BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
IN THE MATTER OF:
)
)
WATER QUALITY STANDARDS AND )
EFFLUENT LIMITATIONS FOR THE
)
R08-09
CHICAGO AREA WATERWAY SYSTEM )
(Rulemaking - Water)
AND LOWER DES PLAINES RIVER
)
PROPOSED AMEN DMENTS TO 35 ILL. )
ADM. CODE 301, 302, 303 AND 304
)
NOTICE OF FILING
TO:
SEE ATTACHED SERVICE LIST
Take notice that today I filed an Appearance and Questions Submitted by the Chemical
Industry Council of Illinois with the Clerk of the Illinois Pollution Control Board.
Dated: January 18, 2008
Respectfully submitted,
CHEMICAL INDUSTRY COUNCIL OF
ILLINOIS
By:
/s/Kevin B. Hynes
Kevin B. Hynes
O’KEEFE LYONS & HYNES, LLC
30 N. LaSalle Street, Suite 4100
Chicago, Illinois 60602
(312) 621-0400
Electronic Filing - Received, Clerk's Office, January 18, 2008
2
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
IN THE MATTER OF:
)
)
WATER QUALITY STANDARDS AND )
EFFLUENT LIMITATIONS FOR THE
)
R08-09
CHICAGO AREA WATERWAY SYSTEM )
(Rulemaking - Water)
AND LOWER DES PLAINES RIVER
)
PROPOSED AMENDMENTS TO 35 ILL. )
ADM. CODE 301, 302, 303 AND 304
)
APPEARANCE
I, Kevin B. Hynes, enter my appearance on behalf of the Chemical Industry Council of
Illinois.
Dated: January 18, 2008
Respectfully submitted,
CHEMICAL INDUSTRY COUNCIL OF
ILLINOIS
By:
/s/ Kevin B. Hynes
Kevin B. Hynes
O’KEEFE LYONS & HYNES, LLC
30 N. LaSalle Street, Suite 4100
Chicago, Illinois 60602
(312) 621-0400
Electronic Filing - Received, Clerk's Office, January 18, 2008
3
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
IN THE MATTER OF:
)
)
WATER QUALITY STANDARDS AND )
EFFLUENT LIMITATIONS FOR THE
)
R08-09
CHICAGO AREA WATERWAY SYSTEM )
(Rulemaking - Water)
AND LOWER DES PLAINES RIVER
)
PROPOSED AMENDMENTS TO 35 ILL. )
ADM. CODE 301, 302, 303 AND 304
)
QUESTIONS SUBMITTED BY THE CHEMICAL INDUSTRY COUNCIL OF ILLINOIS
The Chemical Industry Council of Illinois (“CICI”) submits its preliminary comments
and questions regarding the Water Quality Standards and Effluent Limitations for the Chicago
Area Waterway System and the Lower Des Plaines River: Proposed Amendments to 35 Ill. Adm.
Code 301, 302, 303, and 304.
The CICI is a not-for-profit, statewide association, which represents 203 corporations,
including more than 100 chemical firms that manufacture, blend, distribute and sell chemicals.
The Illinois chemical industry ranks third in the United States in chemical exports, fourth in
value of chemical shipments, directly employees more than 50,000 people, with another 300,000
people that are employed in related industries. Moreover, approximately 1.8 million Illinois
employees in other industries depend on chemical products or 31.1% of all jobs in Illinois.
Many of CICI’s members depend on the Illinois Waterway System for their business. The Port of
Chicago is ranked 32
nd
out of the 200 U.S. Ports and annually moves over 25 million tons of
goods through the port. In 2005, the chemical industry moved approximately 17.7 million tons
of the 25 million tons in the form of petroleum and chemicals.
CICI and its members have a significant interest in any proposed rulemaking dealing with
changes to the water quality standards and effluent limitations. CICI objects to this rulemaking
in its entirety and requests that the proposal be withdrawn. As pointed out below and the many
comments submitted by other parties that use this waterway system, this proposal sorely lacks a
connection between what the Illinois EPA proposes and the realities of this waterway.
COMMENTS/QUESTIONS
1. The proposal is a monumental undertaking for the regulated community, the Illinois EPA,
and the Pollution Control Board.
Indeed, this proposal could have wide-ranging
economic impacts. Is there any intention of applying these standards, if enacted, to other
waters of the State of Illinois?
Electronic Filing - Received, Clerk's Office, January 18, 2008
4
2. The Chicago Area Waterway System (CAWS) and Lower Des Plaines River comprise a
vast and varying aquatic and navigational system, did the Agency consider breaking this
proposal into more narrowly tailored segments rather than one massive proposal?
3. This proposal has standards for constituents such as temperature that will have major
economic impacts on those that use the CAWS or Lower Des Plaines. Has the Agency
considered subdividing this larger proposal into more manageable constituent-based
proposals? If so, why was that option rejected?
4. The proposal currently before the Board differs from that submitted to the Governor in
draft form in January 2007.
•
Is the Agency prepared to discuss those changes and the basis for the
changes?
•
Who participated in drafting the changes?
5. In pre-filed testimony, the Agency states that the CAWS and Lower Des Plaines River’s
“. . . potential continues to be
somewhat
tempered by its unique physical and habitat
characteristics as well as lingering, albeit diminishing, legacy contamination from prior
decades of neglect.”
Rob Sulski
at p. 4 (emphasis added). Is the Agency’s position
consistent with other statements that “irreversible human caused conditions and
circumstances” limit aquatic life potential and recreation?
6. The Agency recognizes that the Board will need to consider additional data before a
decision can be made on this proposal.
Scott Twait
at 15. Indeed, the Metropolitan
Water Reclamation District, in conjunction with the University of Illinois at Chicago, is
embarking on a multi-year study of the CAWS. Why is the Agency refusing to wait for
the collection of additional data that will better clarify some of the issues at hand?
7. The Agency “recommends to defer setting numerical standard (sic) for bacterial
parameters for all three of the proposed recreational use designations proposed pending
completion of additional scientific evaluations.”
Statement of Reasons
at 42. Why is the
Agency willing to wait for this data, but not data collected for other parts of this
proposal?
8. The Agency states that it networked with stakeholder groups in developing this proposal.
Rob Sulski
at p. 10.
•
Which stakeholder groups?
•
Did the Agency consult with local governments along the CAWS or the
Lower Des Plaines?
•
Did the Agency consult with individual industria l users, other than Midwest
Generation, on the CAWS or the Lower Des Plaines?
Electronic Filing - Received, Clerk's Office, January 18, 2008
5
•
Did the Agency consult with the Coast Guard?
•
Did the Agency consult with the Illinois Department of Transportation?
•
Did the Agency consult with the U.S. Department of Homeland Security?
For each of these questions, what information or data was obtained from each
“stakeholder”?
9. The Agency recommends waterway flow agumentation, effluent cooling and effluent
disinfection as options for overcoming limitations due to dissolved oxygen, temperature,
and bacteria limitations. The cost to implement these recommendations could be
staggering, if not prohibitive.
Did the Agency independently examine the cost
implications for each recommendation? If so, is the Agency prepared to testify about
those costs? If not, why was cost not considered as required by Section 27(a) of the Act,
415 ILCS 5/27(a)?
10. As proposed, Section 302.401 states that the Subpart B (General Use) and Subpart C
public water supply standards do not apply to the CAWS or the Lower Des Plaines.
When put side-by-side, however, the Subpart D standards are identical or more stringent
than the Subpart B General Use standards. Indeed, in several parts of the
Statement of
Reasons
the Agency notes that it is adopting the General Use Standard. If these waters
do not have to comply with Subpart B General Use standards, why are they subject to the
same or more stringent standards?
11. Why are general use standards being proposed in light of Agency statements/findings
such as “. . . it is not uncommon for some portions of the CAWS to experience changes in
depth of four to six feet in a 24 to 48 hour period and rapid changes in flow velocity.
Such rapid fluctuations result in sediment scouring and resuspension plus alternate drying
and wetting of shoreline habitat for aquatic life.”
Statement of Reasons
at 33. Are the
proposed standards set so low as to guaranty failure?
12. The Agency admits that it “expects that there will be violations of the chloride standard
during the winter months when road salting takes place. . . .”
Scott Twait
at 9.
Essentially, the Agency is saying that it knows that there are problems with the proposal,
but it will fix it after the proposal is promulgated. If the Agency knows that there will be
violations, why is that not already accounted for in the proposed standard?
13. Growth estimates indicate that in Will County alone population will be approximately
800,000 by 2012 and over 1 million by 2030. Did the Agency consider the impacts of
population growth on the quality of the CAWS or Lower Des Plaines?
14. The Agency relies heavily on the Ohio IBI. Did the Agency compare the Illinois IBI and
the Ohio IBI for other impounded reference sites before deciding to rely on the Ohio IBI?
Electronic Filing - Received, Clerk's Office, January 18, 2008
6
15. In its prefiled testimony the Agency states that:
“[d]eveloping the Agency’s proposal to the Board for thermal
water quality standards was one of the most challenging aspects of
the rule development process and there will likely be additional
information developed in the Record of this proceeding that the
Board will have to consider in making a final decision.”
Scott Twait
at 15. This statement raises several questions such as:
•
What additional information does the Agency anticipate being presented to the
Board?
•
Could the Agency have developed this information?
•
Are the Board, the Agency and the regulated community better served by
waiting until that information is developed before proceeding with this
rulemaking?
16. What is the point at which something becomes “an adverse socio-economic impact”?
Id.
at 22.
17. Section 301.282 defines “Incidental Contract Recreation,” to include small craft
recreational boating. CICI understands that jet skiing is considered an incidental contact
recreational use.
•
Is jet skiing more akin to swimming in its exposure risk?
•
How prevalent is jet skiing on the waters designated as incidental contact
recreation waters?
•
What does “infrequently” mean in Attachment B at 1-11?
•
Did the Agency consider the safety risks attributed to promoting incidental
contact recreation such as jet skiing in areas utilized by barges such as in the
Calumet Sag Channel?
18. The Agency recognizes that contaminated sediments are significant concern.
Statement
of Reasons
at 68-69. If that is the case, is it practical to expect compliance with the
proposed standards in the waterways impacted by contaminated sediment?
19. The Agency states that “[i]t is believed that these concentrations will continue to decrease
as contaminated sediment stabilizes or is covered by cleaner sediment.”
Id.
at 69.
•
At what rate is the concentration decreasing?
Electronic Filing - Received, Clerk's Office, January 18, 2008
7
•
How long will it take before a “safe” level is contaminated sediment is
reached?
•
Is this statement reasonable given the Agency’s recognition that contaminated
sediment is regularly disturbed by barge traffic?
20. “The population equivalent (or P.E.) of effluent discharge carried by the canal to Des
Plaines River is about 9.5 million. The now completed tunnel portion of the Tunnel and
Reservoir Project (or TARP) today has significantly reduced the number of CSO
discharges per year. With full implementation of the reservoir portion of [the TARP], the
frequency of overflows will be further reduced.”
Statement of Reasons
at 17.
•
Is there any benefit to waiting on this proposal until the reservoir portion of
the TARP is complete?
•
Is there any reason not to wait until the reservoir portion of the TARP is
complete?
•
Does that 9.5 million include all NPDES dischargers or just Midwest
Generation and MWRD?
21. Did the Agency consider the technical feasibility and economic reasonableness of the
proposal as it applies to entities other than Midwest Generation or the MWRD?
•
If so, which entities?
•
What were the Agency’s findings?
•
Where are those findings documented?
Respectfully submitted,
CHEMICAL INDUSTRY COUNCIL OF
ILLINOIS
By:
/s/Kevin B. Hynes
Kevin B. Hynes
O’KEEFE LYONS & HYNES, LLC
30 N. LaSalle Street, Suite 4100
Chicago, Illinois 60602
(312) 621-0400
Electronic Filing - Received, Clerk's Office, January 18, 2008
8
CERTIFICATE OF SERVICE
I, Kevin B. Hynes, an attorney, certify that on January 18, 2008, I caused the foregoing
Notice of Filing, Appearance, and Questions Submitted by the Chemical Industry Council of
Illinois to be served on the following people by the following methods:
By Electronic Mail (via IPCB)
John Therriault, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Suite 11-500
Chicago, IL 60601
Marie Tipsord, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Suite 11-500
Chicago, IL 60601
By First Class U.S. Mail
Matthew Dunn, Chief
Environmental Bureau
Office of the Attorney General
100 W. Randolph, 12
th
Floor
Chicago, IL 60601
Stefanie N. Diers
Deborah J. Williams
Assistant Counsel
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Bill Richardson
Chief Legal Counsel
Illinois Department of Natural Resources
One Natural Resources Way
Springfield, IL 62702-1271
/s/Kevin B. Hynes
Kevin B. Hynes
Electronic Filing - Received, Clerk's Office, January 18, 2008
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