BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
WATER QUALITY STANDARDS AND
EFFLUENT LIMITATIONS FOR THE
CHICAGO AREA WATERWAYS SYSTEM
AND THE LOWER DES PLAINES RIVER:
PROPOSED AMENDMENTS TO 35 Ill. Adm.
Code Parts 301, 302, 303 and 304
)
)
)
)
)
)
)
)
)
)
R08-09
(Rulemaking- Water)
PRE-HEARING MEMORANDUM
Environmental Law & Policy Center, Natural Resources Defense Council, Prairie Rivers
Network and Sierra Club believe that it would be helpful to clarify at this time the Clean Water
Act principles regarding water body use designations that govern consideration of the
designations and the necessary protections of the CAWS and Lower Des Plaines River. It is
clear there is confusion regarding the facts and issues relevant to the use designation decision
now before the Illinois Pollution Control Board.
First, some may suggest in this hearing that since these waterways have been altered, they
are not worth protecting or are entitled to less protection under the Clean Water Act. The fact is
the Clean Water Act still applies.
The Clean Water Act was enacted in 1972 with a stated goal that all of the nation’s
waters should support healthy aquatic life and the full range of human uses possible in water,
including fishing, swimming and other forms of recreation. 33 U.S.C. § 1251(a)(2). The Clean
Water Act applies to
all
navigable waters in the United States, regardless of whether the
watercourse has been modified by humans or is in other respects manmade (as is the case with
parts of the CAWS). 33 U.S.C. § 1362(7) and
Headwaters, Inc. v. Talent Irrigation Dist.
, 243
F.3d 526, 533-34 (9
th
Cir., 2001) (Even irrigation canals are “waters of the United States.”). As
stated by Linda Holst, Branch Chief of the Water Quality Branch of Region 5 of the United
States Environmental Protection Agency, in her remarks to the Metropolitan Water Reclamation
District of Greater Chicago on October 31, 2007:
There were statements made about the waterways, they’re channels
and they’re not natural streams[. … U]nder federal regulations
they’re navigable waters, and they are waters of the U.S. and do
1
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
still have to meet the requirements of the Clean Water Act.”
(Transcript of MWRDGC Study Session, Oct. 31, 2007, p. 213,
Holst remarks are attached as Ex. A).
Further, there is a rebuttable presumption that a waterbody should support fishable and
swimmable uses.
Kansas Natural Resource Council v. Whitman
, 255 F. Supp. 2d 1208, 1209 (D.
Kan. 2003);
Idaho Mining Ass’n v. Browner
, 90 F. Supp. 2d 1078, 1097-98 (D. Idaho 2000). In
other words, it is assumed that fishing, swimming, and other recreational activities could take
place in any water body---and the water body should be designated for those uses---unless the
state shows (using one of the six specific factors described below) that those uses could not take
place in a particular water body. Water quality criteria must then be established that protect
those uses. If a state seeks to designate a water body in a manner that it will not be protected for
the full range of recreational (e.g. swimming, fishing boating) and aquatic life uses that are
presumed to be attainable, it must conduct a Use Attainability Analysis (UAA) that demonstrates
that those uses are not attainable and determine the highest achievable uses. 40 C.F.R. §
131.10(j)(1).
Under the UAA regulations, there are only six ways that a state can rebut the presumption
of fishability/swimmability.
See
40 CFR §131.10(g). Most of these six reasons have to do with
physical limitations of the water body. It is our understanding that Illinois EPA in its proposal
believes that some uses are not attainable because of physical constraints in some portions of the
CAWS and the Lower Des Plaines. A major issue in the proceeding will be whether it has been
demonstrated in the entire portion of the water body that Illinois EPA claims suffers from the
proffered constraints.
While some interested parties may argue that the proposed standards should not apply to
them because of economic reasons, only one of the six regulatory factors allows for
consideration of economic factors and then only under the most extreme circumstances. Under
131.10(g)(6), a use does not have to be designated for protection if the pollution controls “would
result in substantial and widespread economic and social impact.” This is a test of affordability,
not a cost-benefit analysis. See U.S. EPA, Interim Economic Guidance for Water Quality
Standards - Workbook, available at http://www.epa.gov/waterscience/standards/econworkbook/
(“Demonstration of substantial financial impacts is not sufficient reason to modify a use or grant
a variance from water quality standards. Rather, the applicant must also demonstrate that
2
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
compliance would create widespread socioeconomic impacts on the affected community.”) As
explained by U.S. EPA’s Holst:
There was a question about the widespread social and economic
impact and this would be the federal test, if you want to use that,
that tests to either remove a use or say that a full
fishable/swimmable use is not attainable. That is not the same
thing as a cost benefit. It’s an affordability test … . Oct., 31, 2007
Transcript p. 214, see Ex. A.)
Indeed, Metropolitan Reclamation District General Superintendent Richard Lanyon
noted in a prior study session on October 10, 2007 that “[MWRDGC] ha[s] not conducted a
formal economic analysis according to the EPA’s guidance. We have looked at this informally.
We believe we don’t meet the criteria that the EPA has set out, whether that criteria is objective
or not.” (Transcript of MWRDGC Study Session, Oct. 10, 2007, p. 82, Lanyon Statement
attached as Ex. B).
In short, economic factors are of little or no relevance to the use-designation question and
the UAA must proceed with the proposed use re-designation of the CAWS and Lower Des
Plaines River even though there may be significant economic costs associated with it.
Further, from some past discussions and some of the recently filed pre-filed comments it
is also clear that some interested parties are overly focused on what recreation and aquatic life
the CAWS and Des Plaines River now have. This confuses the purpose of this UAA proceeding
that relates primarily to what uses of the water are
attainable
rather than what the water body is
being used for now. For example, even if in a hypothetical water body no kayaking were taking
place because of pollution, the water body would have to be protected for kayaking (and the
pollution abated that currently interferes with this use) if kayaking
could
take place on that water
body. In other words, if kayaking is not precluded by one or more of the six factors applicable to
recreational use designations referenced above, kayaking is an attainable use and must be
protected.
For this reason, studies that focus on the risks of using of the water body as it is used now
are of very limited relevance to the use designation question. Further, studies of the level of
recreational use now are of limited relevance because they do not tell us what the level of
kayaking, fishing, wading or other activity would be if people believed that the water was safe.
Simply put, the relevant question is not how many people are becoming ill from current levels of
3
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
use of a polluted waterbody, but how many would become ill if it were used to the same extent
as a cleaner waterbody.
Further, it is likely that much will be made of the importance of risk assessments and
epidemiological studies. While these types of studies are useful in other ways, they are not
relevant to the discussion of what uses are
attainable
in the CAWS. The goal of an
epidemiological study is to determine how many people are getting sick as a result of current
uses, not what uses would be attainable if the current risks were addressed through effluent
treatment technology. Certainly, there is no reason to postpone determining what is attainable in
order to allow more detailed consideration of what has already been attained. No epidemiological
study can define the types of recreational uses (including significant contact uses) that
may be
attainable
throughout the CAWS in the future, which is the question before the PCB based on
the analysis required by 40 C.F.R. §131.10.
Similarly, studies of the fish species currently present in the lower Des Plaines River do
not show what species could be present in the absence of heat pollution and other controllable
human impacts on the river. The fact that a species of fish or other form of aquatic life is not
present in the Lower Des Plaines shows only that that species cannot live in that water body as it
is now treated. It does not say whether that aquatic life would be there with better pollution
control.
Respectfully submitted,
/s/
Ann Alexander
Jessica Dexter
Albert Ettinger
Staff Attorney
Staff Attorney
Senior Staff Attorney
NRDC
ELPC
ELPC and Counsel for the Sierra
Club
4
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
ELPC EXHIBIT A
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
METROPOLITAN WATER RECLAMATION DISTRICT
OF GREATER CHICAGO
Board Room
100 East Erie Street
Chicago, Illinois
Wednesday, October 31, 2007
10:03 o'clock a.m.
VOLUME
I1
Veritext Chicago Reporting Company
3 12-442-9087
800-248-3290
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
STUDY SESSION
COMMITTEE ON INDUSTRIAL WASTE AND WATER POLLUTION
METROPOLITAN WATER RECLAMATION DISTRICT
OF GREATER CHICAGO
*
*
*
*
*
Held on Wednesday, October 31, 2007,
commencing at the hour of
10:03 o'clock a.m., in the
I
Board Room, 100 East Erie Street, Chicago, Illinois,
Ms. Patricia Horton, Chairman, presiding.
Present:
Board of Commissioners:
MS PATRICIA HORTON, Chairman
MR. TERRENCE J. O'BRIEN, President
MR. FRANK AVILA
MRS. GLORIA ALITTO MAJEWSKI
MRS. BARBARA J.
McGOWAN
MS. KATHLEEN T. MEANY
MS. CYNTHIA M. SANTOS
MS. DEBRA SHORE
MS. PATRICIA YOUNG
Veritext Chicago Reporting Company
3 12-442-9087
800-248-3290
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
Also Present:
Mr. Richard Lanyon, General Superintendent
Mr. Frederick
M. Feldman, Attorney
Ms. Jacqueline Torres, Director of
Finance/Clerk
Members of the staff
Members of the press
Members of the public
Veritext Chicago Reporting Company
3 12-442-9087
800-248-3290
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
that due to the bacteria
--
PRESIDENT O'BRIEN: That's not the
question. The question is do you know of any of
those people that are recreating that way, are they
becoming sick or
--
MR. DeYOUNG: No, I don' t.
PRESIDENT O'BRIEN:
--
ill because of
their contact with the water?
MR.
DeY-OUNG: No, I do not.
COMMISSIONER HORTON:
Commissioner Meany.
COMMISSIONER MEANY: Mr. Lanyon, I know at
one point we discussed having
signage along the
river just alerting people so that they realize that
they could become ill, and
I was just wondering in
the area that was just mentioned out south, do we
have
signage posted there?
MR. LANYON: Yes, we do.
COMMISSIONER
MEANY: Thank you.
COMMISSIONER HORTON: Okay. Next, our
next speaker is Linda Holst.
MS. HOLST: I'm Linda Holst. I work at
the U.S. Environmental Protection Agency. I know we
were mentioned several times today, so I thought I
would come up and clarify a few things.
Veritext Chicago Reporting Company
31 2-442-9087
800-248-3290
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
When Illinois actually adopts their
revised water quality standards for the Chicago area
waterways, my program would be the one that would be
reviewing those.
There were statements made about the
waterways, they're channels and they're not natural
streams and that under federal regulations they're
navigable waters, and they are waters of
U.S. and do
still have to meet the requirements of the Clean
Water Act.
There was a question about
EPA's
recommendation for secondary recreational criteria.
We do not have a criterion for secondary rec. Our
criterion is for primary contact recreation. We
have approved criteria across the country for
secondary recreation which had been based on primary
where people have taken usually somewhere between
five times and ten times the primary recreational
.
criteria, applied that to secondary recreational
waters.
When Illinois had originally done a draft
standards package, there was a secondary rec
criterion based on one of those factors, and we had
told them at that time that was acceptable to us.
Veritext Chicago Reporting Company
312-442-9087
800-248-3290
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
And the study that folks mentioned for EPA revising
its current primary recreation criteria, that will
not come up with the second recreational criteria.
So I just want to clarify that. The
current guidance that
we are doing that folks
mentioned in response to litigation in the Beach
Act, that is primary only, not secondary recreation.
There was a question about the widespread
social and economic impact, and this would be the
federal test, if you want to use that, that tests to
either remove a use or say that a full
fishable/swimmable use is not attainable. That is
not the same thing as cost benefit. It's an
affordability test, so it looks at the median
household income of the area that would be impacted.
So I want to make sure that
--
I know there was cost
benefit information. That may or may not be useful
to any decision makers, but that's not the same
thing as what the federal requirements, if that's
the criteria that people want to use to justify
something less than full
fishable/swimmable.
And then I know there was an issue, I know
it's a very real issue about the cost of
disinfection and trying to get funds for that and
Veritext Chicago Reporting Company
312-442-9087
800-248-3290
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
competing with the need to get money to finish TARP,
and
I know this is obvious, but I just thought it
needed to be said that there are other cities that
do disinfect, they're dealing with
CSOs at the same
time, and it's not an easy thing to do; but you
know, cities like Indianapolis and other cities
around the country are grappling with the same thing
you're trying to do here.
And then finally, there was a statement
about disinfection, is it a question of if or when
and how; and if you can get beyond the if and the
folks
--
I mean EPA would be more than happy to
engage in the discussions on the when and the how
with the District and the State and City. So I just
wanted to offer that.
COMMISSIONER HORTON: Thank you very much.
Next we have Sue Lannin.
MS. LANNIN: Actually my name is
Sue Lannin, not Lanyon. I'm not related to the
Superintendent.
I wish I were of course.
I am Sue Lannin. I'm in my second year of
graduate study in community development at North
Park University, and I want to say thank you for
having this open session where citizens can come and
Veritext Chicago Reporting Company
312-442-9087
800-248-3290
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
ELPC EXHIBIT B
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
Board Room
100 East Erie
Chicago, Illinois
STUDY SESSION
COMMITTEE ON INDUSTRIAL WASTE AND WATER POLLUTION
METROPOLITAN WATER RECLAMATION DISTRICT
OF GREATER CHICAGO
Wednesday, October 10, 2007
10:35 a.m.
Veritext Chicago Reporting Company
312-442-9087
800-248-3290
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
STUDY SESSION
COMMITTEE ON INDUSTRIAL WASTE AND WATER POLLUTION
METROPOLITAN WATER RECLAMATION DISTRICT
OF GREATER CHICAGO
*
*
*
*
Held on Wednesday, October 10, 2007,
commencing at the hour of
10:35 a.m., in the
Board Room, 100 East Erie, Chicago, Illinois,
Ms. Patricia Horton, Chairman, presiding.
PRESENT
:
MS.
MR.
MR.
MS.
MS.
MS.
MS.
MS.
PATRICIA HORTON, Chairman
TERRENCE J. O'BRIEN, President
FRANK AVILA
GLORIA ALITTO MAJEWSKI
BARBARA J.
McGOWAN
CYNTHIA M. SANTOS
DEBRA SHORE
PATRICIA YOUNG
Veritext Chicago Reporting Company
312-442-9087
800-248-3290
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
Members of the staff
Members of the press
Members of the public
Veritext Chicago Reporting Company
3 12-442-9087
800-248-3290
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
downstream secondary contact to proposed
nonrecreational, are those downgrades is my
question?
MS. ALEXANDER: Yes. The part that is
upstream of North Side is in fact in some respects
getting a use downgrade. That's not directly
relevant to the question of disinfection, but
nonetheless, what you just said is accurate.
COMMISSIONER SHORE: Okay. And another
question and this one perhaps directed to
Mr. Lanyon, in Ann's testimony she said the District
has not provided the analysis outlined in the
USEPA's economic guidance. Have we ever done that
kind of analysis or is one under way?
MR. LANYON: We have not conducted a
formal economic analysis according to the
EPA's
guidance. We have looked at this informally. We
believe we don't meet the criteria that the EPA has
set out, whether that criteria is objective or not.
I
COMMISSIONER SHORE: And finally, Ann, let
1
me ask you to respond to the proposition that some
might make, that the Cal-Sag Channel or the Sanitary
I
Ship Canal are man-made vehicles to convey effluent,
I
they're not a natural waterway, what's your response
Veritext Chicago Reporting Company
312-442-9087
800-248-3290
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
CERTIFICATE OF SERVICE
I, Albert F. Ettinger, the undersigned, hereby certify that I have served the
attached PRE-HEARING MEMORANDUM OF ENVIRONMENTAL LAW & POLICY
CENTER upon:
Mr. John T. Therriault
Assistant Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street
Suite l1-500
Chicago, Illinois 60601
via electronic mail on January 23, 2008; and upon the attached service list by depositing said
documents in the United States Mail, postage prepaid, in Chicago , Illinois on January 18, 2008
Respectfully Submitted,
Albert Ettinger
Senior Staff Attorney
Environmental Law & Policy Center
35 E. Wacker Dr., Suite 1300
Chicago, IL 60601
aettinger@elpc.org
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
James L. Daugl~erty
Thorn Creelc Basin Sanitary District
700 West End Avenue
Clicago Heights, IL 604 1 1
Sharon Neal
Commonwealth Edison
125 South
ClarIc Street
Chicago, IL 60603
Tracy Elzemeyer
American Water Company
727
Craig Road
St. Louis, MO 63 141
Margaret
P. Howard
Hedinger Law Office
2601 South Fifth Street
Springfield, IL 62703
Irwin Polls
Ecological Monitoring and Assessment
3
206 Maple Leaf Drive
Glenview, IL 60025
James
Huff
Huff
&
Huff, Inc.
9 15 Harger Road, Suite 330
Oak Brook,
IL
60523
William Richardson
Chief Legal Counsel
Illinois Department of Natural Resources
One
IVatural Resource Way
Springfield,
IL 62702
Jeffrey C. Fort
Ariel J. Tesher
Sonnenschein Nath
&
Rosenthal LLP
7800 Sears Tower
233
S. Waclcer Drive
Chicago, LL 60606-6404
Dr.
Thomas J. M~uphy
2325 N. Clifton St
Chicago, IL 6061 4
B etl~ S tei~lllorn
2021 Timberbroolc
Springfield, IL 62702
Ann Alexander
Natural Resources Defense Council
101 N. Wacker Dr
Suite 609
Chicago, IL 60606
Cathy
Hudzik
City of Chicago
Mayor's
Office of Intergovernmental Affairs
121 North
LaSalle Street, Room 406
Chicago, IL 60602
Traci
Barldey
Prairie Rivers Networlcs
1902 Fox Drive, Suite 6
Champaign, IL 6 1820
Thomas V. Skinner
Thomas W. Dimond
Kevin Descharnais
Mayer Brown LLP
71 South Waclcer Drive
Chicago,
L
60606
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
Robert VanGysegl~em
City of Geneva
1800 South St
Geneva, IL 60 134-2203
Jerry Paulsen
Cindy
Slcruluud
McHenry
County Defenders
132 Cass Street
Woodstoclc, IL 60098
Matthew Dunn
Office
of the Attorney General
Environmental Bureau North
69 West Washington Street
Suite 1800
Chicago, IL 60602
Albert Ettinger
Freeman Freeman
&
Salzman
40 1 N. Michigan Ave
Chicago,
IL 6061 1
Bernard Sawyer
Thomas Granto
Metropolitan Water Reclamation District
6001 W.
Pershing Rd
Cicero,
IL 60650-4 1 12
Lisa Frede
Chemical Industry Council of Illinois
2250 .E. Devon Ave
Suite 239
Des Plaines, IL 6001 8-4509
Fredric Andes
Erika P owers
Barnes
&
Thornburg
1 North Waclcer Dr
Suite 4400
Chicago, IL 60606
Jack Darin
Sierra Club
70 E.
Lake St
Suite 1500
Chicago, IL 6060 1-7447
Bob Carter
Bloomington
Norma1 Water Reclamation
PO Box 3307
Bloomington, IL 6 1702-3307
Tom
Muth
Fox Metro Water Reclamation District
682 State Route 3 1
Oswego, IL 60543
Kennetl~ W. Liss
Andrews Environmental Engineering
3300 Ginger Creek Drive
Springfield, IL 627 1 1
Albert Ettinger
Jessica Dexter
Environmental Law
&
Policy Center
35 E. Waclcer
Suite 1300
Chicago, IL 6060 1
Viclcy McKinley
Evanston Environmental Board
223 Grey Avenue
Evanston, IL 60202
Marc Miller
Jamie S.
Caston
Office
of Lt. Governor Pat Quinn
Room 41 4 State House
Springfield, IL 62706
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
SERVICE LIST R08-09
Marie Tipsord, Hearing Officer
Illinois Pollution Control Board
100 West Randolpl~ St
Suite 1 1-500
Chicago, IL 60601
Frederick Feldrnan
Ronald Hill
Louis
Kollias
Margaret Conway
Me.tropolitan
Water Reclamatiol~ District
100 East Erie St
Cllicago, IL 606 1 1
Ricl~ard Kissel
Roy Harsch
DrinlcerBiddle
19 1 N. Wacker Dr.
Suite
3700
Chicago, IL 60606-1 698
Claire Manning
~rown Hay
&
Stephens LLP
700 First Mercantile
Banlc Bldg
205
S. Fifth St
Springfield, IL
62705-2459
Deborah J. Williams
Stefanie N. Diers
Illinois EPA
1 02
1 Nortll Grand Avenue
Springfield, IL 62794-9276
Katherine Hodge
Monica
Rios
Hodge Dwyer Zeman
3 150 Roland Avenue
Springfield, IL 62705-5776
Charles
Wessell~oft
James EIarrington
Ross
&
Hardies
1 50 N. Michigan Ave
Clicago, IL 60601-7567
Dennis L.
Duffi eld
Director of Public
Worlcs
&
Utilities
City of
Joliet
92 1 E. Washington St
Joliet, IL 6043 1
Keith Harley
Elizabeth Scherzlcier
Clicago
Legal Clinic, Inc.
205 West Monroe Street
4"' Floor
Clicago, IL 60606
Frederick Keady
Verrnillion Coal Company
1979
Jolms Drive
Glenview, IL 60025
Fred L.
Hubbad
P.O. Box 12
16 West Madison
Danville, IL 6 1834
Georgia
Vlal~os
Naval Training Center
2601A Paul Jones St
Great
Lalces, IL 60088-2845
W.C. Blanton
Blackwell Sanders LLP
4801 Main St
Suite 1000
Kansas City, MO 641
12
Kay Anderson
American Bottoms
One
American Bottoms Road
Sauget,
IL 62201
Electronic Filing - Received, Clerk's Office, January 22, 2008
* * * * PC #1 * * * * *
