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Ke th Harley, Chicago Legal Clinic,

RECEIVED

CLERKS OFFICE

JUN 2 6 2008

STATE OF ILLINOIS

Pollution Control Board

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

WATER QUALITY STANDARDS AND

EFFLUENT LIMITATIONS FOR THE

)

R08-9

CHICAGO AREA WATERWAY SYSTEM

(Rulemaking — Water)

AND THE LOWER DES PLAINES RIVER:

PROPOSED AMENDMENTS TO 35 ILL..

ADM. CODE PARTS 301, 302, 303 and 304

NOTICE OF FILING

To: see attached Service List

PLEASE TAKE NOTICE that on the 26" Day of June, 2008, I filed with the Office of

the Clerk of the Illinois Pollution Control Board the attached Response to the

Metropolitan Water Reclamation District of Greater Chicago's Motion To Stay, a copy of

which is hereby served upon you.

By:

Dated: June 26, 2008

Keith Harley

Chicago Legal Clinic, Inc.

Keith Harley, Chicago Legal Clinic,

CERTIFICATE OF SERVICE

I, Keith Harley, the undersigned attorney, hereby certify that I have served the attached

Response to the Metropolitan Water Reclamation District of Greater Chicago's Motion

To Stay, on all parties of record (Service List attached), by depositing said documents in

the United States Mail, postage prepaid, from 227 W. Monroe, Chicago, IL 60606, before

the ho

:00 p.m., on this 26 th Day of June, 2008.

Service List

Richard J. Kissel and Roy M. Harsch

Drinker, Biddle, Gardner, Carton

191 N. Wacker Drive, Suite 3700

Chicago, IL 60606-1698

Deborah J. Williams and Stefanie N. Diers

Assistant Counsel, Division of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

Kevin G. Desharnais, Thomas W. Diamond

and Thomas V. Skinner

Mayer, Brown LLP

71 South Wacker Drive

Chicago, IL 60606-4637

Robert VanGyseghem

City of Geneva

1800 South Street

Geneva, IL 60134-2203

Matthew J. Dunn, Chief

Office of the Attorney General

Environmental Bureau North

69 West Washington, Suite 1800

Chicago, IL 60602

Charles W. Wesselhoft and James T. Harrington

Ross & Hardies

150 North Michigan Avenue

Suite 2500

Chicago, IL 60601-7567

Bernard Sawyer and Thomas Granto

Metropolitan Water Reclamation District

6001 West Pershing Road

Cicero, IL 60650-4112

James L. Daugherty, District Manager

Thom Creek Basin Sanitary District

700 West End Avenue

Chicago Heights, IL 60411

Tracy Elzemeyer, General Counsel

American Water Company Central Region

727 Craig Road

St. Louis, MO 63141

Claire Manning

Brown, Hay & Stephens LLP

700 First Mercantile Building

205 South Fifth St., P.O. Box 2459

Springfield, IL 62705-2459

Katherine D. Hodge, Monica T. Rios and Thomas Safley

Hodge Dwyer Zeman

3150 Roland Avenue

P.O. Box 5776

Springfield, IL 62705-5776

Margaret P. Howard

Hedinger Law Office

2601 South Fifth Street

Springfield, IL 62703

Jerry Paulsen and Cindy Skrukrud

McHenry County Defenders

132 Cass Street

Woodstock, IL 60098

Keith I. Harley and Elizabeth Schenkier

Chicago Legal Clinic, Inc.

Freeman, Freeman 7 Salzman

401 N. Michigan Avenue

Chicago, IL 60611

Lisa Frede

Chemical Industry Council of Illinois

2250 E Devon Avenue

Suite 239

Des Plaines, IL 60018-4509

Sharon Neal

Commonwealth Edison Company

125 South Clark Street

Blackwell Sanders LLP

4801 Main Street

Suite 1000

Kansas City, MO 64112

Traci Barkley

Prairie Rivers Networks

1902 Fox Drive

Suite 6

Champaign, IL 61820

James Huff, Vice-President

Georgie Vlahos

Huff & Huff, Inc.

Naval Training Center

915 Harger Road, Suite 330

2601A Paul Jones Street

Oak Brook, IL 60523

Great Lakes, IL 60088-2845

Cathy Hudzik

City of Chicago, Mayor's Office of Intergovernmental Affairs

121 North LaSalle Street

City Hall – Room 406

Chicago, IL 60602

Irwin Polls

Ecological Monitoring and Assessment

3206 Maple Leaf Drive

Glenview, IL 60025

Marc Miller, Senior Policy Advisor

Jamie S. Caston, Policy Advisor

Office of Lt. Governor Pat Quinn

Room 414 State House

Springfield, IL 62706

Dennis L. Duffield

Director of Public Works & Utilities

City of Joliet, Department of Public Works & Utilities

921 E. Washington Street

Joliet, IL 60431

Ann Alexander, Senior Attorney

Natural resources Defense Council

101 North Wacker Drive, Suite 609

Chicago, IL 60606

Beth Steinhom

2021 Timberbrook

Springfield, IL 62702

Frederick D. Keady, RE., President

Dr. Thomas J. Murphy

Vermillion Coal Company

DePaul University

1979 Johns Drive

2325 N. Clifton Street

10 S. LaSalle Street, Suite 3600

Chicago, IL 60603

Marie Tipsord, Hearing Officer

John Therriault, Assistant Clerk

Illinois Pollution Control Board

100 West Randoph, Suite 11-500

Chicago, IL 60601-7447

Vicky McKinley

Evanston Environmental Board

25 East Washington, Suite 1650

Chicago, IL 60602

Albert Ettinger, Senior Staff Attorney, and Jessica Dexter

Environmental Law and Policy Center

35 E. Wacker Drive, Suite 1300

Chicago, IL 60601

Susan Hedman and Andrew Armstrong, Environmental Counsel

Environnmental Bureau

Office of the Illinois Attorney General

69 West Washington, Suite 1800

Chicago, IL 60602

Kenneth W. Liss

Andrews Environmental Engineering

3300 Ginger Creek Drive

Springfield, IL 62711

Bob Carter

Bloomington Normal Water Reclamation District

P.O. Box 3307

Bloomington, IL 61702-3307

Ronald M. Hill and Margaret T. Conway

Metropolitan Water Reclamation District of Greater Chicago

100 East Erie Street, Room 301

Chicago, IL 60611

Frederic P. Andes, Carolyn S. Hesse and David T. Ballard

Barnes & Thornburg LLP

One North Wacker Drive, Suite 4400

Chicago, IL 60606

Tom Muth

Fox Metro Water Reclamation District

682 State Route 31

Oswego, IL 60543

Jack Darin

Sierra Club, Illinois Chapter

70 E. Lake Street, Suite 1500

Chicago, IL 60601-7447

Kay Anderson

American Bottoms RWTF

One American Bottoms Road

Sauget, IL 62201

Kristy A.N. Bulleit and Brent Fewell

Hunton & Williams LLC

1900 K. Street, NW

Washington, DC 20006

Jeffrey C. Fort and Ariel Tescher

William Richardson, Chief Legal Counsel

Sonnenschein Nath & Rosenthal LLP

Illinois Department of Natural Resources

7800 Sears Tower

One Natural Resources Way

233 S. Wacker drive

Springfield, IL 62702

Chicago, IL 60606-6404

) (Rulemaking – Water)

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

RECE

CLERK'S

IVE

OFFICE

IN THE MATTER OF:

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 PARTS 301, 302, 303 and 304

THE SOUTHEAST ENVIRONMENTAL TASK FORCE'S RESPONSE TO

METROPOLITAN WATER RECLAMATION DISTRICT OF GREATER

CHICAGO'S MOTION TO STAY IPCB R08-9

Pursuant to 35 HI. Adm. Code 101.514 and 101.500(d), Keith Harley of the Chicago

Legal Clinic, Inc. on behalf of his client, the Southeast Environmental Task Force,

respectfully submits this Response to the Metropolitan Water Reclamation District of

Greater Chicago's Motion to Stay.

The Southeast Environmental Task Force ("SETF") opposes the Motion To Stay filed

by the Metropolitan Water Reclamation District of Greater Chicago ("MWRDGC") for

several reasons.

First, MWRDGC's primary contention in support of a stay is that the existing

evidence in the record in support of the rule is inadequate. However, MWRDGC's

conclusion that a stay is therefore justified is premature and incorrect. It is premature

because a major, legally required component of this rulemaking – the opportunity of

participants other than the Illinois Environmental Protection Agency ("IL EPA") to

present testimony and written comments – is not complete. If granted, a stay would

prematurely terminate the evidence-gathering in this rulemaking that is necessary for the

Board

to evaluate the arguments that MWRDGC or any other participant might make

about the merits of proposed rule. For its part, SETF plans to present witnesses regarding

recreational uses of the Calumet River system and the parks and recreational areas

through which the Calumets flow. SETF believes this testimony and SETF's subsequent

post-hearing comments will help inform the Board's evaluation of IL EPA's use

designations and corresponding proposal for MWRDGC to disinfect pathogen-containing

effluent from its Calumet Wastewater Treatment Plant. It would be inappropriate for the

Board to stay this proceeding based on the MWRDGC's characterization of the

weaknesses of the proposed rule without providing a full and complete opportunity for

the completion of evidence-gathering in a manner consistent with Board regulations. 35

Ill. Adm. Code 101.628; 35 Ill. Adm. Code 102.108.

Second, the Board should not accept MWRDGC's characterization of the law that

controls this case. In response to MWRDGC's assertions regarding the legal deficiencies

of IL EPA's case in support of its proposed rule, SETF believes it is important to point

out that the Board is authorized to, and frequently will, issue regulations that:

•

control only one source category among several that are sources of a pollutant;

•

control discharges despite collateral, indirect environmental impacts related to

operating pollution control equipment;

•

control discharges because of a potential threat to human health or the

environment, without any showing of actual harm that has already occurred;

•

control discharges from a source category even if this may not lead to a direct

or one-to-one reduction in the exposure rate of any receptor or group of

receptors;

•

control discharges from a source category even if its relative contribution to

cumulative discharges of a pollutant is comparatively small; and/or

• implement requirements even though regulated entities assert they will bear

costs, face technical uncertainties, are unconvinced that any benefits can be

achieved and state a strong preference to study the matter in a non-regulatory

setting.

See, for example,

In The Matter Of Proposed New 35 III.Adm.Code 255 – Control Of

Emissions From Large Combustion Sources (Mercury),

R06-25.

SETF's assessment of the legal requirements that are driving this case are very

different than MWRDGC's assertions. Simply, IL EPA is under a non-discretionary duty

originating in the Clean Water Act to assess Illinois waters to ensure these waters are safe

for the people and wildlife using them, now and in the future, until the waters are fully

fishable and swimmable. 33 U.S.C. §1313(c)(1); 40 CFR 131.10(j)(1). In fulfillment of

this duty, IL EPA engaged in a years-long, multi-stakeholder process to assess the present

and attainable uses of the CAWS, concluding that uses of the CAWS have changed since

these waters were originally classified decades ago. New recreational uses trigger a

Clean Water Act-based mandate to ensure the CAWS are safe for these uses. 33 U.S.C.

§1313(c)(2)(A); 40 CFR §131.10(i). MWRDG's wastewater treatment plants are sources

of pathogens into waters that are being used for recreation. Disinfection is almost

uniformly employed at POTWs in Illinois and throughout the United States to control

these kinds of pathogens. Consequently, it is difficult to afford any value to MWRDGC's

broad claims that disinfection is technically infeasible or will result in substantial and

widespread economic and social impact.

From SETF's perspective, IL EPA's proposal designates the uses for which the

CAWS shall be maintained and protected, prescribes the water quality standards required

to sustain these designated uses, and establishes effluent standards to limit the

contaminants discharged to the CAWS. In doing so, IL EPA is acting well within its

legal mandate under both federal and Illinois law. 35 111. Adm. Code 301.102; see also

33 U.S.C. §1370.

Third, granting a stay would be fundamentally unfair to the participants in this

rulemaking. As of June 23, 2008, the Board received 72 public comments on the

proposed rule. Additionally, on June 16, 2008, 44 individuals provided testimony under

oath regarding the proposed rule. In September, for the first time, the environmental

organizations that are participants in this proceeding will be given an opportunity to

present their testimony and evidence in support of the proposed rule. Against this

backdrop, viewed cynically, the timing of the Motion To Stay seems calculated to allow

existing public testimony about current uses of the CAWS to go stale by putting it on the

shelf for years. Viewed cynically, the timing of the Motion To Stay seems calculated to

prevent the environmental advocates and others from presenting evidence in support of

the IL EPA proposal. Viewed cynically, the Motion To Stay would afford MWRDGC

additional years of delay and the opportunity to prepare its case in opposition at its

leisure. Whether viewed cynically or not, granting MWRDGC's Motion To Stay after

accepting, even inviting, public participation in this rulemaking process could irreparably

damage public trust and confidence in the Board itself.

There is reason to take a cynical view of the timing of the Motion To Stay and, in turn,

for the Board to enter an Order that will discourage this kind of tactic. The MWRDGC

has every reason to want the public testimony now before the Board to go stale. For

example, on June 16th , of the 44 individuals who in good faith accepted the Board's

invitation to testify in this proceeding, 43 provided testimony in support of requiring

disinfection. The vast majority of the 72 public commentators who have submitted

written comments to the Board offer evidence and/or support for upgrading water quality

in a manner that is consistent with, or exceeds, the IL EPA proposal. Most public

testimony is accompanied by descriptions of intense, present day recreational uses of the

CAWS entirely consistent with the IL EPA's basis for upgrading water quality standards

and requiring disinfection. It is clearly in MWRDGC's narrow self interest for the Board

to put this public testimony on the shelf in the hope it will no longer be as relevant when

the rulemaking resumes. However, this is clearly against the public interest, against the

interests of people who provided this testimony, and against the Board's interest in

gaining value from public testimony given in good faith in service to the Board's

deliberative process.

Granting the Motion to Stay would also allow MWRDGC to subvert a rulemaking

process that dozens of participants have engaged in good faith. Many of the internal

MWRDGC activities that it cites as the basis for a stay have been underway for years and

will take many more years to complete. Yet, MWRDGC allowed this rulemaking to

continue for almost nine months, including several days of hearings, before making its

Motion To Stay. Notably, in its Motion to Stay, the MWRDGC painstakingly creates a

record of the many shortcomings it perceives in IL EPA's presentation of its case.

Viewed cynically, it appears MWRDGC would like this rulemaking to continue just to

the point where it could create a record of its arguments in opposition, but no further.

Having seen the IL EPA's case and having capped the record with its arguments in

opposition, MWRDGC would be content to spend the next several years ruminating on

this matter. At a minimum, this means a delay for years; even better for the Movant, it

means MWRDGC will have years to prepare for its presentation of its case in opposition.

While this tactical maneuver may be consistent with MWRDGC's narrow self-interest, it

callously disregards, and would squander, the thousands of hours of time Board

members, Board staff, IL EPA staff, other participants and members of the public have

cumulatively invested in good faith in this rulemaking.

Granting a Motion to Stay in the middle of this proceeding would damage public trust

and confidence in the Board. The rulemaking now before the Board is succeeding in

generating public interest and participation from businesses, elected officials,

representatives of units of local government, residents and the full range of users of the

waterways. Even the most cursory review of testimony reveals that many of these

stakeholders support disinfection. Many of the participants in this process cite to the

affirmative mandates of the Clean Water Act requiring public officials to ensure waters

are safe for the people and wildlife using them, now and in the future, until the waters are

fully fishable and swimmable. Other participants express a more urgent concern about

increasingly intense recreational uses of waters polluted with pathogens which are

discharged in MWRDGC's effluent every day of every year. Against this backdrop, it is

clearly in the narrow self interest of MWRDGC to attempt to put a stop to a proceeding

in which it is increasingly isolated in its position, seeking for itself the luxury to ruminate

on this matter indefinitely. Yet, the risk is that a stay would be ascribed to the Board that

issues it, not to the one participant in a rulemaking who selfishly asks for it. The risk is

that the Board, not MWRDGC, will be regarded as responsible for allowing additional

years of otherwise avoidable human contact with pathogens in the CAWS and to acting in

opposition to the public interest mandate of the Clean Water Act.

For the foregoing reasons, the Southeast Environmental Task respectfully requests the

Illinois Pollution Control Board to deny the Metropolitan Water Reclamation District of

Greater Chicago's Motion to Stay.

Respectfully Submitted,

Keith Harley

Chicago Legal Clinic, Inc.

Attorney for the Southeast Environmental Task Force

Date: June 26, 2008