BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
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
necelveo
CLERK'S
OFFICE
JUN 3 0 2008
R08(Rulemaking
-
09 –
P
STATE
tigli
OF
Control
IL
LINOIS
Board
NOTICE OF FILING
To: John
Therriault, Clerk
Marie Tipsord, Hearing Officer
James R. Thompson Center
Illinois Pollution Control Board
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
SEE ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that I have filed today with the Illinois Pollution
Control Board Illinois EPA's Response to MWRDGC's Motion to Stay IPCB R08-9, a
copy of which is herewith served upon you.
Dated: June 26, 2008
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCy..„
B
YKLL
(Call t
4
Stefanie N. Diers
/
sistant Counsel
THIS FILING
IS
SUMBITTED ON RECYCLED PAPER
RECEIVED
CLERK'S
OFFICE
JUN 3 0
2008
STATE OF ILLINOIS
R08-09
Pollution Control Board
(Rulemaking – Water)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
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 III.
Adm. Code Parts 301, 302, 303 and 304
ILLINOIS EPA'S RESPONSE TO METROPOLITAN WATER RECLAMATION
DISTRICT OF GREATER CHICAGO'S MOTION TO STAY IPCB R08-9
The Illinois Environmental Protection Agency ("Illinois EPA") hereby
submits its response to the Metropolitan Water Reclamation District of Greater
Chicago's ("MWRDGC") Motion to Stay IPCB R08-9. In support of its Motion,
Illinois EPA states as follows:
1. On June 12, 2008, MWRDGC filed its Motion to Stay with the Illinois
Pollution Control Board ("Board").
2.
On June 16, 2008, the Illinois EPA received MWRDGC's Motion to
Stay R08-9.
3.
MWRDGC states that a stay should be granted so that Illinois EPA
can: (1) receive, consider and analyze the studies that are going to be submitted
by MWRDGC in the next few years; (2) collect any other information that is
needed to complete a supportable analysis; and (3) submit the complete
rulemaking proposal to the Board with all relevant supporting information, so the
Board can make a fully-informed and soundly-based decision.
4.
MWRDGC's Motion to Stay should be denied.
1
5.
MWRDGC cites to Board opinions that state the Board has "inherent
authority to grant a stay in certain circumstances". (See MWRDGC's Motion to
Stay P. 4). Illinois EPA does not dispute the Board's authority to grant a stay;
however, MWRDGC cites to no cases where the Board has granted a motion to
stay in a regulatory proceeding or a regulatory relief proceeding without support
of Illinois EPA.
6. MWRDGC also states there are four situations where the Board
typically grants a Motion to stay. (Id.) However, this four part test or list cited by
MWRDGC is not found in the cases cited in their Motion. If one was to apply this
list or four part test to the case at bar, MWRDGC's Motion would fail. A stay at
this stage of the process would not save time, expenses or resources. It would
cause practical difficulties. Also, there are not pending proceedings that would
be duplicated by the work of the parties in this proceeding. Finally, it would not
assist the Board in its final determination to have a multi-year span between
Illinois EPA's testimony and testimony from the regulated community.
7. Illinois EPA has been working on the proposed rulemaking rule since
2000 and MWRDGC has been a participant in this matter from the beginning.
8. Illinois EPA filed a complete rulemaking package with the Board with
on October 26, 2007.
9. The Board accepted Illinois EPA's proposal on November 1, 2007.
10.
Illinois EPA has met all filing requirements under the Environmental
Protection Act and the Illinois Administrative Code when filing its proposal. (See
415 ILCS 5/27 and 35 Illinois Administrative Code 102.200 & 102.202.
2
11.
Illinois EPA has answered numerous questions over a span of 10
hearing days with respect to its proposal. In fact, there have been over 2,500
pages of testimony. Furthermore, Illinois EPA has filed additional information
with respect to its proposal in March and April of 2008.
12.
Illinois EPA has met its burden by the submittal of a very detailed
rulemaking package and answering numerous questions asked at the hearings.
Illinois EPA disagrees that its proposal is deficient as alleged by MWRDGC.
13.
Instead of delaying these proceedings for 2 years or more in hopes
that more relevant information will be produced, it is now time for MWRDGC or
any other party who disagrees with Illinois EPA's proposal to come forward and
present their counter-arguments or proposals to the Board.
14.
Illinois EPA disagrees that the requested delay a delay would
enhance the record or produce needed changes to Illinois EPA's proposal.
15.
As for the studies currently being submitted by MWRDGC, Illinois
EPA is prepared to review these as the rulemaking moves forward. No delay is
needed for such review. If Illinois EPA sees changes are warranted based on a
review of the information this can be done without delaying the process for
another 2 years or more.
16.
MWRDGC makes much of the need for additional information with
respect to bacteria. Illinois EPA recognized in its Statement of Reasons that
states are waiting on U.S. EPA to update the national criteria for bacteria. (See
SOR P. 42-46.) However, Illinois EPA addressed this issue by proposing a
technology based effluent requirement in Part 304 and proposing appropriate
3
designated recreational uses for the CAWS and Lower Des Plaines River. (Id. at
92).
17.
To allow MWRDGC's Motion to Stay at this time would cause further
delay in the Board's decision with respect to the proposed rulemaking and could
be detrimental to the waterway that needs improvements now. Illinois EPA and
the various participants have already dedicated a lot of time and resources to this
rulemaking and to allow a delay for another 2 years or longer seems
unreasonable.
18.
Also, despite MWRDGC's allegation of problems with Illinois EPA's
analysis of economic reasonableness, the Illinois EPA has stated on record and
in its Statement of Reasons that this proposal is economically reasonable and
technically feasible and submitted information related to this issue to the Board.
(Id. at 97-101).
19.
Finally, it would not be appropriate for the Board to order the various
parties to go back to the stakeholder's process. Illinois EPA conducted a very
extensive stakeholders process for this rulemaking. (Id. at 103-105). Illinois EPA
can and will meet with interested parties as the rulemaking proceeds to discuss
ways to narrow the issues of disagreement before the Board.
20.
The proposal is now before the Board and should proceed as
scheduled by the Hearing Officer Order of May 19, 2008.
4
WHEREFORE, the Illinois EPA respectfully requests that MWRDGC's
Motion to Stay IPCB R08-9 be denied.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
Stefanie N. Diers
Assistant Counsel
Division of Legal Counsel
DATED: June
?
, 2008
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Post Office Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
5
Service List for R08-9
Elizabeth Schenkier
Keith Harley
Chicago Legal Clinic, Inc.
205 W. Monroe, 4th Floor
Chicago, IL 60606
Susan M. Franzetti
Franzetti Law Firm P.C.
10 South LaSalle St.
Ste. 3600
Chicago, IL 60603
Katherine D. Hodge
Monica Rios
Thomas G. Safley
Hodge Dwyer Zeman
3150 Roland Ave.
P.O. Box 5776
Springfield, IL 62702
John Therriault, Assistant Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph, Ste 11-500
Chicago, IL 60601
Susan Hedman
Andrew Armstrong
Office of the Attorney General
Environmental Bureau North
69 West Washington Street, Suite 1800
Chicago, IL 60602
Jeffrey C. Fort
Ariel J. Tesher
Sonnenschein Nath & Rosenthal LLP
7800 Sears Tower
233 S. Wacker Drive
Chicago, IL 60606-6404
Ann Alexander
Senior Attorney, Midwest Program
Natural Resources Defense Council
101 North Wacker Dr., Ste. 609
Chicago, IL 60606
Fredrick M. Feldman
Ronald M. Hill
Margaret T. Conway
Metropolitan Water Reclamation District
of Greater Chicago
111 East Erie Street
Chicago, IL 60611
William Richardson, Chief Legal Counsel
Illinois Department of Natural Resources
One Natural Resources Way
Springfield, IL 62705-5776
Marie Tipsord, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph, Ste 11-500
Chicago, IL 60601
Albert Ettinger, Senior Staff Attorney
Jessica Dexter
Environmental Law & Policy Center
35 E. Wacker Dr., Suite 1300
Chicago, IL 60601
Kevin Desharnais
Thomas W. Dimond
Thomas V. Skinner
Mayer Brown LLP
71 South Wacker Drive
Chicago, IL 60606-4637
Service List for R08-9 Continued
Fredric P. Andes
Carolyn S. Hesse
David T. Ballard
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, IL 60606
Brent Fewell
Hunton & Williams LLC
1900 K Street, NW
Washington, DC 20006
Marc Miller
Office of the Lt. Governor, Pat Quinn
Room 414 State House
Springfield, IL 62706
Stacy Meyers-Glen
Openlands
25 E. Washington, Ste. 1650
Chicago, IL 60602
Jack Darin
Cindy Skrukrud
Sierra Club, Illinois Chapter
70 East Lake Street, Ste 1500
Chicago, IL 60601
STATE OF ILLINOIS
SS
COUNTY OF SANGAMON
PROOF OF SERVICE
I, the undersigned, on oath state that I have served the attached
Illinois EPA's Response
to MWRDGC'S Motion to Stay IPCB R08-9
upon the person to whom it is directed by placing it
an envelope addressed to:
John Therriault, Clerk
Marie Tipsord, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
SEE ATTACHED SERVICE LIST
and mailing it First Class Mail from Springfield, Illinois on June 26, 2008, with sufficient
postage affixed.
441
-
1q
i7.-k0
SUBSCRIBED AND SWORN TO BEFORE ME
This 1
91,■215-\IN
day of
2008
Notary Public
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OFFICIAL SEAL
BRENDA BOEHNER
NOTARY PUBUC, STATE OF IWNOIS
MY
COMMISSION EXPIRES 11-3-2009
THIS FILING IS SUBMITTED ON RECYCELD PAPER