BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
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 and Part 407; )
and PROPOSED NEW 35 ILL. ADM.
CODE )
302.208(h).
)
NOTICE OF FILING
TO: Mr.
John Therriault
Assistant
Clerk of the Board
Illinois Pollution
Control
Board
100 West Randolph Street
Suite 11-500
Chicago,
Illinois
60601
(VIA ELECTRONIC
MAIL)
R07-9
(Rulemaking - Water)
Ms. Marie E. Tipsord
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Street
Suite 11-500
Chicago, Illinois 60601
(VIA U.S. MAIL)
PLEASE TAKE
NOTICE that I have today filed with the Office of the
Clerk
of
the Illinois Pollution
Control
Board
THE ILLINOIS ENVIRONMENTAL
REGULATORY GROUP'S COMMENTS, a copy of which is
herewith served upon
you.
Respectfully submitted,
Dated: December
3, 2007
By:
Katherine D. Hodge
Monica
T. Rios
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
THIS FILING SUBMITTED ON RECYCLED PAPER
Electronic Filing: Received, Clerk's Office, December 3, 2007 - PC #9
CERTIFICATE OF
SERVICE
I, Monica T. Rios, the undersigned, certify
that I have served the attached
THE
ILLINOIS ENVIRONMENTAL
REGULATORY
GROUP'S COMMENTS upon:
Mr.
John
Therriault
Assistant
Clerk of the Board
Illinois Pollution
Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois
60601
via electronic mail on December
3, 2007; and upon:
Ms. Marie E.
Tipsord
Hearing Officer
Illinois Pollution Control Board
100
West Randolph Street
Suite 11-500
Chicago, Illinois 60601
Sanjay K.
Sofat, Esq.
Assistant Counsel
Illinois Environmental Protection
Agency
1021
North Grand Avenue East
Springfield, Illinois 62794-9276
Mr. Kenneth W. Liss
Andrews
Environmental Engineering
3300 Ginger
Creek Drive
Springfield, Illinois
62711
Ms. Elizabeth
Steinhour
Weaver Boos
Consultant, Inc.
2021 Timberbrook
Lane
Springfield, Illinois 62702
Albert Ettinger,
Esq.
Senior Staff Attorney
Environmental
Law & Policy
Center
35 East
Wacker Drive
Suite 1300
Chicago, Illinois 60601
by depositing said documents
in the United States Mail in
Springfield, Illinois, postage
prepaid, on December
3, 2007.
I ERG:001 /R Dockets/Fil/R07-9/NOF-COS
- IERG Conunents
Electronic Filing: Received, Clerk's Office, December 3, 2007 - PC #9
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
IN
THE MATTER OF:
)
TRIENNIAL
REVIEW OF SULFATE AND)
TOTAL DISSOLVED
SOLIDS WATER ) R07-09
QUALITY STANDARDS: PROPOSED )
(Rulemaking
- Water)
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 and Part 407; and
)
PROPOSED NEW 35 ILL. ADM.
)
CODE 302.208(h).
)
THE ILLINOIS ENVIRONMENTAL
REGULATORY
GROUP'S COMMENTS
NOW
COMES the ILLINOIS ENVIRONMENTAL REGULATORY
GROUP
("IERG"), by and through its attorneys,
HODGE DWYER ZEMAN, and submits the
following comments in
the above-referenced matter:
I. INTRODUCTION
IERG, a non-profit
Illinois corporation, was organized to promote
and advance
the interests of its members before governmental agencies,
such as the Illinois
Environmental Protection Agency
("Illinois EPA"), and before the Illinois Pollution
Control Board
("Board"). IERG's members include companies
engaged in industry,
commerce, manufacturing,
agriculture, trade, transportation, or other
related activities,
and which
persons, entities, or businesses are all regulated
by governmental agencies that
promulgate, administer,
or enforce environmental laws, regulations, rules, or policies.
On behalf of its members, IERG has participated
in the development of the
proposed regulations by attending
outreach meetings, discussing drafts of the proposal
with
Illinois EPA, participating at hearings, and
filing comments in this matter.
Electronic Filing: Received, Clerk's Office, December 3, 2007 - PC #9
On June 7, 2007, IERG filed
post-hearing comments stating that
it generally
supports
Illinois EPA's proposed amendments to revise the
sulfate standard and eliminate
the total dissolved solids ("TDS")
standard for general use waters, and requesting
that the
Board favorably
consider IERG's comments as it proceeds
in this rulemaking. IERG's
Comments, 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), 301.102(b)(10)
302.208(8) 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 and Part 407; and
Proposed New 35 III. Adm. Code 302.208(h),
PCB No. R07-9 (I11.Pol.Control.Bd.
June 7,
2007) (hereinafter
this rulemaking will be cited
as
"Triennial
Review"). Specifically,
IERG
commented regarding: 1) the technical
feasibility and economic reasonableness
of
the proposed rule; 2)
support of CITGO's request to extend
the proposed rule to
secondary
contact waters; and 3) the retroactive
application of the proposed standards.
Id.
On September 20, 2007, the Board
issued its First Notice Opinion
and Order.
First Notice Opinion, Triennial
Review, PCB No. R07-09 (I11.Po1.Control.Bd.
Sept. 20,
2007). The
Board specifically requested
"participants to provide additional
comment on
the economic reasonableness
of the entire proposed rule." Id.
at 31.
II. ECONOMIC IMPACT
ON LIVESTOCK OPERATIONS
IERG's June 7, 2007
comments discussed the proponent's
obligation to provide
an
economic analysis in order for the Board
to
fully
take into consideration the
economic
impact of the proposed rule. IERG's
Comments at 2-4. Section 27(a)
of Illinois
Environmental Protection
Act ("Act"), 415 ILCS 511,
et sec.., clearly places the burden
on
Electronic Filing: Received, Clerk's Office, December 3, 2007 - PC #9
Illinois
EPA, as the proponent of the rulemaking,
to provide a full economic
impact
analysis to the Board. 415
ILCS 5/27(a). IERG does not believe
that the information
provided
to the Board by Illinois EPA fulfills
this obligation. IERG's Comments at 2-4.
As previously noted in
IERG's June 7, 2007 comments, Illinois
EPA adequately
developed
the record to support its position that the
economics of livestock operations
would not be adversely impacted
by a 2,000 milligrams per liter ("mg/L")
sulfate
standard. Id. at 4.
Illinois EPA's toxicologist, Brian
Koch, provided testimony
supporting the proposed rule
and explained the effects of higher
sulfate concentrations on
livestock and its
economic impact to livestock operations.
Transcript of March
7,
2007
Hearing, Triennial Review
at 22-36 (I11.Pol.Control.Bd. Mar. 16, 2007)
(hereinafter cited
as Mar. Tr.).
Based on a literature review and consultation
with Dr. Gavin Meerdink
from the Department of Veterinary Medicine
at University of Illinois
Champaign-
Urbana, Illinois EPA
reasoned that at a higher sulfate
concentration of 2,360 mg/L,
cattle
exhibit
decreased dressed-out parameters
"signifying that exposure to drinking
water at
this concentration may
result in economic losses to livestock
operations." Id. at 32.
Illinois
EPA further demonstrated that
at even higher sulfate concentrations
from 2,500
mg/L to 3,000 mg/L,
cattle exhibit more severe symptoms
up to and including poor
conception,
weight loss, and "polioencephalomalacia,
a neurological disorder
which leads
to anorexia, blindness, seizures,
and eventually death." Id. at
33.
Based on these considerations,
Illinois EPA established that
at sulfate
concentrations below 2,000
mg/L, there is no economic impact
on livestock operations.
Id.
at 31. Illinois EPA concluded:
that a chronic standard
of 2,000 mg/L sulfate would
be protective of
livestock watering, as surface
waters supporting this concentration
would
Electronic Filing: Received, Clerk's Office, December 3, 2007 - PC #9
not lead to adverse effects on livestock or economic impacts to livestock
operations.
I d.
Illinois EPA, utilizing
research
analysis and discussions with Dr. Meerdink,
has
supported its proposed sulfate standard for livestock watering. The proposed rule
establishes a sulfate limit for livestock watering at 2,000mg/L, because Illinois EPA
demonstrated that higher concentrations have adverse effects on the health of livestock.
Thus,
the potential economic impact on livestock operations was fully considered in
establishing the sulfate limit for livestock drinking water. Unfortunately, Illinois EPA
did not apply the same degree of diligence in considering the economic impact for
industrial dischargers.
III. ECONOMIC IMPACT ON INDUSTRIAL DISCHARGERS, INCLUDING
MINING OPERATIONS
No similar economic impact analysis has been conducted to determine the impact
of Illinois EPA's proposal to establish a range of sulfate concentrations from 500 mg/L in
soft waters with low chloride levels to over to 2,500 mg/L in hard waters of average
chloride concentrations for industrial dischargers. Illinois EPA fails to cite to any
literature review or
expert consultation to support the economic
reasonableness
of
establishing this range of sulfate limits. Instead, in Illinois EPA's brief "Technical
Feasibility
and Economic Justification" section of the proposal's Statement of Reasons,
Illinois EPA states that "for most dischargers, the new sulfate and total dissolved solids
standards
will
allow attainment of water quality standards with the implementation of
additional management practices or process alternatives." Agency Regulatory Proposal,
Triennial Review
at 13 (I11.Pol.Control.Bd. Oct. 23, 2006) (hereinafter cited as
Electronic Filing: Received, Clerk's Office, December 3, 2007 - PC #9
"Statement of Reasons"). Illinois
EPA further states that "a significant majority of
discharges" would need to utilize "ongoing and routine control measures. Id. In
addition, Illinois EPA noted
in regards to the proposal's economic impact that it "would
require
a small number of existing mines to employ additional
controls to meet water
quality based permit limits." Id. Further, Illinois EPA
also stated that the proposed
changes
to the TDS and sulfate standards will reduce petitions for site-specific
water
quality standards for these two parameters resulting
in "a significant cost savings for
those
entities as well as to the Agency and Board." Id.
In regard to Illinois EPA's belief that the proposal
will decrease petitions for
regulatory relief
from the sulfate standard, IERG could locate only one site-specific
rulemaking petition for regulatory relief for
these constituents since 2004. In the Matter
of. Revisions to
Water
Quality
Standards for Total Dissolved Solids in the Lower Des
Plaines River for ExxonMobil Oil Corporation: Proposed
35 111. Adm. Code 303.445,
PCB No. R06-24 (Il1.Pol.Control.Bd.
Feb. 7, 2006). However, this site-specific petition
would not have been impacted by this proposed rulemaking
since it requested relief from
the TDS standard for secondary
contact waters. Id. Although cost savings may result by
eliminating a small number of petitions for regulatory relief, any such
cost
savings
would
likely be offset by costs incurred
by affected sources' inability to comply with the
proposed
sulfate limits, as is the case with coal mine operations.
As set forth
above,
Illinois
EPA has indicated that it "anticipates that the proposal
would require a small number of existing mines to employ additional
controls to meet
water quality based permit limits."
Statement of Reasons at 13. However, Illinois EPA
does not
explain the nature of these additional controls or what it will cost
to purchase,
Electronic Filing: Received, Clerk's Office, December 3, 2007 - PC #9
install, operate, maintain, repair, and monitor such controls. Further,
the "small number"
of affected coal mines referenced in Illinois
EPA's Statement of Reasons could quite
possibly
be all coal mines as stated by Illinois EPA. Id. At the March 7, 2007
hearing,
Dr. Anand Rao, a Board technical adviser,
asked Illinois EPA "how many mine discharge
permits currently
exist in the State that are affected" by the proposed rules.
Mar. Tr. at
73. In response, Illinois EPA replied in
a
April
9, 2007 filing:
There are 19
active coal mines in Illinois at the present time. The
Agency
believes that all of
these mines have discharges that have the potential
to
exceed either the Board's existing
sulfate or the chloride water quality
standards
in their final effluent. Other mine related discharges
exist at
mine reclamation
sites, coal ash disposal sites, and related facilities
not
associated with one
of the active mines. These sources total approximately
90 NPDES permits, and most of these discharges
would also not meet one
or both of these standards in the final effluent.
Illinois Environmental Protection Agency's
Additional Information and Documents,
Triennial Review
at 2 (I11.Pol.Control.Bd. Apr. 9, 2007). (Emphasis
added.)
Thus, the proposed rule could have potentially
significant economic impact upon
all coal mine related
activities in the State, and Illinois EPA has not
provided any
economic analysis to support its claim that the proposed
rule does not, in fact, negatively
impact coal mine related
activities. In the Motion for Acceptance of
the
Proposed
Rule,
Illinois EPA states that the "regulatory proposal
includes" an "Agency Analysis of
Economic and Budgetary
Effects of Proposed Rule."' Statement of Reasons
at 3. The
proposal does not contain such a document. Illinois
EPA's statutory obligation, as the
1 Note that the Joint Committee
on Administrative Rules ("JCAR") may request from any
agency "an
analysis of the economic and budgetary effects of the proposed rulemaking..
.." 1 Ill. Admin. Code ยง
220.300(a). JCAR requested such
an analysis from the Board on October 2, 2007. JCAR Request,
Triennial Review,
PCB No. R07-9 (I11.Pol.Control.Bd. Oct. 10, 2007). Illinois
EPA's statutory obligation,
as the proponent of the proposal, to provide
an economic analysis of the impact of the rule is independent
from any response
the Board may provide to JCAR's request. Also note
that the Board may have difficulty
complying with JCAR's request since Illinois EPA has failed
to provide a thorough analysis of the
proposed rule's economic impact.
Electronic Filing: Received, Clerk's Office, December 3, 2007 - PC #9
proponent
of the proposal, to provide an economic analysis of the impact
of the rule is
independent from any response the Board may provide
to JCAR's request. Illinois EPA
has merely provided
three paragraphs in its Statement of Reasons to justify
the economic
reasonableness of the proposed rule. Id. at 13. As
discussed more fully above, Illinois
EPA has
failed to support its statements that the proposed rule is economically
reasonable.
IV.
CONCLUSION
IERG appreciates the opportunity
to
participate
in this proceeding, and
respectfully requests
that the Board take these additional comments into consideration.
***
IERG reserves
the right to supplement and modify these comments.
Respectfully submitted,
By:
D ated: December 3, 2007
Katherine
D. Hodge
Monica T. Rios
HODGE DWYER ZEMAN
3150 Roland Avenue
Post
Office Box 5776
Springfield,
Illinois 62705-5776
(217) 523-4900
ILLINOIS ENVIRONMENTAL
REGULATORY
GROUP,
One of its Attorneys
I ERG:001/R Dockets/fil/R07-09/IERG Comments
Electronic Filing: Received, Clerk's Office, December 3, 2007 - PC #9
