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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),

405.109(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)

RECE

IVED

DEC 0 5

2007

tilroiN0

oard

John Therriault, Assistant Clerk

Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

Mathew Dunn

Illinois Attorney General's Office

Environmental Control Division

James R. Thompson Center

100 West Randolph Street

Chicago, Illinois 60601

Attached Service List

Marie E. Tipsord

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, Illinois 60601

Jonathan Fun

Illinois Department of Natural Resources

One Natural Resources Way

Springfield, Illinois 62702-1271

PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the Pollution Control

Board the

COMMENTS OF ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

copies of

which are herewith served upon you.

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

By:

Sanjay K Sofat

Assistant Counsel

Dated: December 3, 2007

Illinois Environmental Protection Agency

1021 North Grand Avenue East

Springfield, Illinois 62794-9276

(217) 782-5544

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),

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

35 ILL. ADM. CODE 406.203 and PART 407;

and PROPOSED NEW 35 Ill. ADM. CODE

STCAETECOFEI

Illinois Environmental Protection Agency's First Notice Comments

Now comes the Illinois Environmental Protection Agency (the "Agency" or "Illinois EPA"),

by and through one of its attorney, Sanjay K. Sofat, and hereby respectfully submits to the Illinois

Pollution Control Board ( the "Board") its First Notice Comments in the above-captioned regulatory

proceeding. In support thereof, the Agency states as follows:

COMMENTS

Water Quality Standard for Sulfate

Standard when Chloride is Greater than 500 mg/L

To address the Prairie Rivers Network, Sierra Club, and Environmental Law & Policy

Center's ("Environmental Groups") concern that the Agency's proposal is silent on determining a

sulfate standard when chlorides are above 500 mg/L and hardness is less than or equal to 500 mg/L,

the Board proposed paragraph C to Section 302.203(h)(3) of the Agency's proposal. The Board's

proposed language in Section 302.203(h)(3)(C)

provides that for chloride and hardness ranges not

specified in the rule, the sulfate standard be "determined based on a case-by-case basis in

conjunction with an NPDES permitting process."

See

Board Order and Opinion, First Notice, R 07-

9, September 20, 2007 at 25 (Hereinafter "Board Opinion"). By proposing this language, the Board

is specifying a sulfate standard for all conditions of chloride concentrations, including those

exceeding the water quality standard of 500 mg/L.

At the hearing, the Agency testified that the rule should not imply that chloride

concentrations greater than 500 mg/L are acceptable in general use waters.

See

Board Opinion at

24. Further, the Agency indicated that in cases where chloride concentrations are greater than 500

mg/L, it "would address these waterways on a case-by-case basis, perhaps through permitting."

See

Board Opinion at 24. Essentially, the Agency's intended message was that it is very difficult to

account for concentrations of one parameter when toxic conditions exist because of another

parameter. Therefore, in cases where chloride concentrations exceed the general use water quality

standard, one cannot compensate for a toxic chloride condition by reducing sulfate from an

otherwise acceptable condition.

The Agency consulted United States Environmental Protection Agency ("USEPA") Region 5

on the Board's proposed language for

Section 302.203(h)(3)(C). The USEPA's

position is stated in

a letter from Linda Hoist, Chief of the Water Quality Branch, dated November 29, 2007.

See

Attachment I. Based on its review, the USEPA concluded that the proposed Section

302.203(h)(3)(C) is "not consistent with the Clean Water Act (CWA) and Federal regulations." The

USEPA recommends that the proposed rule be revised because the language in paragraph C

"effectively changes the Federally approved water quality criterion for chlorides without EPA

review and approval." In support of this position, the USEPA cites Section 303(c) of the CWA and

federal regulations at 40 CFR 131.10(j)(2).

The Agency agrees with USEPA's rationale

that a sulfate criterion determined for a

waterbody in which chloride concentration are above the general use standard of 500 mg/L must

either show that the calculated sulfate standard is protective of the designated general use, or that the

designated use is not an attainable use consistent with 40 CFR 131.10(g). Further, for such sulfate

criterion to be effective, it must be approved by the USEPA. Thus, the Agency proposes that the

Board delete the language proposed in Section 302.208(h)(3)(C).

Also, the Agency has never seen the practical need for a provision provided under paragraph

C. In fact, the Agency is not aware of an instance where a permit limit for sulfate was necessary and

the in-stream chloride concentration was greater than 500 mg/L. Based on the review of the

monitoring data, the Agency has found that waters with chloride concentrations above 500 mg/L are

relatively rare. Most of the instances of chloride standard exceedences occur in urban watersheds

where streets are salted for traffic safety. However, the sulfate concentrations have been found to be

low in these watersheds. Generally, the main sources of sulfate are from coal mines and certain

large industrial discharges. There are no coal mines and only few industries are discharging into

these urban watersheds that are affected by winter time chloride exceedences. Instead of calculating

a sulfate criterion for a waterbody in which chloride concentrations are above the general use

standard of 500 mg/L, the protective approach is to bring the waterbody back into compliance with

the chloride water quality standard.

In this regard, the Agency identifies waterbodies impaired due to high chloride

concentrations through its monitoring programs. These impaired waters are listed in the biennial

303(d) report. The listing of impaired waters in the 303(d) report starts the TMDL process, the goal

of which is to find the sources causing the problem. The TMDL for the impaired water to various

sources would then allocate the chloride loadings such that the waterbody is brought back into the

compliance with the water quality standard. The academic debate to calculate sulfate criterion

where chloride concentrations are exceeding the general use standard is appropriately superseded by

the mandate to never let this condition exist in the first place. The correct response is to rectify the

condition.

If a situation requires the Agency to issue a permit with sulfate limit for a discharge to a

waterbody with high chloride concentrations, the Agency would follow the site-specific procedures

outlined by the US EPA in its letter. The Agency respectfully requests that, in the interest of

propriety and eventual federal approval of the proposed standards, the Board delete the language

provided in paragraph C of Section 302.208(h)(3).

II. Mixing Zones

Dilution Ratio Less Than 3:1

The Board's proposed language amends Section 302.102(b)(8) to provide that in a stream

where the dilution ratio is less than 3:1, the volume used for mixing purposes must not be more than

50% of the stream flow. This restriction does not apply to streams that have a zero flow for at least

seven consecutive days occurring on average in nine years out of ten. The Board amended Section

302.102(b)(8) in response to the Environmental Groups' request to codify a practice by the Agency

in drafting NPDES permits. The Agency testified that in streams where the dilution ratio is less than

3:1, the Agency uses 50% or less of the stream flow.

See

Board Opinion at 27. However, the

Agency also testified that, in some cases, it uses more than 50% of the stream flow, but does so on a

case-by-case basis. Neither the Agency nor any stakeholder testified that the designated uses are not

fully protected when more than 50% of the stream flow is used for mixing purposes. Under the

Illinois Environmental Protection Act, the Agency always has the obligation to ensure that the

designated uses are fully protected.

Despite the Board comments that the Agency's practice must be codified, the Board's

proposed language does not allow the use more than 50% of the stream flow in any case.

See

Board

Opinion at 27. The Agency believes that this prohibition will likely result in unnecessary

compliance issues, even though there may not be environmental issues at stake. In the past, the

Agency has found that there are cases where more than 50% of the stream flow may be necessary to

ensure compliance with applicable water quality standards, and yet still be able to ensure that

designated uses are fully protected. Thus, the Agency contends that restricting the use of stream

flow above 50% is arbitrary and unnecessary. There is nothing in the record to reflect that the use of

stream flow above 50% would not ensure that the designated uses are fully protected. Therefore, the

Agency recommends that no modification be made to the existing Section 302.208(b)(8) language.

To address the concern raised by the Environmental Groups, the Agency will determine the

adequate zone of passage pursuant to Section 302.208(b)(6) on a case-by-case basis. This approach

eliminates the need to arbitrarily define the maximum volume that can be used for mixing purposes.

ht case the Board still feels that there is a need to specify a limit on the use of stream flow,

the Agency believes that such limit should be based on the relevant scientific information, and not

based on the Agency's past practice. As the Agency has not performed any scientific literature

review, it is not in a position to propose language to address this issue. In fact, because the Agency

did not have the required information, it did not propose any changes to this section of the Board

rules in the original filing. The Agency, however, strongly believes that any changes to the Board

rules should be based on a well-developed record. Therefore, if the Board believes that this is a

deficiency that needs to be addressed, then the Agency recommends that the Board either address

this issue in another rulemaking or split the docket for further consideration on this issue.

Ill. Conclusion

Illinois EPA appreciates the resources the Board has dedicated to this regulatory proceeding

and the opportunity granted to all parties to participate and present documents and testimony for the

Board's consideration.

WHEREFORE, for the reasons stated above, the Agency respectfully requests the Board to

take further action in this proceeding consistent with the Agency's First Notice Comments.

Respectfully Submitted

ILLINOIS ENVIRONMENTALPROTECTION AGENCY

By:

Sanjay K Sofat

Assistant Counsel

Division of Legal Counsel

DATED: December 3, 2007

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 782-5544

Service List

Sonnenschein Nath & Rosenthal

Elizabeth Leifel

7800 Sears Tower

233 South Wacker Drive

Chicago, IL 60606-6404

Springfield, IL 62705-5776

(FIRST CLASS MAIL)

Andrews Environmental Engineering

Kenneth W. Liss

3300 Ginger Creek Drive

Springfield, IL 62711

(FIRST CLASS MAIL)

Albert Ettinger

Environmental Law & Policy Center

35 E. Wacker, Suite 1300

Chicago, IL 60601

(FIRST CLASS MAIL)

Beth Steinhorn

2021 Timberbrook

Springfield, IL 62702

(FIRST CLASS MAIL)

ATTACHMENT I

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 5

77 WEST JACKSON BOULEVARD

CHICAGO, IL 60604-3590

REPLY TO THE ATTENTION OF:

WQ-16J

Mr. Toby Frevert

Bureau of Water

Illinois Environmental Protection Agency

P.O. Box 19276

Springfield, Illinois 62794-9276

Dear Mr. Frevert:

The United States Environmental Protection Agency has reviewed the Illinois Pollution Control

Board's (the Board) proposed revisions to the sulfate water quality criterion proposed by the Illinois

Environmental Protection Agency (Illinois EPA). The Board recommended the following changes to

the rule proposed by Illinois EPA:

"C) If the combination of hardness and chloride concentrations of existing waters are

not reflected above, the sulfate standard will be determined on a case-by-case basis in

conjunction with an applicable NPDES permitting process."

The revision proposed by the Board concerning sulfate criteria when chloride concentrations are

greater than 500 mg/L is not consistent with the

Clean

Water Act (CWA) and Federal regulations

proposed and should be revised because it would effectively change the Federally-approved water

quality criterion for chlorides without EPA review and approval. Illinois' approved water quality

standards specify that the concentration of chlorides in general use waters must be equal to or less

than 500 mg/L in order to protect the uses of general use waters. To comply with Section 303(c) of

the CWA and Federal regulations at 40 CFR

131.10(0(2),

any action to derive a sulfate criterion

calculated based on an ambient chloride concentration of greater than 500 mg/L must be preceded by

submittal by Illinois EPA and approval by EPA of either a site-specific chloride criterion

demonstrating that a chloride concentration greater than 500 mg/L will protect the designated general

use, or a use attainability analysis showing that the designated general use is not an attainable use for

the affected surface water based on one or more of the six factors identified in the Federal regulations

at 40 CFR 131.10(g).

Thank you for the opportunity to review these proposed changes to the sulfate rule proposed by

Illinois EPA. If you have any questions about these comments, please contact me at 312-886-6758,

or your staff may contact David Pfeifer of my staff at 312-353-9024.

Very truly yours,

Linda Hoist, Chief

Water Quality Branch

,t'S5

Peeled on Receded Paper

STATE OF ILLINOIS

COUNTY OF SANGAMON

PROOF OF SERVICE

1, the undersigned, on oath state that I have served the attached

COMMENTS OF THE

ILLINIOS ENVIRONMENTAL PROTECTION AGENCY

upon the person to whom it is

directed, by placing a copy in an envelope addressed to:

John Therriault, Assistant Clerk

Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

(OVERNIGHT MAIL)

Mathew Dunn

Illinois Attorney General's Office

Environmental Control Division

James R. Thompson Center

100 West Randolph Street

Chicago, Illinois 60601

(FIRST CLASS MAIL)

Attached Service List

(FIRST CLASS MAIL)

Marie E. Tipsord

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, Illinois 60601

(OVERNIGHT MAIL)

Jonathan

Fun

Illinois Department of Natural Resources

One Natural Resources Way

Springfield, Illinois 62702-1271

(FIRST CLASS MAIL)

and mailing it from Springfield, Illinois on December 3, 2007, with sufficient postage affixed as

OFFICIAL SEAL

NOTARY PUBLIC, STATE OF ILLINOIS

!“:“:“11":”POSSIO

commtssmErRp

*****+

11-3-2009

0- A

SUBSCRIBED AND SWORN TO BEFORE ME

this day of Decem er 3, 2007.

t—Q\l'C\3(

Notary Public