BEFORE THE ILL lOIS POLLUTIO. CONTROL BOARD
IN THE MA
TIER OF:
)
)
WATER QUALITY STANDARDS AND )
EFFLUENT LIMITATIO S FOR THE
)
CmCAGO AREA WATERWAY SYSTEM)
A
lD LOWER DES PLAINES RIVER:
)
PROPOSED
AMEl'iTIMEl\TTS TO 35 ILL. )
ADM. CODE 301, 302, 303 AND 304
)
R08-09
(Rulemaking
- Water)
QUESTIO S SUBMITTED ON BEHALF
OF EXXONMOBIL OIL CORPORATION
These questions are submitted for response by the illinois Environmental
Protection Agency ("Agency") witness[es] at the scheduled Chicago, lllinois, January
28
through February 1, 2008 hearings in this proceeding. They address proposed changes
which could adversely affect the ExxonMobil Oil Corporation'sJoliet Refinery ("Joliet
Refinery") located at I-55 Bridge and Arsenal Road
in Channahon, lllinois. The subject
matter
of these questions is as they appear in order in the Agency's Statement of Reasons.
Questions will pertain to the completeness
of the proposal, submission of
technical data to support the Agency's proposal, proposed water quality and recreational
standards for the Lower Des Plaines River and the Upper Brandon Island Pool segment
into which the Joliet Refinery discharges, and questions regarding the Agency's
information on economic reasonableness for proposing
to apply water quality standards
that directly impact the discharge from the Joliet Refinery.
We request that the Agency provide answers to the specific questions raised
in
this submittal.
In
addition, the Joliet Refinery reserves its right to conduct follow-up
questioning
of the Agency witnesses, and requests that the Hearing Officer allow such
questioning to occur
in an orderly manner.
Electronic Filing - Received, Clerk's Office, January 23, 2008
I.
STATUTORY BASIS Al\'D LEGAL FRAMEWORK
A.
Illinois Environmental Protection Act
I.
The TIlinois Environmental Protection Act ("Act") states that in
considering the Agency's rulemaking proposal, the
TIlinois Pollution Control Board
("Board") is required to take into account whether the Agency has sufficiently addressed
the following required criteria:
"... the existing physical conditions, the character of the
area involved, including the character
of surrounding land uses, zoning classifications,
the nature
of existing air quality, or receiving body of water, as the case may be, and the
technical feasibility and economic reasonableness
of measuring or reducing the particular
type
of pollution." 415 lLCS 5127(a).
a.
How has the Agency addressed the issue of surrounding land uses
in its rulemaking proposal?
If
the Agency has addressed this issue, has the
Agency provided
in its rulemaking proposal all data or other information on
which it relied in considering surrounding land uses?
If
the Agency has not
addressed this issue,
or has not provided all data or other information on which it
relied, can the Agency provide a response that does address this issue and/or does
provide such data and information?
b.
How has the Agency addressed the issue of technical feasibility in
its rulemaking proposal?
If
the Agency has addressed this issue, has the Agency
provided
in its rulemaking proposal all data or other information on which it
relied in considering surrounding technical feasibility?
If
the Agency has not
addressed this issue, or has not provided all data or other information on which it
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Electronic Filing - Received, Clerk's Office, January 23, 2008
relied, can the Agency provide a response that does address this issue and/or does
provide such data and information?
c.
How has the Agency addressed the issue of economic
reasonableness in its rulemaking proposal?
If
the Agency has addressed this
issue, has the Agency provided in its rulemaking proposal all data or other
information
on which it relied in considering economic reasonableness?
If
the
Agency has not addressed this issue, or has not provided all data or other
information
on which it relied, can the Agency provide a response that does
address this issue and/or does provide such data and information?
B.
Applicable Board Regulations and Regulatorv Historv
1.
Some of the uses of the Lower Des Plaines River cited to establish the
Secondary Contact classification in the 1968 Sanitary Board's approval
of Regulation
SWB-15 are still
of concern today. They include: commercial vessel and barge shipping,
recreational boating transit, and withdrawal and return
of industrial cooling and process
water. How did these uses
of the Lower Des Plaines River affect the Agency'sdecisions
on what recreational use designations to propose for the Lower Des Plaines River? How
did these uses
of the Lower Des Plaines affect the Agency's decisions on what aquatic
life use designations to propose for the Lower Des Plaines River? Has the Agency
included
in its rulemaking proposal all data and other information on which it or its
contractors relied to analyze these issues?
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Electronic Filing - Received, Clerk's Office, January 23, 2008
II.
REGULATORY PROPOSAL: PURPOSE Al\'D EFFECT
A.
Introduction Description and
Riston of the Chicago Area
Waterwav Svstem (CAWS) and Lower Des Plaines River
1.
The Agency'sStatement of Reasons states that: "The Lower Des Plaines
River was modified from its original configuration to accommodate shipping traffic and
increase flow for the CAWS." Shipping traffic continues
in
this viable commercial
waterway, and the waterway is considered one of the most used waterways
in the
country, but neither the Agency nor its contractors has provided detailed data on traffic
volume or safety issues in the waterway. Can the Agency provide the data it used
in
determining the impact of the proposed water quality and recreational use standards on
shipping in the Lower Des Plaines River?
B.
Description of the Lower Des Plaines River and CAWS - Reach
Geographv and Hvdrological Function
1.
The Statement of Reasons defines the Upper Dresden Island Pool of the
Lower Des Plaines River
as an 8.1
mile
reach of the impoundment that is upstream of the
I-55 Bridge and
pan of the UAA. It further states that the Upper Dresden Island Pool is
more natural than the Upper Brandon Island Pool and has a fair amount of natural
shoreline and side channels.
1
either the
UAA
nor the proposal define what a "fair
amount" is, nor
do they establish what percentage of shoreline is owned by industry/city
versus public access land. Can the Agency provide this information?
2.
The Agency's general statement about "natural shoreline" in the Upper
Dresden Island Pool implies a non-industrialized area, while further
on Page 17 of the
Agency's Statement
of Reasons, the Agency states that the waterway is one of the busiest
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Electronic Filing - Received, Clerk's Office, January 23, 2008
inland commercial navigation systems in the nation. How are these statements
consistent?
C.
Description of the Secondary Contact and Indigenous Aquatic Life
Use Designations
1.
Some of the characteristics that lead to the establishment of the Secondary
Contact Use and Indigenous Aquatic Life Use designations for the Upper Dresden Island
Pool
in the early 1970s still exist: most adjacent property is commercially owned and
access is limited, the main channel is used daily throughout the year for commercial
barge traffic, and the waterway carries a massive wastewater loading, including CSO's
during wet weather.
If
these situations still exist, why is Upper Dresden Island Pool
Recreational Use being proposed
as "Incidental Contact Recreation" rather than the next
level of "Non-Contact Recreation"?
2.
Per the Aqua Nova summary of the UAA, the Lower Des Plaines River
continues
to be a highly modified water body that does not resemble its pre-urbanized
state. Furthermore, the UAA stated that while there were improvements, it did not find
the Lower Des Plaines River to be capable
of full attainment of the aquatic life and the
recreational goals of the CWA for unimpacted waters
in the foreseeable future. Since
this contradicts the findings of the later Yoder report being used for the Agency's
proposal, what findings have required the Agency to propose water quality standards
more stringent than the State'scurrent "General Use" requirements for this waterbody?
3.
In its Statement of Reasons, the Agency states that it believes that this
regulatory proposal establishes comprehensive stand-alone use designations and water
quality standards necessary
to protect those uses. As a result, the Agency expects there
will be no need to reopen these uses and standards when changes
in the general use
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Electronic Filing - Received, Clerk's Office, January 23, 2008
category are considered for the rest of the state. Does the Agency expect that these
standards will not
be required for statewide use in the future?
III.
REGULATORY PROPOSAL: REGULATORY LANGUAGE
1.
Incidental Contact Recreation - The Agency'sStatement of Reasons
indicates that recreational use surveys and other forms of research were conducted during
the UAA process to determine which specific activities were taking place on the
waterways and need to be protected. How was this analysis performed with regard
to the
Lower Des Plaines River? ExxonMobil cannot locate any reference in the Agency's
rulemaking proposal
to such surveys or research for the Lower Des Plaines River - can
the Agency provide the surveys and research on which it relied? (The Agency's
Statement
of Reasons at page 25 cites to "Attachment Bat 1-11," but Attachment B does
not relate
to the Lower Des Plaines River.)
2.
Incidental Contact Recreation - Is it the Agency's position that the use of
the Upper Dresden Island Pool for commercial barge traffic poses no safety risk
to
persons who might use the waterway for incidental contact recreation uses?
If
that is not
the Agency's position, what risks are posed
to persons who would use the waterway for
recreational purposes?
If
that
i2
the Agency's position, can the Agency provide the data
or other information on which it relied
to reach this conclusion?
3.
on-Contact Recreation - What are the reasons that the Agency did not
propose
to designate the Upper Dresden Island Pool as. Ton-Contact recreation? In
making this determination, did the Agency consider the volume of commercial barge
traffic in this waterbody? Did the Agency consider the numerous industrial facilities that
discharge
to this waterbody? Did the Agency consider the minimal number of access
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Electronic Filing - Received, Clerk's Office, January 23, 2008
points in the waterbody? Is the Agency aware that in the recent past, wakes from
commercial traffic have caused fatalities in the Upper Dresden Island Pool? If so, did the
Agency consider that fact in detennining not to propose
to designate the Upper Dresden
Island Pool
as on-Contact recreation?
4.
Security -
At page 36 of its Statement of Reasons, the Agency notes that
recreational uses of the waterways at issue in this
rulemaking may be affected by
"Special Homeland Security issues" that "may apply
to Port District Properties." Has the
Agency considered the impact that security measures
in place at facilities on the Lower
Des Plaines River would have on recreation in the waterway? Has the Agency otherwise
reviewed safety and security risks within the specific discharge areas of the Lower Des
Plaines River facilities?
If
the Agency has conducted any of these reviews, did it do so in
conjunction with the impacted facilities or in conjunction with the appropriate federal
and/or state agencies with jurisdiction over security issues at these facilities?
5.
The Agency notes at page 37 of its Statement of Reasons that:
Existing recreational uses in CAWS and Lower Des Plaines River were
detennined from:
1)
Waterway surveys performed by UAA contractors and
stakeholders;
2)
Public input at UAA and other public meetings; and
3)
Input during numerous phone, letter, e-mail, UAA website
... and
other meeting inquiries.
Has the Agency
in its rulemaking proposal provided all written documentation that
resulted from these activities?
If
not, can the Agency provide such documents?
6.
Allowed Mixing, Mixing Zones and ZIDs - The proposal provides that all
proposed water quality standards must be met at every point outside of any area volume
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Electronic Filing - Received, Clerk's Office, January 23, 2008
of a receiving water within which mixing is allowed. Midwest Generation discharges
from four facilities into the CAWS and the Lower Des Plaines, and has an Adjusted
Standard for temperature that applies to these discharges and that extends in the Lower
Des Plaines River approximately five miles past the I-55 Bridge. Other dischargers
discharge into the waters affected by Midwest Generation's discharge.
If
the water
temperature within this area does not comply with the Agency's proposed temperature
standards as a result
of Midwest Generation's discharge, would these other dischargers be
allowed to utilize a mixing zone for their discharges?
If
not, how would these
dischargers attain compliance with the proposed thermal limits?
7.
What is the purpose
of adopting "Acute Standards," "Chronic Standards,"
and "Human Health Standards" in proposed Section 302.407 directly from the parallel
provisions in Section 302.208 - Numeric Standards for Chemical Constituents, which
applies to General Use waters?
8.
Given that the Aqua ova's UAA proposed a "Modified Use" standard for
the Lower Des Plaines River due to its current use, why has the State'srulemaking
proposal set "General Use" water quality standards for each
of the following constituents:
arsenic, cadmium, chromium, copper, cyanide, lead, mercury, nickel, total residual
chlorine, zinc, benzene, ethyl benzene, toluene, and xylene?
9.
On what did the Agency rely in deciding to propose "General Use" water
quality standards for chlorides, iron, selenium, and sulfates?
10.
In
formulating its final proposed rules, did the Agency seek information
from all impacted facilities regarding the technical feasibility and economic impact of
complying with the rules?
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Electronic Filing - Received, Clerk's Office, January 23, 2008
11.
In
its Statement of Reasons, the Agency indicates that in the CAWS and
Lower Des Plaines, the Agency "expects that there will be violations
of the [proposed]
chloride standard during the winter months when road salting takes place." How has the
Agency determined the effect
of industrial dischargers on chloride levels in the
waterways, and differentiated between those effects and surface runoff? Has the Agency
considered the ability
of dischargers to comply with the proposed new chloride standard
for these waters?
12.
Temperature - The proposal establishes a period average and a daily
maximum temperarure
limit, as opposed to the current standard which includes only a
daily maximum. The rationale for the period average is that it would recognize "the
realities
of within season temperature variations and the thermallOlerances of fish."
Statement
of Reasons at 86. The period average would change twice per month during
five months out
of the year, and monthly during the rest of the year. Did Mr. Yoder's
study and the Agency's proposal take into account the operational impact to a facility that
would be required to adjust its discharge every two weeks for five months
of the year in
order to comply with the changing temperature limit?
13.
If
the proposed rules are promulgated as proposed by the Agency, and the
CAWS
or the Lower Des Plaines are found not to be in compliance with the new thermal
or other limits, would the Agency designate these waterbodies as in "nonattainment"
status for such
limits?
If
yes, would such a designation then lead to the development of
Total Maximum Daily Loads (TMDLs) for these waterbodies?
14.
Does the Agency consider the General Use thermal
limits protective of all
uses in general use waters
in the State?
If
yes, why is the Agency proposing monthly
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Electronic Filing - Received, Clerk's Office, January 23, 2008
thennal standards in the Upper Brandon Island Pool that are more stringent than the
current State "General Use" standard?
15.
What scientific and technical support did Mr. Yoder and the Agency
utilize to determine that excursions from the proposed temperature criteria should be
capped at 2%
of the time?
If
the current General Use excursion is capped 1% and
Secondary Contact Use at 5%, why not set the cap at 3% in these rules, especially since a
more stringent thennal standard is being proposed?
IV.
OTHER QUESTIO S RELATING TO THE PROPOSAL
1.
On June 6, 2002 and July 18,2002, the Three Rivers Manufacturing
Association (''TRMA'')submitted letters to the Agency regarding its members' concerns
related to the initial UAA process and the State'seffort to change the Lower Des Plaines
River waterway from Secondary Contact
Use to General Use. Did the Agency ever
respond to these letters?
If
not, can the Agency provide a response to the issues raised in
these letters?
2.
Proper planning, budgeting and construction
of control equipment are
essential to ensure compliance with any rulemaking.
To avoid duplication and minimize
the socio-economic impact to the facilities located on these waterways, all studies,
including the recently approved AIWA should be completed before adopting the
proposed revised water quality standards. What is the planned completion date
of the
AIWA study, and how does that relate to the date by which facilities would have to
comply with these rules?
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Electronic Filing - Received, Clerk's Office, January 23, 2008
3.
What is the Agency's proposed implementation plan for transitioning from
the current Secondary Contact standards
to the proposed new standards? How and when
would this transition occur?
4.
Other than Midwest Generation and the MWRDCG, has the Agency
in its
rulemaking proposal discussed the economic impact
to dischargers to the CAWS and the
Lower Des Plaines and how long it may take for those dischargers
to obtain, install and
test control equipment necessary
to comply with these rules?
5.
Prior to the February 2007 open meetings established by the Agency, the
CAWS and Lower Des Plaines River systems were being treated
as separate proposals.
Why is the Agency seeking
to combine all these waterways into a single rulemaking?
6.
Would the Agency be amenable to revising this rulemaking such that
waterway segments that have the highest water quality/recreational use potential (CAWS
other than the
CSSe) are addressed first, and more time for modeling and input is
available for waterways with lower water quality/recreational use potential (CSSC and
the Lower Des Plaines River)?
If
not, why not?
Respectfully submitted,
EXXOl\TMOBIL OIL CORPORATIO
January 18,2008
Michael Cannon, Esq.
Refinery Attomey
ExxonMobil Oil Corporation
I-55 Bridge and Arsenal Road
Channahon, IL 60410
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Electronic Filing - Received, Clerk's Office, January 23, 2008
