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
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R08-09
(Rulemaking- Water)
PUBLIC COMMENT: SUBMISSION OF LETTER FROM USEPA
We wish to call the Pollution Control Board’s attention to a letter dated December 12, 2008 from
Benjamin Grumbles, Assistant Administrator for Water at the United States Environmental
Protection Agency (USEPA), and enter the letter into the record for R08-09.
The letter is a determination that the Missouri Department of Natural Resources (MDNR) must
create new or revised water quality standards for certain segments of the Mississippi River.
Although USEPA has approved MDNR’s definition of “Secondary Contact Recreation,” the letter
finds that MDNR has not sufficiently demonstrated that whole body contact recreation is not
attainable in the segments of the Mississippi River at issue in the letter:
EPA hereby determines that, based on the fact that Missouri has neither adopted
whole body contact recreation designated uses nor provided sufficient information
demonstrating why such a use designation is not attainable, new or revised water
quality standards (i.e. whole body contact recreation) are necessary to meet the
requirements of the CWA for (1) the 1.3-mile segment north of St. Louis that flows
from Dam 27 to North Riverfront Park, and (2) the 164.7-mile segment south of St.
Louis that flows from the confluence with the Meramec River to the confluence with
the Ohio River. In making this determination, EPA also considered public
comments submitted in 2006 and other information available to EPA regarding
recreation in and on these portions of the Mississippi River. This information
indicates that these portions of the River are currently used for recreational activities,
including swimming, canoeing, kayaking and jet-skiing. (Grumbles Letter, page 5).
The letter is provided as an attachment to this submission.
Sincerely,
Jessica Dexter
Environmental Law and Policy Center
Electronic Filing - Received, Clerk's Office, December 19, 2008
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DEC 12 2008
OFFICE OF
WATER
Doyle Childers, Director
Missouri Department
of Natural Resources
P.O. Box 176
Jefferson City, Missouri 65102
Dear Mr. Childers:
This letter constitutes EPA's determination under Clean Water Act (CWA) section
303(c)(4)(B)
as to whether new or revised water quality standards are needed to satisfy the
requirements
ofthe CWA for two ofthree portions ofan existing 195.5-mile segment ofthe
Mississippi River that flows from Dam 27, upstream from St. Louis, down to the confluence with
the Ohio River. This determination addresses whether the northern (upstream) and southern
(downstream) portions
ofthis water body segment should be designated for whole body contact
recreation. Today's determination does not address the third, approximately 30-mile portion
of
this segment in the St. Louis area, which begins at North Riverfront Park and continues
downstream to the confluence with the Meramec River.
EPA hereby determines that new or revised standards are necessary to meet the
requirements
of the CWA for two portions ofthe 195.5-mile segment of the Mississippi River.
The portions
ofthe River that are subject to today's determination include a 1.3-mile segment
upstream from St. Louis that flows from Dam 27 to North Riverfront Park, and a 164.7-mile
segment downstream from St. Louis that flows from the confluence with the Meramec River to
the confluence with the Ohio River. EPA is basing its determination for these portions
ofthe
195.5-mile segment on the fact that the State
of Missouri has neither adopted whole body contact
recreation designated uses for these waters nor provided a use attainability analysis (UAA)
demonstrating why such a use designation is not attainable. The original
UAA submitted by the
Missouri Department
of Natural Resources (MDNR) in 2006 focused on an approximately 30
mile portion
ofthe 195.5-mile segment of the Mississippi River in the St. Louis area, and data
collected
by the State since then has also only focused on the 30-mile portion. The original UAA
did not attempt to demonstrate that whole body contact recreation was not attainable for the
1.3
miles upstream from St. Louis and did not address the 164.7-mile segment downstream from St.
Louis. Although EPA is making this determination today, the State
ofMissouri may
subsequently provide EPA with a demonstration, including any relevant additional data and
information, that whole body contact recreation is not attainable on the portions
of the 195.5
mile segment addressed in today's determination.
lfthe State ofMissouri makes such a
demonstration, EPA will review
any information provided in accordance with the CWA and
federal regulations in concluding whether future action is needed
by either EPA or the State of
Missouri.
Internet Address (URL) • http://www.spa.gov
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Electronic Filing - Received, Clerk's Office, December 19, 2008
* * * * * PC # 177 * * * * *
Statutory and Regulatory Background
Section 303 ofthe CWA requires States and authorized Tribes (hereafter, collectively
referred to as "States") to adopt water quality standards for waters
of the United States within
their respective jurisdictions. Section 303(c) and
EPA's implementing regulations at 40 CFR
part
131 require, among other provisions, that State water quality standards include the
designated use or uses to be made
of the waters and the criteria necessary to protect those uses.
States are required to submit new
or revised water quality standards to EPA for review and
approval or disapproval (CWA section 303(c)(2)(A)).
CWA section 303(c)(4)(B) authorizes the
. Administrator to determine, even in the absence
of a State submission, that a new or revised
standard is needed to meet the requirements
of the CWA. The authority to make a determination
under
CWA section 303(c)(4)(B) is discretionary and resides exclusively with the Administrator,
unless the authority is explicitly delegated by the Administrator.
Section
101 (a)(2) of the CWA states the national interim goal of achieving by July 1,
1983 "water quality which provides for the protection and propagation of fish, shellfish, and
wildlife and
... recreation in and on the water" (hereafter collectively referred to as
.
"fishable/swimmable") wherever attainable.
CWA section 303(c)(2)(A) requires water quality
standards to "protect the public health and welfare, enhance the quality
of water, and serve the
purposes
of this Chapter." EPA's regulations at 40 CFR part 131 interpret and implement these
provisions through a requirement that water quality standards protect section
101 (a)(2) uses
unless those uses have been shown to be unattainable. Unless the State demonstrates that a
fishable/swimmable use is not attainable
on a certain water body, the water body must be
designated as fishable/swimmable. This approach was upheld in Idaho Mining Association
v.
Browner, 90 F.Supp. 2d 1078, 1092 (D. Id. 2000). Thus, where a·State believes that a use
specified in section
101 (a)(2) is not attainable and designates uses that do not included uses
specified in section 101(a)(2), that State must conduct a use attainability analysis. See 40 CFR §
131.100).
The "use"
of a water body is the most fundamental articulation of its role in the aquatic
and human environments, and the water quality protections established by the
CWA follow from
the water body's designated use.
If
a use lower than a CWA section 10
I
(a) goal use is
designated based
on inadequate information or incomplete analysis, water quality-based
protections that might have made it possible for the water to achieve the goals articulated by
Congress in
CWA section 101 (a) may not be put in place. EPA seeks, through the
implementation
of section 303(c) of the Act, to ensure that any State's decision to forgo
protection
ofa water body's potential to support CWA section 101(a) goal uses results from an
appropriately structured scientific analysis
of which uses are attainable. .
Uses are considered by
EPA to be attainable, at a minimum, if the uses can be achieved
(1) when effluent limitations under CWA sections 301(b) and 306 are imposed
on point source
dischargers, and (2) when cost-effective and reasonable best management practices are imposed
on nonpoint sources (40
CFR § 131.1 O(d)). EPA's regulations at 40 CFR § 131.10(g) list the
grounds upon which a State
may demonstrate that a use is not attainable.
.
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Electronic Filing - Received, Clerk's Office, December 19, 2008
* * * * * PC # 177 * * * * *
A UAA is defined at 40 CFR § l3l.3(g) as a "structured scientific assessment of the
factors affecting the attainment
of the use which may include physical, chemical, biological, and
economic factors." In a UAA, the physical, chemical and biological factors affecting the
. attainment
of a use are evaluated through a water body survey and assessment. Guidance on
water body surveys and assessment techniques
is contained in EPA's Technical Support Manual,
Volumes I-III: Water Body Surveys and Assessments for Conducting Use Attainability Analyses
(Volumes I-II, November 1983; Volume III, November 1984). Additional guidance
is provided
in EPA's Water Quality Standards Handbook: Second Edition (EPA-823-B-94-005, August
1994). Guidance on economic factors affecting the attainment
of a use is contained in EPA's
Interim Economic Guidance for Water Quality Standards: Workbook (EPA-823-B-95-002,
March 1995).
In today's determination, EPA concludes that the State
of Missouri has not adequately
supported its decision not to designate a use consistent with CWA section
101 (a) goals for
portions
of the 195.5-miles of the Mississippi River upstream and downstream from St. Louis
and determines that new
or revised water quality standards, Le., whole body contact recreation,
are necessary for those portions. Unless the State demonstrates that whole body contact
recreation is not attainable through a UAA, these portions
of the River must be designated for
whole body contact recreation. At this time, the State has not made such a demonstration.
History
of Missouri's Water Quality Standards Subject to this Determination
On September
8, 2000, EPA acted on Missouri's revised water quality standards adopted
in 1994 and 1996. In that action EPA approved the majority
of the new or revised water quality
standards submitted by MDNR and disapproved certain new
or revised water quality standards.
At that time EPA Region 7 also identified concerns with some of the State's existing water
quality standards, and identified items for attention in the State's next triennial review
of its
existing water quality standards. EPA Region 7 raised certain issues, including Missouri's
failure to address the "swimmable" aspect
of the "fishable/swimmable" goal of the CWA for
certain waterbodies. EPA Region 7 wrote the following in its September 8, 2000 letter:
Since 1984, EPA has expressed its concern with MDNR's approach to classifying
surface waters for whole body contact.
As captured in a document titled, "A
Whole Body Contact Recreation Use Attainability Analysis" (1984),
MDNR's
philosophy since 1967 has been to withhold the designation of surface waters for
whole body contact unless "requested by the public." Although focusing
on
smaller streams, this philosophy apparently extends to all waters, including large
rivers. The lower portion
of the Mississippi River in Missouri and the entire
Missouri River are not designated for whole body contact. Without the necessary
use attainability analysis, the State's failure to meet the requirements
of section
101 (a)(2) of the CWA and its implementing federal regulations has and continues
to be a significant deficiency within Missouri's water quality standards program.
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Electronic Filing - Received, Clerk's Office, December 19, 2008
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EPA indicated that if the State did not either revise its water quality standards in accordance with
the statutory and regulatory requirements or demonstrate by a thorough analysis
ofuse
attainability that whole body contact recreation is not attainable, EPA Region 7 intended to
request that the Administrator make a determination that new or revised standards are needed
pursuant to the Administrator's authority contained in CWA section 303(c)(4)(B).
Following
EPA's September 2000 letter, Missouri did not revise its water quality
standards to address the items that EPA disapproved nor did Missouri address the other items
noted in
EPA's letter. However, EPA Region 7 did not request that the Administrator use the
authority contained in CWA section 303(c)(4)(B) to make a determination for waters lacking
whole body contact recreation
or for any of the other issues where the Region intended to make
such a recommendation. Following this inaction
by the State and EPA, Plaintiff Missouri
Coalition for the Environment (MCE) filed a complaint
on October 7, 2003 against EPA under
the
CWA's citizen-suit provision, CWA section 505(a)(2). The complaint referred to the
September
8, 2000 letter, and alleged that EPA's "disapproval" had triggered a "nondiscretionary
duty," a duty with a firm deadline that EPA had failed to meet, under CWA section 303(c)(4) for
EPA to "promptly prepare and publish proposed regulations" for the State
of Missouri.
In December 2004, EPA and MCE entered into
ajoint consent decree and settlement
agreement to resolve the litigation. The terms
of the consent decree have been satisfied and the
consent decree is not at issue in this determination. This determination addresses one
of the items
included in the settlement agreement. Under the terms
of the settlement agreement, EPA was to
determine, pursuant to CWA section 3
03 (c)(4)(B), whether newor revised water quality
standards are necessary to meet the requirements
of the CWA unless MDNR submitted to EPA
new or revised water quality standards for those items by the dates specified in the settlement
agreement. The settlement agreement specifies that any such determination will address the
issue identified in the settlement agreement, as well as the concerns raised in
EPA's September
8,2000 letter, and that it "will be made by the Administrator or the Administrator's duly
authorized delegate with fully and lawfully delegated authority to make such determinations."
Moreover, the settlement agreement provides that any determination must: (1) be in writing and
set forth the factual and legal basis for the determination, and (2) the writing must also state that
the signatory has the authority to make the determination(s) therein.
On March 28, 2006, MDNR submitted new
or revised water quality standards, satisfying
EPA's obligations under the terms
ofthe settlement agreement for all but one item that had an
April 30, 2006 deadline. For the one remaining item, identified as "Whole Body Contact Use,"
MDNR submitted new or revised water quality standards partially addressing this item on March
28,2006; that is, MDNR adopted water quality standards resulting in a whole body contact
recreation use for approximately 3,600 classified water body segments and 400 classified lakes,
but did not adopt whole body contact recreation uses for the remaining 142 classified water body
segments covered by the settlement agreement. EPA approved the State's designation
of4,000
waters for whole body contact recreation
by letter dated April 28, 2006 from Betty Berry, Region
7's Acting Director of the Water, Wetlands, and Pesticides Division, to Doyle Childers, Director
ofMDNR.
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Electronic Filing - Received, Clerk's Office, December 19, 2008
* * * * * PC # 177 * * * * *
With regard to the 142 waters for which MDNR did not adopt whole body contact
recreation uses, EPA
made a determination on October 31, 2006 for 141 of the 142 waters. At
that time, EPA determined
that new or revised standards were needed for 99 of the 141 waters,
but that new or revised standards were not needed for the other 42
ofthe 141 waters.
The remaining water body that was not part of EPA's October 31, 2006 determination is
the 195.5-mile segment
of the Mississippi River, beginning just upstream of the metropolitan St.
Louis area and flowing to the confluence with the Ohio River.
MDNR had previously
designated this 195.5-mile segment
of the Mississippi River (described in the Missouri water
quality standards, 10
CSR § 20-7, Table H, as: "Mississippi R., Class P, Miles 195.5, From Ohio
River to Dam #27, Counties Mississippi, St. Louis City") for "Boating and Canoeing." In their
March 28,
2006 submission, MDNR revised the "Boating and Canoeing" designated use to
"Secondary Contact Recreation" and included an expanded definition for this recreational use
sub-category. While EPA approved the
new definition for the designated use, EPA has not yet
approved or made a determination
as to whether or not secondary contact recreation is the
highest attainable use for this 195.5-mile segment
ofthe Mississippi River. The current
settlement agreement deadline for EPA to make a determination for this segment is February 27,
2009.
Determination
EPA hereby determines that, based on the fact that Missouri has neither adopted whole
body contact recreation designated uses nor provided sufficient information demonstrating why
such a use designation is not attainable, new or revised water quality standards (i.e., whole body
contact recreation) are necessary to meet the requirements
of the CWA for (1) the 1.3-mile
segment north
of St.. Louis that flows from Dam 27 to North Riverfront Park, and (2) the 164.7
mile segment south
o[St. Louis that flows from the confluence with the Meramec River to the
confluence with the Ohio River. In making this determination,
EPA also considered public
comments submitted in 2006 and other information available to
EPA regarding recreation in and
on these portions
ofthe Mississippi River. This information indicates that these portions of the
River are currently used for recreational activities, including swimming, canoeing, kayaking and
jet-skiing.
EPA makes this determination pursuant to its authority contained in
CWA section
303(c)(4)(B).
EPA's authority to make such a determination is discretionary. In this case, EPA
chose at the time
of entering into the settlement agreement to exercise this discretion in
committing to make such a determination
if MDNR did not submit new or revised water quality
standards by April
30,2006 (deadline for the determination has been extended to February 27,
2009 through subsequent negotiations with MCE). For the purposes
oftoday's determination,
the Administrator has delegated this authority
to me, Benjamin H. Grumbles, EPA's Assistant
Administrator for Water. Thus, pursuant to the settlement agreement, I
am a duly authorized
delegate with fully and lawfully delegated authority to make this determination.
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Electronic Filing - Received, Clerk's Office, December 19, 2008
* * * * * PC # 177 * * * * *
Where EPA concludes that new or revised water quality standards are needed, CWA
section 303(c)(4) requires EPA to "promptly prepare and publish proposed regulations setting
forth a revised or new water quality standard." EPA's strong preference is for States to adopt
their own water quality standards regulations. To that end, EPA strongly encourages the State
of
Missouri to expeditiously revise its own water quality standards, taking into account any
available data. If, in the course
ofpreparing its own regulation, the State identifies or collects
additional data or information that supports a decision that whole body contact recreation is not
appropriate for all or part
of the 1.3-mile portion and/or the 164.7-mile portion subject to today's
determination, the State may present that information and conclusion in a UAA in lieu
of
adopting whole body contact recreation for those portions ofthe water body. In that
circumstance, EPA will review that UAA for consistency with the requirements
of 40 CFR §
131.10 and notify the State
of the results of the Agency's review. If such a UAA supports only
secondary contact recreation for the segments addressed in today's determination, then;
consistent with the federal requirements, the obligation for EPA to prepare proposed replacement
federal regulations will no longer exist. Similarly,
ifthe State adopts whole body contact
recreation for the water body segments addressed in today's determination, and submits such
new or revised water quality standards to EPA for review and approval, Missouri will have
revised its regulations
to be consistent with the federal requirements, and the obligation for EPA
to prepare proposed replacement federal regulations will no longer exist.
EPA recognizes and applauds the substantial effort that MDNR underwent over the last
several years
to adopt water quality standards resulting in recreation uses that are consistent with
the
CWA and EPA's implementing regulations for approximately 3,600 classified stream
segments and 400
class~fied
lakes. EPA also applauds the State's ongoing efforts to resegment
and redesignate the Mississippi River and encourages the State to continue on this path. EPA
looks forward to collaborating
on this and other efforts to adopt appropriate use designations for
the waters
of the State of Missouri in the future.
Sincerely,
Benjamin
H.
Grumbles
Assistant Administrator
Enclosure
cc:
Elizabeth Hubertz, Clinic Attorney, Washington University School
of Law
Interdisciplinary Environmental Clinic
Edward Galbraith, MDNR
Phil Schroeder, MDNR
John
B.
Askew, Regional Administrator, EPA Region 7
William A. Spratlin, EPA Region 7
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Electronic Filing - Received, Clerk's Office, December 19, 2008
* * * * * PC # 177 * * * * *
