr. Koch clarified that sulfate standards may exceed 2,000 mg/L instantaneously as long as the

30-day average of 2,000 mg/L is not exceeded.

Id

.

Section 302.208(h)(2) includes equations that provide sulfate water quality standards in

mg/L for the specified ranges of hardness and chloride. Tr.1 at 35. Section 302.208(h)(3) sets a

sulfate limit of 500 mg/L when hardness is less than 100 mg/L or chloride is less than 5 mg/L. If

hardness is greater than 500 mg/L and chloride is more than 5 mg/L, the sulfate standard is 2,000

mg/L. Tr.1 at 36.

Toby Frevert

Mr. Frevert did not offer prepared testimony but was available to respond to questions

during the first hearing. Specifically, Mr. Frevert testified about rulemakings that are currently

being considered by the Agency. Tr.1 at 40. One of those rulemakings involves water quality

standards for secondary contact waters for streams in northeastern Illinois.

Id

. Mr. Frevert also

responded to questions concerning the identification of 7Q1.1 zero flow streams. Although these

streams have not yet been identified (

see

Tr.1 at 79-80), Mr. Frevert stated that in his experience

a stream with less than 20 square miles of drainage would generally go dry annually. Tr.1 at 80.

Mr. Frevert further stated that in his experience there are “thousands and thousands of miles of

drainage ways that have just a few square miles of drainage way.” Tr.1 at 81.

CITGO Testimony

At the second hearing, CITGO presented testimony from Bridget Postel, Environmental

Engineer, Water Coordinator for CITGO, and James Huff, Vice-President of the environmental

consulting firm Huff & Huff. In addition, CITGO filed a post-hearing public comment.

Bridget Postel

Ms. Postel has been employed by CITGO for the past three years and has been at the

Lemont Refinery since October 2003. Tr.2 at 8-9. Ms. Postel holds the position of

environmental engineer and has had various experiences in the field. Tr.2 at 9. The Lemont

Refinery is operated by CITGO and was constructed during the period of 1967 through 1970 and

became operational in late fall 1969.

Id

. The average daily production of the Lemont Refinery

is 168,626 barrels per day and the Refinery employs approximately 530 people. Tr.2 at 9-10.

The Lemont Refinery draws from and discharges to the Chicago Sanitary and Ship Canal,

drawing approximately four million gallons of water and discharging approximately 3.8 million

gallons of water. Tr.2 at 10. Ms. Postel explained that the wastewater effluent contains

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13

dissolved solids derived from compounds present in crude oil that are removed from the crude by

various refinery operations. Tr.2 at 10-11. The effluent also concentrates TDS present in the

intake water from the canal by evaporative cooling, according to Ms. Postel. Tr.2 at 11.

Ms. Postel testified that the purpose of her testimony was to support the Agency’s

proposal and to request that the changes pertaining to TDS and sulfate be extended to the Lemont

Refinery. Tr.2 at 11. Ms. Postel stated that TDS has recently become an issue for CITGO

because of an agreement that CITGO reached with USEPA and four states including Illinois to

substantially reduce sulfur dioxide and nitrogen oxide emissions from several facilities. Tr.2 at

12. Ms. Postel testified that the equipment used to reduce these air emissions result in increased

TDS in the effluent.

Id

. Ms. Postel noted that because of the TDS levels in the lower Des

Plaines River near I-55, the Agency could not issue a construction permit for the project.

Id

.

Ms. Postel stated that treatment for TDS in the wastewater stream is neither technically feasible

nor economically feasible and technologies for removing sodium sulfate are limited. Tr.2 at 12-

13. While investigating options, Ms. Postel stated that CITGO became aware of the Agency’s

efforts to eliminate TDS water quality standards for both general use waters and secondary

contact waters. Tr.2 at 14.

Ms. Postel noted that even two years ago the progress of the rulemaking was clearly not

going to help the Lemont Refinery meet the TDS requirements and therefore CITGO sought and

received a variance to allow CITGO to proceed with construction. Tr.2 at 15. The Board

granted CITGO the variance in April 2005 (

see

CITGO Petroleum Corporation v. IEPA, PCB

05-85 (Apr. 21, 2005)). Ms. Postel stated that CITGO has proceeded under the variance and

consent decree and the project is on schedule. Tr.2 at 16. Ms. Postel indicated that on May 2,

2006, CITGO attended a stakeholders meeting with the Agency and discovered that elimination

of the TDS water quality standards would be proposed only for general use waters and secondary

contact TDS standards would be eliminated in a future Agency’ rulemaking proposal. Tr.2 at

16-17.

Development of the future proposal to amend secondary contact water quality standards

is experiencing delays, according to Ms. Postel. Tr.2 at 17. Ms. Postel claims that the issue of

eliminating a TDS water quality standard for secondary contact waters has not received any

comment during the stakeholders meeting and has not even been raised.

Id

. Ms. Postel further

claims that the only two facilities affected by the TDS standard for secondary contact waters are

Lemont Refinery and ExxonMobil Joliet Refinery.

Id

. Ms. Postel noted that the Exxon-Mobil

Joliet Refinery was recently granted site-specific relief. Tr.2 at 18, citing Revisions to Water

Quality Standards for Total Dissolved Solids in the Lower Des Plaines River ExxonMobil Oil

Corporation: 35 Ill. Adm. Code 303.445, R06-24 (Feb. 15, 2007)).

Ms. Postel stated that CITGO sees “no reason why the Board cannot amend the

Secondary Contact TDS standard at the same time as General Use water ways, at least as it

pertains to CITGO.” Tr.2 at 18. Ms. Postel stated that if the secondary contact TDS standard is

not amended in this proceeding, CITGO may be required to propose a site-specific rule.

Id

. Ms.

Postel noted such a proceeding would repeat the same testimony and evidence as presented in

this proceeding.

Id

. Ms. Postel testified that the information that justifies deletion of the TDS

standard for general use waters applies equally to secondary contact waters. Tr.2 at 19. Ms.

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14

Postel urged the Board to recognize that removal of the TDS water quality standard for

secondary contact waters is consistent with the Agency’s proposal and to eliminate the TDS

standard for secondary contact waters to the extent applicable to Lemont Refinery. Tr.2 at 18-19

James Huff

Mr. Huff testified that he has followed the Agency’s efforts to amend TDS and sulfate

closely since 2004. Tr.2 at 21. Mr. Huff commended the efforts of the Agency and noted that

Illinois has an opportunity to develop water quality standards based on better science than what

was historically available. Tr.2 at 22. Mr. Huff stated that he reviewed the Agency’s testimony

and exhibits and he fully supports the Agency’s proposed changes as they apply to general use

water quality standards.

Id

. Mr. Huff recommended that the proposed changes for TDS and

sulfate be included for secondary contact waters. Tr.2 at 23. Mr. Huff claims that there “is no

technical reason not to eliminate the TDS water quality standards proposed for General Use

streams to the Secondary Contact waterways.”

Id

. Mr. Huff stated that the evidence presented

by the Agency concerning general use standards applies to secondary contact waters as well.

Id

.

Mr. Huff acknowledged the testimony of Mr. Frevert and Mr. Mosher that the Agency

wished to propose all secondary contact waters changes in one rulemaking and that the hardness

and chloride levels in the Sanitary and Ship Canal are similar to level found in the lower Des

Plaines River. Tr.2 at 23. Mr. Huff noted that CITGO chose to seek a variance because of time

constraints and the understanding that the Agency would propose rules to eliminate the TDS

water quality standard and thus eliminate the need for the variance. Tr.2 at 24. Mr. Huff further

noted that in a comment filed in the ExxonMobil site-specific rulemaking, the Agency indicated

that certain conditions of the CITGO variance would no longer be pertinent.

Id

.

Mr. Huff testified that the delay in getting the sulfate and TDS proposal to the Board and

excluding secondary contact waters has placed CITGO in a difficult position. Tr.2 at 25. Mr.

Huff opined that the sulfate and TDS levels in the Des Plaines will not exceed the standards

proposed for general use waters. Tr.2 at 26. Mr. Huff maintained that relying on secondary

contact water quality changes in a future rulemaking “is fraught with uncertainty from a timing

perspective.” Tr.2 at 27. Mr. Huff noted that the Agency’s desire to amend secondary contact

water quality standards only once seems to be an inadequate justification for not adopting TDS

changes now.

Id

.

Mr. Huff noted that there are currently no sulfate or chloride water quality standards on

the secondary contact waterways. Tr.2 at 27. Mr. Huff further noted that the general use sulfate

standards are limited to waterways having chloride less than 500 mg/L, which is the general use

water quality standard for chloride. Tr.2 at 27-28. Mr. Huff pointed to data collected by CITGO

that indicate elevated chloride levels from February 19, 2007, to at least March 5, 2007, in the

lower Des Plaines River. Tr.2 at 28. Mr. Huff stated that the proposed regulations are not clear

as to what the sulfate standards would be during such a period when the general use water

quality standard for chloride would be exceeded.

Id

. Mr. Huff indicated that the Agency’s draft

proposal for secondary contact water quality standards includes the same equation as the general

use waterways without the chloride limitations. Tr.2 at 29.

---

15

Mr. Huff concluded that the Agency’s proposal is appropriate for primary contact

waterways with some adjustment for chlorides exceeding 500 mg/L. Tr.2 at 29. Mr. Huff

further concluded that adopting the equation for secondary contact waterways is also appropriate

and consistent with the Agency’s intention.

Id

.

Prairie Rivers Network, Sierra Club and the Environmental Law and Policy Center

Testimony (Environmental Groups)

Glynnis Collins, Watershed Scientist for Prairie Rivers Network, testified on behalf of the

Environmental Groups and noted that the Environmental Groups are generally supportive of the

Agency’s proposal regarding TDS, sulfate, and mixing zones. Tr.2 at 46. Further, Ms. Collins

indicated the strong support for elimination of the provisions of Subtitle D.

Id

. Ms Collins

stated that the scientific work regarding the effects of dissolved solids and aquatic life should

continue after adoption of the standards, as the Environmental Groups are not convinced that

Illinois’ standards are fully protective of aquatic life.

Id

. Specifically, the Environmental

Groups have concerns about water with high calcium levels and chloride levels higher than 500

mg/L. Tr.2 at 47. Also, the Environmental Groups have concerns regarding the change to the

mixing zone regulations. The Board will summarize Ms. Collins testimony in each of these

areas below.

Calcium

Ms. Collins expressed concern that some data suggests that when calcium is the primary

cation in a solution, calcium may serve to increase toxicity of sulfate. Tr.2 at 47. Ms. Collins

stated that the Environmental Groups understand that some mining operations use calcium

hydroxide in processing and this results in large amounts of calcium in the effluent.

Id

. The

Environmental Groups recommended that the Agency investigate the potential for calcium

hydroxide use to influence sulfate toxicity and if necessary restrict or regulate the use through

the permit process.

Id

.

Chloride

Ms. Collins stated that the data reviewed by the Environmental Groups indicates that

chloride concentrations higher than 25 mg/L increases toxicity of sulfate as chloride bubbles

increase and this relationship holds true for concentrations up to 500 mg/L. Tr.2 at 47. Ms.

Collins agrees that the general use water quality standard for chloride is 500 mg/L; however,

many Illinois waters do not meet that standard. Tr.2 at 48. Ms. Collins noted that the proposed

rule does not define a sulfate standard for those water unless hardness is greater than 500 mg/L.

Id

. Ms. Collins insisted that the rule must provide an equation, numeric standard or procedures

for site-specific standards development covering the entire range of possible chloride and

hardness levels.

Id

.

Mixing Zones

Ms. Collins testified that the Environmental Groups believe that the proposed changes to

the mixing zone requirements must be clarified and the Agency’s current practice regarding the

---

16

area and volume of mixing must be included in the Board’s rules. Tr.2 at 49. The

Environmental Groups proposed that Section 302.102(b)(8) be amended to specify what dilution

rate is required when 3 to 1 dilution is not available. Tr.2 at 50. Ms. Collins stated that this

change is critical, as the current standard does not say what happens where there is less than 3 to

1 dilution available; however, the rule does require that the water quality standard be met at he

pipe if the discharge is to a 7Q10 stream.

Id

. Ms. Collins noted that the Agency had testified

that as a general practice, mixing can occur in no more than 50% of the flow in such cases and

the Environmental Groups will accept this practice.

Id

. However, Ms. Collins emphasized that

the standard must be placed in the rule given the change proposed which will more frequently

allow mixing in waters with less than 3 to 1 dilution. Tr.2 at 50-51.

Illinois Coal Association (ICA)

Phillip Gonet, President of ICA, and Jim Boswell, Manager of Hydrology at Peabody

Energy, testified on behalf of ICA at the second hearing. Mr. Gonet offered testimony while Mr.

Boswell was available to answer questions. Mr. Gonet testified that the proposed changes

provide a more reasonable and scientific approach than the current rule; however, there are still

issues to be addressed. Tr.2 at 63. Specifically, Mr. Gonet claimed that the Agency stated

publicly that “no harmful effects” are occurring as a result of modern mining in Illinois.

Id

. Mr.

Gonet stated that studies targeting effects of coal mines on aquatic life have shown healthy

macroinvertebrate communities existing downstream from mine discharges.

Id

. Mr. Gonet

opined that sulfate is not a conventional toxic chemical as compared to heavy metals and,

conversely, sulfate is a necessary nutrient for normal functioning cells.

Id

. Mr. Gonet noted that

sulfate salts are essential to cation delivery and sulfur increases the protein content of plants.

Id

.

Mr. Gonet testified that given the beneficial uses of sulfate and the fact that USEPA has no

standard for sulfate, “the reasoning for imposing a sulfate standard altogether” is questionable.

Tr.2 at 64.

Mr. Gonet stated that based on the equations proposed, the sulfate standard for daily

maximums is between 500 mg/L and 2,600 mg/L. Tr.2 at 64. Mr. Gonet stated that there “are

many coal mine effluent concentrations that regularly exceed these concentrations of sulfate.”

Id

. Based on a report entitled, “Determination of Economic Impact of Changing Water Quality

Standards for Sulfate on Coal Mines, Final Technical Report: May 1, 2004, through April 30,

2005,” Mr. Gonet testified that a treatment option necessary to achieve the 2,000 mg/L standard

would result in a total cost of $10,953,000 for every 100 acres of drainage over a ten-year period.

Tr.2 at 65; Exh. 2. The treatment option contemplated in the report relied on using excess lime

and hydrochloric acid for precipitating the sulfate.

Id

. The total annualized cost (capital and

operating) for all mines in Illinois would by $730,000,000 over a period of 10 years. Exh. 2 at 3.

Mr. Gonet opined that based on the cost of compliance, potential and existing mine operators

will be discouraged from moving to Illinois or remaining in Illinois.

Id

. Mr. Gonet also

acknowledged that the economic report addressed only the situation where mixing is not granted

and active treatment would be the option. Tr.2 at 90-91. When asked about the effect of the

proposed amendments to the mixing regulations, Mr. Gonet stated, “we believe that the proposal

allows us the proper mixing and provides adequate protection to the streams.”

Id

.

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17

Mr. Gonet testified that the consequences of implementing the proposed sulfate standard

will directly impact the coalmining industry and the development of the standard was contrary to

USEPA guidelines. Tr.2 at 65. Mr. Gonet claimed that the Agency did not account for social

and economic impacts that would result from the loss of jobs and the state income that coal

mines provide to Illinois. Tr.2 at 66.

As to the livestock standard proposed by the Agency, Mr. Gonet testified that there are

studies suggesting a tolerance limit up to 2,500 mg/L of sulfate will have no long-term effects.

Tr.2 at 66. Further, according to Mr. Gonet, there are additional studies that are inconclusive as

to the appropriate sulfate concentrations that cause long-term effects, and none of the studies

cited lasting impacts at sulfate concentrations below 3,000 mg/L. Tr.2 at 66-67. Mr. Gonet

opined that the data supports a level of 2,500 mg/L with no long-term effects or loss of

performance and therefore the proposed standard should be changed from 2,000 mg/L to 2,500

mg/L. Tr.2 at 67.

Mr. Gonet stated that the monthly maximum sulfate standard is being applied to all

discharges into the waters of the State. Tr.2 at 67-68. Mr. Gonet claimed that there are

numerous discharges that will be episodic and a result of precipitation events. Tr.2 at 68. Mr.

Gonet stated that the Agency relied upon a 96-hour toxicity test and such a test will not be

applicable to flows that result in shorter exposure periods to the aquatic organisms.

Id

. Also,

Mr. Gonet noted that many streams flow only as a result of stormwater run-off and aquatic life is

probably not present in the receiving stream.

Id

. Therefore, Mr. Gonet opined that imposing a

standard for a designated use that does not exist is erroneous.

Id

. Mr. Gonet asserted that the

sulfate standard and mixing standards should only be imposed on receiving streams that warrant

aquatic life designated use.

Id

.

Mr. Gonet noted that the Agency’s proposed standard is based on two test species that are

commonly used for laboratory toxicity testing and were selected because these organisms were

known to be less tolerant and more sensitive to sulfate exposure. Tr.2 at 69. Mr. Gonet opined

that these two species do not necessarily inhabit every surface water in Illinois, but are

historically used by USEPA to derive water quality standards.

Id

. Mr. Gonet offered that

USEPA protocols, however, recommend using toxicity data from eight different taxonomic

families to derive water quality criteria.

Id

. Mr. Gonet conceded that while the addition of

species “will not likely alter the slope of the equation,” a less stringent numerical standard might

result. Tr.2 at 70.

Mr. Gonet also took issue with the range of values over which the standard is valid. Tr.2

at 71. Mr. Gonet noted that the equations use hardness of between 100 and 500 mg/L and

chloride at 5 and 500 mg/L and if those ranges are exceeded the standard for sulfate is 2,000

mg/L.

Id

. Mr. Gonet observed that if hardness is set at 500 mg/L and chloride is between 5 and

500 mg/L, the resulting range for sulfate standards is between 2,020 and 2,720 mg/L.

Id

. Mr.

Gonet testified that once the range is exceeded the standard becomes 2,000 mg/L and results in

an arbitrary reduction in the sulfate limit. Tr.2 at 71-72.

Mr. Gonet claimed that if adopted, the rule will be applied retroactively. Tr.2 at 72. Mr.

Gonet clarified that the standards will be applied to all NPDES permit holders no matter when

---

18

the permit was first issued. Tr.2 at 72-73. Mr. Gonet claims that this “policy presents a barrier

to all active and future NPDES permits” in Illinois. Tr.2 at 73. Mr. Gonet believes that there is

no way an operation can reasonably account for future regulations when planning a facility and

expecting a business to achieve compliance retroactively is unjustified.

Id

.

SUMMARY OF COMMENTS

The Board has received a total of eight public comments in this proceeding. The

following paragraphs will summarize the comments beginning with public comment number one

and proceeding in order.

Illinois Coal Association (ICA)

ICA filed two public comments in this proceeding (

see

PC 1 and PC3). The first (PC 1)

was filed prior to the second hearing and Mr. Gonet’s testimony at the second hearing was nearly

identical to that comment. Therefore, the Board will not summarize PC 1. The second comment

(PC 3) consists solely of supporting documents cited by ICA in the testimony. The Board will

review these supporting documents in reaching a decision on the merits of the rule; however, the

Board will not summarize the content of those documents.

Illinois Environmental Protection Agency (Agency)

The Agency filed two public comments (PC 2 and PC 4), both of which provide

responses to questions asked at the two hearings in this proceeding. The first response was to a

question seeking specifics about the Agency’s present policy to allow wet weather dischargers

mixing zones for sulfate and chloride. PC 2 at 1. The Agency gave an example where the

receiving stream for the mine effluent was a small-channelized ditch and the hardness value in

the effluent was lower than values measured upstream. PC 2 at 1-2. The Agency used the

effluent’s average hardness value to calculate the sulfate standard. PC 2 at 2. The Agency used

upstream values and effluent values to establish the chloride value. After performing the

calculations, the Agency found that no mixing was necessary to meet the sulfate standard;

however mixing was necessary for chloride.

Id

. The permit therefore included a condition that

prohibits discharge during dry weather.

Id

.

When asked how many mine discharge permits exist in Illinois, the Agency commented

that there are 19 active coal mines in Illinois at the present time and all have discharges that have

the potential to exceed the Board’s existing sulfate or chloride water quality standards. PC 2 at

2. The Agency noted that there are other mine-related discharges at mine reclamation sites, coal

ash disposal sites, and related facilities not associated with active coal mines.

Id

. These sources

hold approximately 90 NPDES permits and most of these also have the potential to exceed the

Board’s existing sulfate or chloride water quality standards. PC 2 at 2-3.

The Agency also responded to a question regarding the identification of 7Q1.1 streams.

The Illinois State Water Survey has not developed a map depicting the 7Q1.1 streams; however,

the Agency believes sufficient data and information exists to identify the 7Q1.1 streams. PC 2 at

3. The Agency expects that as a part of the permit process the applicant will provide the

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19

information necessary and the Agency will use the expertise of the Illinois State Water Survey

where necessary.

Id

.

In PC 4, the Agency responded to a question about when the Agency will file a

rulemaking addressing new water quality standards for secondary contact waters. PC 4 at 1. The

Agency indicated that the rulemaking will be filed by the end of the summer this year.

Id

.

Illinois Association of Wastewater Agencies Water Quality Subcommittee (IAWA)

IAWA complimented the Agency on providing a strong scientific basis for the sulfate

limit that had been considered overly simplistic. PC 5 at 1. IAWA supports the proposed

change to the sulfate standard and encourages the Agency to assess and correct other limits that

have not been rigorously reviewed in decades.

Id

. IAWA stated that excessively lenient

standards hurt the environment if the discharger exceeds limits while excessively strict limits

harm the economy by wasting money in efforts toward monitoring and control.

Id

.

IAWA also supports elimination of the TDS standard agreeing, that any pollutant that is

harmful should be regulated separately. PC 5 at 1. IAWA feels that the Agency retaining

discretion for staff in deciding the proper dilution value is appropriate.

Id

. IAWA believes that

accounting for all possible scenarios is impossible and the Agency’s staff should be allowed the

discretion to make these determinations.

Id

.

IAWA suggested the use of actual flow value for discharges that occur only during

precipitation events. RC 5 at 1. IAWA agrees with the Agency’s decision not to propose

standards for extremely high levels of sulfate and hardness.

Id

.

CITGO Petroleum Corporation (CITGO)

CITGO supports the Agency’s proposal to delete the TDS water quality standards for

general use waters and believes that the proposal should extend to secondary contact waters. PC

6 at 1. According to CITGO, the Agency stated two reasons for delaying a change to the TDS

standard for secondary contact waters: 1) stakeholders should be allowed to comment; and 2)

the Agency must consider sulfate standards when chloride is more than 500 mg/L. PC 6 at 2.

CITGO argues that neither of these reasons is sufficient grounds for delay.

Id

. CITGO

maintains that delaying the deletion of the TDS standard will require CITGO to seek a site-

specific rule, another variance, or to act on conditions in the variance CITGO currently has.

Id

.

CITGO commented that none of these would be necessary if the proposal was extended to

CITGO.

Id

.

CITGO maintains that chloride and sulfate standards are not among the issues being

discussed by stakeholders during meetings concerning the secondary contact waters standards.

PC 6 at 3. Further, CITGO is the only discharger in the Chicago area adversely affected by the

current TDS standard and TDS has not even been mentioned in the meetings.

Id

. CITGO

acknowledges that the Agency seems to want to propose a sulfate standard for waters with more

than 500 mg/L of chloride; however, CITGO claims that there is no scientific evidence

supporting the 500 mg/L standard.

Id

. CITGO notes that the Agency’s intent is not to use the

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20

general water quality standard to address waters with chloride levels over 500 mg/L, but rather to

address those on a case-by-case basis. PC 6 at 4.

CITGO opines that there is no need to address sulfate and chloride standards when

deleting TDS. PC 6 at 4. CITGO suggests that given the lack of scientific data and the fact that

no chloride standard currently exists for secondary contact waters, the Agency can address

sulfate and chloride standards on a case-by-case basis where chloride is over 500 mg/L in

secondary contact waters.

Id

. However, if the Board believes that a sulfate and/or chloride level

should be added when eliminating TDS, CITGO posits that adopting the equation proposed for

general use waters without the 500 mg/L chloride cap would be sufficient.

Id

.

CITGO argues that postponing the elimination of the TDS standard for secondary contact

waters will harm CITGO. PC 6 at 4. CITGO is reaching a critical decision-making time under

the variance.

Id

. Under the variance, CITGO must take certain steps to meet the conditions in

the variance including design and construction on the system. PC 6 at 5. Given the uncertainty

of adopting secondary contact water standards, without the deletion of TDS standards in this

rulemaking, CITGO may be forced to expend significant funds to begin a treatment system under

the terms of the variance.

Id

.

Illinois Environmental Regulatory Group (IERG)

IERG generally supports the Agency’s proposal and offers comments on three areas.

First, IERG believes the record lacks sufficient details concerning the economic impact of the

proposed rule. PC 7 at 1-4. Second, IERG supports CITGO’s request, and third, IERG seeks a

limitation on the applicability of the rule. PC 7 at 4-6. The Board will summarize each of these

issues below.

Economics

IERG notes that pursuant to Section 27(b) of the Act (415 ILCS 5/27(b) (2006)), DCEO

has not prepared an economic study, nor is DCEO required to prepare one. PC 7 at 2. IERG

feels that the Board’s obligation to determine the economic impact of the rule is not alleviated by

the Board’s request to DCEO and that the Board must fully consider the economic impact by an

economic analysis.

Id

. IERG commented that the Board must have a full and adequate record

including documentation and support that the proposed amendments are economically reasonable

and technically feasible.

Id

.

IERG places the burden on the Agency, as the proponent, to provide the Board with the

record necessary to determine economic reasonableness and technical feasibility. PC 7 at 3.

IERG does not believe the Agency has adequately provided the information to the Board.

Id

.

IERG noted that the Agency provided no basis for the statements made in the record about the

economic impact of the rule. PC 7 at 4.

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21

CITGO

IERG supports elimination of the TDS standard for general use waters and asks the Board

to consider the suitability of CITGO’s request. PC 7 at 4-5. IERG agrees with CITGO, that the

Agency’s justification for not including secondary contact waters in this proposal is inadequate

and TDS is not an issue in the stakeholders meetings on secondary contact waters. PC 7 at 5.

Limitation on Applicability

IERG noted that the standard being proposed is determined using equations in the rule,

which allows for a site-specific standard to be developed. PC 7 at 6. IERG further noted that

ICA believes the standard is too restrictive and will be costly to obtain.

Id

. IERG understands

that of particular concern to ICA is the ability of old closed mines to comply with the standard

being proposed.

Id

. IERG asks the Board to consider limiting prospective applicability of the

rule to those mines currently active and operational and to those inactive, closed mines if they re-

open for active mining.

Id

.

Prairie Rivers Network, Sierra Club and the Environmental Law and Policy Center

(Environmental Groups)

The Environmental Groups continue to support the proposed changes to the water quality

standards for sulfate and TDS. PC 8 at 1. However, there are concerns for the Environmental

Groups.

Id

. Those three areas are mixing, interactions between sulfate and other dissolved

solids, and chloride levels above 500 mg/L. The Board will summarize each of these issues

below.

Mixing

The Environmental Groups noted that at hearing, they proposed language that codified

the Agency’s practice to allow mixing in streams where a 3 to 1 dilution rate was not present, but

the flow is higher than zero 7Q1.1. PC 8 at 1. The Environmental Groups are “surprised” that

the Agency has not accepted this change, because in future permits the Agency may want to

deviate from the current practice of assuring a zone of passage for aquatic life by insisting on at

least 50% volume flow.

Id

. The Environmental Groups acknowledge that the Agency claims the

proposed language from the Environmental Groups is arbitrary with no scientific basis.

Id

.

However, the Environmental Groups commented that the current Board rule covering the

situation where the dilution rate is 3 to 1 was based on the same type of consistent Agency

practice.

Id

. The Environmental Groups argue that Agency practice is sufficient justification for

including language in the rule and the Board should include the language proposed by the

Environmental Groups. PC 8 at 1-2.

Interaction Between Sulfate and TDS

The Environmental Groups reiterate the concern that calcium may increase the toxicity of

sulfate. PC 8 at 2-3. However, the Environmental Groups agree with the Agency’s approach to

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