ILLINOIS POLLUTION CONTROL BOARD

February 5, 2009

IN THE MATTER OF:

CITY OF GALVA SITE SPECIFIC WATER

QUALITY STANDARD FOR BORON

DISCHARGES TO EDWARDS RIVER

AND MUD CREEK:

35 ILL. ADM. CODE 303.447 and 303.448

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R09-11

(Rulemaking - Water)

Proposed Rule. First Notice

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OPINION AND ORDER OF THE BOARD (by S.D. Lin):

On October 17, 2008, the City of Galva (City or Galva), a rural community located in

Henry County, filed a proposal for site-specific rulemaking pursuant to Section 28 of the

Environmental Protection Act (Act), 415 ILCS 5/28 (2006)). The proposal (Prop.) seeks to establish

a 3.0 milligram per liter (mg/L) alternative boron standard to the generally applicable 1.0 mg/L boron

water quality standard in 35 Ill. Adm. Code 302.208(g). The alternative standard for boron would

apply to certain segments of an unnamed tributary to the South Branch of the Edwards River, the

South Branch of the Edwards River, and the Mud Creek Run. These segments receive discharges

from the two Sewage Treatment Plant (STPs) operated by the City. The City’s Northeast STP

discharges into the South Branch Edwards River, and its Southwest STP discharges into Mud Run

Creek.

The City also filed motions requesting the Board to waive the requirement for 200 signatures

on the petition and to expedite consideration of the petition.

See

415 ILCS 5/28 (2006); 35 Ill. Adm.

Code 102.202(g) and 101.512. The motion to expedite suggests that the Board cause immediate first

notice publication of the proposal under the Administrative Procedure Act (APA), 5 ILCS 100

et seq.

(2006). The Board has received no responses to the motions and pursuant to Section 101.500(d), any

objection to the granting of the motions is deemed waived. 35 Ill. Adm. Code 101.500(d).

In this order, the Board accepts the proposal for hearing, granting the motion to waive

signature requirement. The Board denies the motion for expedited consideration, but authorizes

first-notice publication of the proposal without comment on the proposal’s merits.

THE PROPOSAL

The City seeks alternative boron standards for certain segments of the streams that

receive discharges from both of its STPs. The Northeast STP is an activated sludge plant that

ultimately discharges into an unnamed tributary of the South Branch of the Edwards River. The

Southwest STP is an aerated lagoon system, discharging into Mud Run Creek, a tributary of Walnut

Creek, which is a tributary of the Spoon River.

Galva states that t

he source of the boron in its STP discharges is the groundwater from

aquifers that supply Galva's drinking water. Galva states that the Illinois Environmental

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Protection Agency (Agency) has incorporated the 1.0 mg/L boron water quality standard of 35

Ill. Adm. Code 302.208(g) into Galva's National Pollutant Discharge Elimination System

(''NPDES'') Permit as an effluent standard. Without conceding the correctness of the Agency action,

Galva states that, unless the Board determines otherwise, the requested relief is necessary to ensure

that Galva does not violate any relevant regulation or appropriate permit condition.

Galva relates that it has investigated various compliance options, including treatment of its

effluent to remove excess boron or obtaining alternative drinking water sources from neighboring

cities of Kewanee and Galesburg. Galva’s proposal summarized its

options available to Galva, and

their associated upfront costs, as follows:

a. Ion Exchange Treatment - $2,016,410

b. Potable Water Ion Exchange Treatment - $2,099,784

c. Potable Water Reverse Osmosis Treatment - $6,905,955

d. Drill New Drinking Water Well - Initial search $100,000, not including drilling.

e. Drinking Water from City of Kewanee - Not possible.

f. Drinking Water from City of Galesburg - $13,600,000. Prop. at 23.

Galva states that it is a rural community without resources to deal with these costs, except by

“record level” user rate increases.

Id.

Galva opines that there is no foreseeable environmental impact from adoption of its

proposal. Among other things, the City intends to present expert testimony in support of its

contention that the Board’s 1.0 mg/L boron water quality standard is “over-protective of aquatic

life”. Prop. at 25, and 26-29.

MOTIONS

The City first requests the Board to waive the requirement for 200 signatures in support

of the petition, as required by 35 Ill. Adm. Code Section 102.202(g). In support of this motion,

Galva cites various past proceedings in which the Board has granted similar requests.

Then, in its motion to expedite (Mot. Exp.), Galva requests the Board proceed to first

notice under the APA without reaching a decision on the merits, by publishing the regulatory

language proposed in this rulemaking proposal only for purposes of first notice. Galva also

requests that the requisite hearing be scheduled as soon as possible in accordance with Section

28(a) of the Act. Mot. Exp. at 2-3.

In support of this request, Galva notes that the boron in its STP discharges is found

naturally in the drinking water supplied by its two wells. Mot. Exp. at 1. Galva asserts that it

has been consulting with the Agency in the development of its proposal. The City also states that

if more information is needed that it will expeditiously provide it. The City also cites to other

proceedings in which the Board has granted similar requests. Mot. Exp. at 2.

Galva notes that a similar proposal for the City of Springfield pending before the Board is

currently receiving expedited consideration. Galva suggests that “it would alleviate the burden on

the Board to review both Petitions at the same time, and would promote the interests of judicial

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economy.” Mot. Exp. at 3, citing inter alia Proposed Site Specific Rule for City of Springfield,

Illinois, Office of Public Utilities, City Water, Light, Power, and Springfield Metro Sanitary District

from 35 Ill. Adm. Code 302.208(g), R09-8 (Sept. 16, 2008). Galva concludes that:

Galva will be prejudiced if this Motion is denied because it continues to be

subject to enforcement for failure to meet its NPDES effluent standard for boron

despite any realistic environmental rationale for such standard. Mot. Exp. at 3.

DISCUSSION

First, the Board finds that the petition meets the content requirements of 35 Ill. Adm.

Code 102.208 and 102.210 and is accepted for hearing. However, a review of the proposal

reveals that the City did not address the applicability of, or provide the information requested in,

the “published study or report” requirement of Section 102.210(c). 35 Ill. Adm. Code

102.210(c);

see also

35 Ill. Adm. Code 102.210(g). The Board requests that the City address

Section 102.210(c), or its inapplicability, in writing, prior to any hearing scheduled in this

proceeding or at such other time as directed by the hearing officer.

Next, the Board grants the motion to waive the signature requirement of Section

102.202(g).

Lastly, the Board denies the motion for expedited consideration. Requests for expedited

review are governed by Section 101.512 of the Board's rules, and must contain,

inter alia

, a

complete statement of the facts and reasons for the request.

See

35 Ill. Adm. Code 101.512. In

acting on a motion for expedited review, the Board considers, at a minimum, all statutory

requirements and whether or not material prejudice will result from the motion being granted or

denied. 35 Ill. Adm. Code 101.512(b). In addition, the Board will only grant a motion for

expedited review consistent with available resources.

See

35 Ill. Adm. Code 101.512(c).

The Board does not discount the City’s assertions concerning costs of compliance, and its

need to either comply with the boron limits in its NPDES permit or to receive an alternative

water quality standard. However, this does not give rise to “material prejudice” sufficient to

allow the Board to grant Galva’s request as made.

As noted, expedited review is granted consistent with decision deadlines and available

resources. The Board currently has numerous open rulemaking dockets that demand immediate

attention, as well as pressing cases that will keep the Board busy for several months.

Due to attrition, Board staffing is at its lowest levels in some years. Even if the Board

were to accept that Galva’s claims amount to “material prejudice”, the Board’s limited resources

in light of its current and future decision deadlines render the granting of a motion for expedited

review unlikely in all but the most dire circumstances.

However, the Board can authorize the first-notice publication of this proposal without

comment on its merits. The Board notes that it has made minor, non-substantive changes to the

form and text of the proposed rule. The Board directs its hearing officer to expeditiously

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schedule hearing consistent with the Board’s decision and regulatory hearing calendars and other

operational needs.

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ORDER

The Board directs the Clerk to cause the first notice publication of the following rule in the

Illinois Register

:

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE C: WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 303

WATER USE DESIGNATIONS AND SITE-SPECIFIC WATER QUALITY STANDARDS

SUBPART A: GENERAL PROVISIONS

Section

303.100

Scope and Applicability

303.101

Multiple Designations

303.102

Rulemaking Required

SUBPART B: NONSPECIFIC WATER USE DESIGNATIONS

Section

303.200

Scope and Applicability

303.201

General Use Waters

303.202

Public and Food Processing Water Supplies

303.203

Underground Waters

303.204

Secondary Contact and Indigenous Aquatic Life Waters

303.205

Outstanding Resource Waters

303.206

List of Outstanding Resource Waters

SUBPART C: SPECIFIC USE DESINGATIONS AND SITE

SPECIFIC WATER QUALITY STANDARDS

Section

303.300

Scope and Applicability

303.301

Organization

303.311

Ohio River Temperature

303.312

Waters Receiving Fluorspar Mine Drainage

303.321

Wabash River Temperature

303.322

Unnamed Tributary of the Vermilion River

303.323

Sugar Creek and Its Unnamed Tributary

303.326

Unnamed Tributary of Salt Creek, Salt Creek, and Little Wabash River

303.331

Mississippi River North Temperature

303.341

Mississippi River North Central Temperature

303.351

Mississippi River South Central Temperature

303.352

Unnamed Tributary of Wood River Creek

303.353

Schoenberger Creek; Unnamed Tributary of Cahokia Canal

303.361

Mississippi River South Temperature

303.400

Bankline Disposal Along the Illinois Waterway/River

303.430

Unnamed Tributary to Dutch Creek

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303.431

Long Point Slough and Its Unnamed Tributary

303.441

Secondary Contact Waters

303.442

Waters Not Designated for Public Water Supply

303.443

Lake Michigan Basin

303.444

Salt Creek, Higgins Creek, West Branch of the DuPage River, Des Plaines River

303.445

Total Dissolved Solids Water Quality Standard for the Lower Des Plaines River

303.447

Unnamed Tributary of the South Branch Edwards River and South Branch

Edwards River

303.448

Mud Creek

SUBPART D: THERMAL DISCHARGES

Section

303.500

Scope and Applicability

303.501

Lake Sangchris Thermal Discharges

303.APPENDIX A

References to Previous Rules

303.APPENDIX B

Sources of Codified Sections

AUTHORITY: Implementing Section 13 and authorized by Sections 11(b) and 27 of the

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STANDARDS

Section 303.347

Unnamed Tributary of the South Branch Edwards River and South Branch

Edwards River

The general use water quality standard for boron at 35 Ill. Adm. Code 302.208(g) does not apply

to the waters of the State that are located from the point of discharge of the publicly owned

treatment works located at 523 NE 9th Street in Galva, known as the Galva Northeast Sewage

Treatment Plant, to an unnamed tributary of the South Branch of the Edwards River (the

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discharge point being located in Henry County, Township 14 North, Range 4 East, occupying

portions of Sections 21, 26, 27, 28,33,34, and 35 in the Fourth Principal Meridian, Latitude N

41.175°, Longitude: W 90.035°) to the confluence of unnamed tributary with the South Branch

Edwards River; to the confluence with the Edwards River. Boron levels in such waters must

meet a water quality standard for boron of 3.0 mg/L.

Section 303.448

Mud Run Creek

The general use water quality standard for boron set forth at 35 Ill. Adm. Code 302.208(g) does

not apply to the waters of the State that are located from the point of discharge of the publicly

owned treatment works located at ½ mile South of the Burlington Northern Santa Fe Railroad

and SW 4

th

Street in Galva, known as the Galva Southwest Sewage Treatment Plant, to Mud Run

Creek (said point located in Henry County, Township 14 North, Range 4 East, occupying

portions of Sections 21, 26, 27, 28, 33, 34 and 35 of the Fourth Principal Meridian, Latitude: N

41.154 degrees, Longitude W. 90.053 degrees) to the confluence of Mud Run Creek with Walnut

Creek. Boron levels in such waters must meet a water quality standard for boron of 3.0 mg/L.

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the

Board adopted the above opinion and order on February 5, 2009, by a vote of 5-0.

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John T. Therriault, Assistant Clerk

Illinois Pollution Control Board