ILLINOIS POLLUTiON

CONTROL BOARD

August

9,

1990

IN

THE

NATTEPS

0~:

SAFE

DRINKING

WATER ACT

)

P23-26

REGULATIONS

)

~Ruiem~kirg)

FINAL

ORDER.

ADOPTED RULE

OPINION

OF

THE

BOARD

(by U.

Anderson):

On May

24, 1990,

the

Board ente~eda

final

Opinion

and Order

in this

matter.

As

is

discussed

in greater detail

below,

the Order allowed

time for

post-adoption

con~nentfrom

the

agencies

involved

in

the

ajtho~izati on

process.

For

the

reasons

discussed

below,

the

Board

is

wi thdrewing

the

Nay

24,

1990,

Opinion

and

Order,

and

is

replacing

it

with

this

Opinion

and

Order.

Pursuant

to

Section

17.5

of

the

Environmental

Protection

Act

(Act),

the

Board

is

adopting

regulations

which

are

identical

in

substance

to

LISEPA

regulations

implementing

the

Safe

Drinking

Water

Act

(SDWA).

This

action

involves

the

repeal

of

much

of existing

35

Il.

Adm.

Code

604,

605,

606

and

607,

and

their

replacement

~ith

a

new

35

ill.

Adn.

Cod~e 611.

Section

17.5 of the Act proiides

fo~quick

adoption

of

regulations

which

are “identical

in

substance”

to fedn~al ‘egulatiors;

Section

17.5 povides

that Title

VII

of the Act

and Section

5

of the Illinois Administrative

Procedure Act

(APA)

shall

not apply.

Because

this rulemaking

is

not

subject

to

Section

5

of

the

APA,

it

is

rot

subjoct

to

first

notice

or

to

SOCO’~d

notice

review

by

the

Joint

Committee

on

Adriini strati

ye

Rules

(lC~R)

The

SDWA

program

was

d~-avin from

40

CFR

141,

142

and

143

(1989).

The

proposal

was

based

on

the

1987

Editior~. For

the

reasons

discussed

below,

in

the adopted rules,

the Board

has

rep

aced

most

of tnese

references with

a

simple reference

to the 1989 CFR Edition.

PUBLIC COMMENT

The

Board

adopted

a

proposed

Opinion

and

Ordn~on

October

5,

1989.

The

proposal

appeared

on

Dece:iber

1,

1989,

at

13

Ill.

Peg.

13690.

Tbn

Board

recci

ved,

and

greatly

appreci otes

,

the

f31 lowing pub

ic

comment

fo~

lowing

th~

publication

in the Illinois Negiste~:

PC

2

Administrative Code Division, January

8,

1990

City

of

Chicago,

Depa~Lnentof

W,ite’,

January

1/,

9’~)

Tue

Bound

eckrowleJ~esthe contnibutiuns

~f

No’too

Dunot.iy

md

~‘~ncN

in

droi:ing thn 0 pi~ionand 0 ‘uion.

-

1

---

PC

4

USEPA, February

13,

1990

PC

5

Agency, Fehrua~y15,

1990

PC

6

Illinois Department

of Public Health, Ma~ch22,

1990

PC

7

JCAP~,

Janua~y

12,

1990.

PC

1

was

a

preliminary

draft

proposal

prepared

by

the

Agency,

which was

Docketed

on March

14,

1989,

prior

to

the Board’s

Proposal.

POST-ADOPTI ON COMMENT

As

noted,

on

May

24,

1990,

the Board adopted

a “Final” Opinion

and Order,

which

allowed

a

post-adoption

comment

period.

As

is

discussed

below,

the

post—adoption

con~nentperiod

was

extended

at

the

request

of

the

Agency.

The

Board

recei ved

the

fol lowing

publ i c

comment

following

the

Nay

24,

1990,

Opinion

and

Order:

PC

8

Flo—.Systems,

July

5,

1990

PC

9

City of Napenville, July

6,

1990

PC

10

Elgin Water Department, July

9,

1990

PC

11

City

of Pinckneyville, July

17, 1990

PC

12

USEPA, July

17,

1990

PC

13

City

of Evanston,

July

17,

1990

PC

14

Agency,

July 20,

1990

PC

15

Advanced Polymer Systems, August

2,

1990

This

particular

‘uiemaking

has

presented

unusual

difficulties

because

of

the

number

of

issues

that

were

not

addressed

until

after

the

Board

adopted

the

rules,

that

is,

not

until

the

post—adoption

comment

period.

In

so

saying,

we

recognize

that

this

is

the

first

proceeding

involving

“identical

in

substance”

public water supply regulations

flowing from the Safe Drinking Water Act,

and

the Agency’s Division

that oversees

the public water supplies.

The

cause

and

effect

of the difficulties

created, however,

in addition

to

an

unfortunate

loss of

time,

do need

to

be

explained

so

that

the

development

of

the

rules

and

the

reasons therefore can

be tracked

for

future interpretation.

The

“identical

in substance”

procedures,

that

are

intended to avoid just

a

problem as

occurred

here, were

first developed

in

the RCRA program,

the

first

of

the

fast track

“identi

cal

in

substance”

rulemakings

(which

nose

irclude

such

areas

as

industrial

pretreatment,

underground

injection control,

and

unde—ground

storage

tanks).

The

Board,

the

Agency,

USEPA

Region

5

and

the

Attorney

General

informal ly

set

up

,

in

wri

ti rg,

a

system

now

cal led

toe

“RCRA

agreement.

A

key

provi

Si

on

states

that

the

parti ciparts

would

couaert

up—

front,

during

the

formal

45

day

comment

period,

on

pencei ved

problem

areas

in

1

1

-~

I

no

---

—3—

tile

rules

as

proposed.

It

is

during

this

pro-adoption

phase that

the Board

requests

comment

(now

in bold type),

and

needs

responses.

If

the system

is

to

work,

the

Board must assume,

and

so states

in

its adopting Opinion,

that

silence

means

no

objection.

It

was

a

so

agreed

that,

afte~

the

Board

acoptod

the

ru~,

it

would

hoo

it

for

an

tu

39

days

before

fil

ing

it,

p~ioa~’ily

to

make

sure

that

USEPA

“headquarte~s”

old

not

have

sonic

p~oblern,

and

for

a

final

“1 ook—see”

by

the

parti ci pants

ot

the

Board’s

adopted

language charges

in

response

to

the

ear

icr

comments.

Post-adopt ion

changes

seldom

occur,

and

if

they

do,

they are

isolated.

The

purpose

of this expedited app~’oach is

to

comply with

legislative adoption,

and federal

authorization,

deadlines.

Success depends

or

avoiding

a regulatory

“rollover”

caused

by

having

to

revisit

the regulations

at

the back—end.

This

is

not

what happened

in this Docket,

and

we

are

at

this juncture

in

the “back—end” phase working

or’

issues

that should

have

been dealt with

at

the

front—end.

We certainly understand

that

the Agency

staff was st’etched thin

and

that

the potential

for subsequent

problems,

might

not

have

been fully

percei ved.

Indeed,

the problems we~ecompounded for both

the

Board and

the

Agency

because

of further unpredicted

difficulties with

the rules,

for

which

Region

5

has provided connents

in

its post—adoption

co~inent

(PC

12),

not

in

its

comments

on the proposed

rule

(PC 4).

The Agency post—adoption comment,

PC

14,

is

a massive document,

consisting

of

67

pages plus appendices.

Most,

but

not

all

of this comment

is directed

at

language which was

present

in

the

initial

proposal, where the Board

in

its accompanying Opinion,

we note, made

its

usual

sped

fi c

requests

for comment,

set

in bold face type.

The effect

of

all

this

is that

we

are dealing

at

this juncture with three

documonts

consisting

of:

three orders, ore proposed

-—

and two adopted,

the

latter ~epiading

the

fonine~~,and

three accompanying

Opinions focused

on many

of

the same issues; and two sets

of Agency

comments

on

the first

two sets

of

documents.

This Dpi ni on

attempts

to track

the

issues

and

the

1 Inguage

as

they

developed.

Trie Opi ni on will

first

set

out

how

we addressed the

issue

in the

Proposed

Opinior.

We

will

then cite

to

the

Agency’s

initial

cornent

(PC

5).

If

the

Agency

failed

to

comment,

the

me

will

reference

to

the

item

in

PC

5

which

came

the

closest

to

the issue.

In

order

to

try

to

further

clarify

the

situation,

the

we

will

put

“post—adoption”

before

references

to

PC

14.

if

only

PC

5

is

referenced,

then

only

the

proposed

and

first

adopted

documents

need

be

referred

to.

Finally, we rote that on August

6,

1990,

three

days

before

the

Board

meet i rg,

the

Agency

fi

led

an

Odd

Li

anal

set

of

coiner’.ts,

which

includes

furthe

,

more

coniorenonsi

ye,

dna ft

language.

The

Bua~d

ml

11

not

further

dcl ay

this

Docket

in

o-d?m~to review

these

cornents.

It

will

defer action on

theni

to

another

Docket.

We

believe

that

the

regulations

as

hereby

again

adopted

are

acceptanle

for

autho~izationpurposes,

and

we

will

hove

to

le,il

with

problems

with

ou’~legislative deadlines

in

a

subsequent

Docket

as

they

arise.

The

i

ni

t

i a

pub

ic

coilnents

rio

in

y,

and the post-adoption

co~inerts

in

cercai

n

rusoects,

raised

boad

issues whico a~e

mddressr I

mn en:1c~~aibe

ow.

Comments

addressing

sped

fic

Sections

are

iddnassccl

with

tiiQ

di~cjSsion

of

th~

sped

fic

Sect

ions.

I

1!,--I ni

---

—4-

EXTENSION

OF

TIME

ORDERS

Section 7.2(b)

of

the

Act

requi~es the

Board

to

adopt

“identical

in

substance”

—aleS

within one yea—

aft-u~adoption by USEPA.

if the

3odd

is

unable to complete

the

“uleniaki ng

ii

thi

~‘

one

year,

toe Board

is

to

adopt

an

“extension

of

tine”

Onie-,

and

punl~sh

d

notice

in the illiroit Pe-giste~’.

On

August

31,

1989, Board

adopted

an extension Order,

which

appeared

at

13

Ill.

Reg.

18641.

On Janua—y

11,

1990,

the

Board

entered

a

second

extension

Ode”,

which appeared

at

14

Ill.

Reg.

3235.

In

the August

31 Orde—,

the Board noted that

it was

inipossi be

to

literaly

comply with the time

limits

in Section 7.2(b)

of

the

Act

in

initial

adoption.

of

an

ongoing

federal

prog—am.

The USEPA rules date

back

to

Decenbe”

24,

1975,

long

before

Section

7.2

or

17.5

of

the

Act

were

adopted.

However,

the

Board

noted

the

major

USEPA

amendments

of

June

29,

1939,

and

stated

its

intent

to develop

a proposal including

them.

In

the

Janua”y

11,

1990,

Orde—,

the

Board

noted

that

the

Agency

had

requested

a

30

day

extension

of

the

pub

ic

comment

period.

The

Board

granted

the

extension,

and

ente-ed

another

extension

of

tine

Order.

The Agency actually filed

PC

5

on

February 15,

1990.

However,

this

counent

raised issues concerning possible overlapping junisuiction with

the

illinois

Department

of

Public

Heath

(Pubic

Health).

The

Board

wrote

to

Public

deal th,

requesting

comonent.

A

response

(PC

6)

was

rec-el ved

on

March

22,

1990.

At

this

point

the

matter

became

ready

for

decision.

-however,

these

delays

had

pushed

this

deci sian

forward

into

tine

needed

for

the

RCRA

updates,

R89—9

and

P90—2,

which

are

subject

to

the

sane

schedule

undcr

Section 7.2(b)

of

the Act.

The

Board

entered

a

final

Opi nion

and

O-der

on

Mey

24,

1990,

which

allowed

the

agencies

involved

in

the

authorization

process

to

file

post-

adoption

comments

through

June

25,

1990.

However,

on

June

6,

1990,

the

Agency

filed

a

request

to

extend

the

post-adoption

counent

period

to

July

25,

1990.

On

June

7,

1990,

the

Board

granted

an

extension,

but

only

through

July

17,

1990.

On

June

21,

1990,

toe

Board

entered

another

‘extension

of

time”

Orde,

citing

the

Agency’s

extension

as

the

reason.

As

is

discussed above,

the Agency did

not actually file its post—adoption

comments

‘until

July

20,

1990.

However,

these

comments

were

incomplete,

notably

lacking

copies

of

out—of—date

pub

i cations

which

the

Agency

wanted

incorporated

by

reference,

and

comment

on

the

revisions

to

existing

Parts

604

through

607.

The

absence

of

these

documents

hampered

th~Board

in

its

effort

to

revise

the

Oni ni

on

and

Order.

As

noted

above,

the

Agency

filed

a

supplemental

connent

1

nd

udi

r’q

these

i tens

on

August

4,

1990,

fu’~

too

late

to

aid

in

toe preparation

of

tne

Opi nion

and

Orde”

tar

August

9,

1u90.

‘,ii

‘~,•‘

V

t’~

I

,j~V

Toe

JSEPA

rules

use

a

large

number

of

ac

oryns

sporadically.

The

Boa’a

has moved

the definitions

of these

to

too dofini ti or’s,

Section

611.141, and

used

the

acronym

wrierever approp—iate.

One

of fect

of

tni s

is

to

ti

biten

toe

use

of

defi

red

temos.

For

exam:lpe

,

the

IJELPA

‘u as

define “pub

ic water

11

-~-

I n:~

---

—a—

system”,

or

“PMS”,

but

then

go

on

to

use

many

synonyms,

such

as

“supply”

o

“system”,

when

“PWS”

is

obviously

intended.

Tne

Board

rules

a-c

clearer

in

that

they

use

the

defined

acronym,

rather

than

undefined

abbreviations.

Also,

because

the—c

are

a

large

number

of

long

ph—ases

wol cli

a”e

f”ecuently

repeated,

the

acronyms

shorten

the

rules.

Houeve”,

the number

of acronyms

ir’

the

resulting

rules

are

apt

to

cause

problems

until

people

get

used

to

then.

Since

the

acronyms

are

used

in

the

Dpi H on

a

so,

the

Board

has

included

the

following

table

of

acronyms:

Agency

Illinois Environmental °rotectionAgency

Ai

Inactivation

Ratio:

Ai

CTcac/0T99.9

B

The

sum

ofthe

inactivation

ratios,

or

“total

inactivation

ratio”

is

calculated

by

adding

together

the

inactivation

ratio

for

each

disinfection

sequence:

B

=

SUM(Ai)

“BAT”

Best

available

technology

“Board”

iinois

Pollution

Control

Board

“CAS No”

Chemical

Abstracts

Services

Number

“C”

“RDC” when used

in formulas

(See

below)

“CT”

or

“CTcac”

The

product

of

“residual

disinfectant

concentration”

(RDC

or

C)

in

mg/L

determined

before

or

at

the

first

custome—,

and

the

corresponding

“disinfectant

contact

time”

(T)

in

minutes.

“CTY9.9”

CT

value

required

for

99.9

percent

(3-log)

inactivation

of

Giardia

lanblia

cysts.

(See

Appendix

B)

“CWS”

Connunity

Water

System.

“OC”

“gas

chromatography”

or

“gas—liquid

phase

chromatography”.

“GC/MS”

GC

fol

1 owed

by

mass

spectrometry.

“HPC”

Heterotrophic

plate

court,

measu~ed as

specif~ed

in

Section

611.531(c).

“MAE”

Maxi

nun

all

owuol

e

concentration,

the

cqui val ert

of

an

“MCL”

in

the

cxi sting

State

reguati

or’s.

‘‘MEL’’

Maximum

cortami

nant

I

ovel

“~CLG”

Mmmxi

mum

contaminant

eve

noal

I

I

-~--

I

~‘

1

---

-6-

Maximum

Total

Trihalomethane

Potenti a

‘NTI4CWS”

Non—transient

non—comnmuni ty

wate

system.

National

p~imiarydHn~inq water

eyJation.

Nephe

onetri c turbidity

mn

ts

“P—A

Coliform

Test”

Presence-Absence

Coliform

Test

“pCi”

Picocurie

“PWS”

Public

water

system.

“Public

Health”

Illinois

Depatoient

of

Public

Health

‘Rem”

The

unit

of

dose

equivalent

from

ionizing

radiation

to

the

total

body

or

any

internal

organ

or

organ

system.

A

“millirem

(mnrem)”

is

1/1000

of

a

-em.

“SDWA”

Safe

Drinking

Water

Act,

42

U.S.C.

300f

et

seq.

“TTHM”

Total

trihalomethanes.

“THM”

Tn

no

onethane.

‘lU”

Turbidity units

“USEPA”

United

States

Environmental

Protection

Agency

“VOL’

Volatile

o”ganic

cheoical

GENERAL

APPROACH

TO

STRINGENCY

Act

requires

the

Bodrd

to

adopt

rules

which

are

with

IJSEPA

Safe

Drinking

Water

Act

rules.

These

40

CFR

141.

largely

supersede

the

existing

PWS

rules

in

35

ill.

Adrn. Code

The

Board

has

followed

a

plan

of

adopting

the

larger

body

of

new

Part

611.

The

no’e

stringent

and

additional,

consistent

been

moved

into

the

body

of

the

federal

text.

In

accomplishing

the

reformatting,

the

Board

has

followed

a

general

approach

of

following

the

IJSEPA

rules,

and

appending

additional

State

requi~emertsto

the

USEPA

structure.

It

would

have

been

possible

to

have

retained

the

existing

State

structure,

appending

the

additional

USEPA

requirements

to

it.

This

would

have

involved

initially

a

much

sialler

volume

of

rulemaking.

However,

it

would

have

invo

ved

a

higher

deg’moe

of

“e ~‘iew

by

way

of

line—by—line

compani son

of

the

State

and

USE PA

text.

Mo’eoven,

it

would

have

produced

a

set

of

rules

which

mould

be

difficult

to

nair’tiin.

Section

17.5

of

the

“identical

in

substance”

rules

are

found

mainly

a

These

rules

604 through

607.

USEPA

rules

in

a

State

rules

have

I~

4-~

I S-~

---

Since

it

has adopted

the USEPA st—uctu—e

as

the

baseline,

the

Board

will

he

able

to

carry

out

routine

updates

of

the

~‘ues

based

on

the

Federal

Registers.

If

the

State

st—uctu—e

were

retained,

it

wojid

be

necessc~’yto

repeat

the

line-by—

inc

comparison

of

the

texts

with

each

‘update.

Most

existing

State

“egulatlons are

less

svingent

than,

virtually

the

same

as

o—

inconsi stent

with

the

fede”a

,

so

that

the”e

is

not

a

large

amount

of

text

to

deal

with

in

accomn’nodating

the

no—c

stringent

and

addi tiona

consi stent

State

requi nenierts.

The

existing

State

regulations

regulate

more

P05

contaminants

than

do

the

federal.

Fo—

the

contuminants

regulated

in

both

rule

sets,

the

existing

Board

regulations

are

mostly

the

sane

or

more

stringent.

An

exception

are

the

new

federal

disinfection

requirements

and

microbial

standards.

As

is

discussed

below,

it

is

difficult

to

make

direct

comparisons

of

these

provisions

for

Stringency.

Most

of

the

MCLs

,

both

federal

and

State,

are associated

with

samp

i ng,

analysis

and

reporting

requirements.

The

Board

has

made the stringency,

o~’

consistency,

determination

with

respect

to

the MEL,

and then retained

toe

associated

sampling

and

analysis

requirement.

For

example,

it

would

not

make

sense

to

adopt

the

P/A

standard,

and

then

go

on

to

req’ui re

bacterial

counts.

Most

of

the

NCLs

also

have

a

reporting

and

notice

provisions.

The

Board

has

kept

the

provisions

associated

with

the

MCL.

It

is

a

little

simpler

with

respect

to

the

additional

MCLs

in

the

Board

regulations.

The

Board

has

inserted

these

addi tional

MCLs

,

along

with

the

associated

analyti cal

and

reno”ti

ny

requl reuients,

into

the

body

of

the

federal

rules.

The

Board

has

used

“Board

Notes”,

or

other

devices,

to

mark

these

as

additional

State

requi”enments.

AGENCY

OR BOARD ACTION?

The

rules are based mainly on

40 CFR

141.

The USEPA rules

include many

decisions which,

in

a

system

administered

by

USEPA, would

he

made

by

the

Regional

Administrator.

In

fashioning

the

State

rules

from

these

“pattern

rules”,

the

Board

:ias

almost

always

changed

“Regional

Administrator”

to

“Agency”.

Howeve—,

in

some

situations

“Regional

Administrator”

has

been

changed

to

“USEPA”

or

“Board”.

Section

7.2(a)(5)

of

the

Act

requires

the

Board

to

specify

which

decisions

USEPA

will

retain.

In

addition,

the

Board

is

to

specify

whi cli

State

agency

is

to

make

decisions,

based

on

the

gene—al

division

of

functions

within

the

Act

and

other

Illinois

statutes.

In

situations

in

whi oh

USE

PA

is

to

retain

decision—making

authority,

the

Board

has

simply

replaced

“Regional

Admninist”ator”

with

“USEPA”.

Tne

USE PA

rules

are

flexible

as

to

the

procellu”al

context

for

most

dcci si or’s.

The

SOdA

does

not

“equ

i

‘c

a

construction

o”

operating

penni

t

of

tie

type

nequi

red

by

35

ill

.

~tdm. Code

602.

The

states

have

unen left

the

option

of

“equi ~ir’g

a

conip”ehensive

pe”nit,

on

af

adnministc”ing

the

numms

through

otiie” procedu~‘a arrangements.

Si

nce,

as

is

di scmmss~d be

ow

in

connectiorm with

the

A~ency

cm;rent,

Illinois

has

a

pru-o\istlng

hlr’mlmlt

II.’--

I

on

---

-3-

requirement,

the

Board

has

generally

placed

the

‘equirements

of

40

CFR

141

into

the

procedural

context

of

Agency

action

on

a

special

exception

permit

application.

The Agency

has

autnonity

to administer

such

a

permit

systemTm

under Sections

4 and

39

of

the Act.

In

a few instances

in

identical

in

substance

“ales, decisions are

lot

appropriate

for Agency action pursuant to

a

permit application.

Among the

considerations

in

determining

the

general

division

of

autho”ity

between

the

Agency

and

the

Board

are

the

following:

1.

Is

the

person

making

the

decision

applying

a

Board

regulation,

or

taking

action

contrary

to

(“waiving”)

a

Board

regulation?

It

generally

takes

some

form

of

Board

action

to

“wai ye”

a

Board

regulation.

For

example,

the

Agency

clearly

has

authority

to

apply

a

regulation

which

says

“if

A,

do

X;

if

not

A,

do

Y”.

On

the

other

hand,

regulations

which

say

“If

not

A,

the

state

shall

waive

X”

are

more

troubling.

2.

Is

there

a

clear

standard

for

action

such

that

the

Board

can give

meaningful

review

to

an

Agency

decision?

3.

Is

there

a

right

to

appeal?

Agency

actions

are

generally

appealable

to

the

Board.

4.

Does

this

action

concern

a

person

who

is

requi red

to

have

a

permit

anyway?

if

so

there

is

a

pre—exi sting

permit

relationship

which

can

easily

be

used

as

a

context

for

Agency

decision.

If

the

action

concerns

a

person

who

does

not

have

a

permit,

it

is

more

difficult

to

place

the

decision

into

a

procedural

context

which

mould

be within

the

Agency’s

initial

jurisdiction.

5.

Does

the

action

result

in

exemption

f”on

the

permit

requirement

itself?

If

so,

Board

action

is

generally

required.

6.

Does

the

decision

amount

to

“determining,

defining

or

implementing

environmental

control

standards”

within

the

meaning

of

Section

5(b)

of

the

Act?

If

so,

it

must

be

made

by

the

Board.

Once

it

is

determined

that

a

decision

must

be

made

by

the

Board,

rather

than

the

Agency,

it

is

necessary

to

determine

what

procedural

context

is

best

suited

for

that

decision.

There

are

four

common

classes

of

Board

decision:

variance,

adjusted

standard,

site

specific

rulemaking

and

enforcement.

Toe

first

three

are

methods

by

which

a

regulation

can

be

temoporani ly

postponed

(variance)

or

adjusted

to

meet

specific

situations

(adjusted

standard

o”

site

specific

rulemaking).

Note

that

there

are

differences

in

the

nomencature

for

these

decisions

between

the

USEPA

and

Board

regulations.

These

differences

have

caused

past

misunderstandings

with

USEPA.

A

van

ar~ce is

mi

ti ated

by

the

operator fill

ng

a

peti ti

on

pursuant

to

Title

IX

of

the

Act

and

35

1.

AiIm.

Code

104.

The

Agency

files

a

reconmendati on

as

to

what

action

the

Board

should

take.

Toe

Board

may

conduct

a

public

hearing,

and

must

do

so

if

there

is

an

objection

to

the

va”iance.

11/—1

tO

---

—9-

Board

va—lances

are:

tempona’y;

based

on

arbitrary

on

unreasonable

hardship;

and,

“equine

a

plan

for

eventual

compliance

with

the

genera

regulation.

To

the

extent

a

USEPA

decision

involves

these

facto”s,

~aBoard

variance

is

an

appnopHate

mechanism.

A

va—i ance

is

not

an

app”op’iate

mechanism

for

a

dcci sion

mdi co

is

not

based

on

arbitrary

on

unreasonable

hardship,

on

which

grants

permanent

relief

without

eventual

comnp

lance.

To

grant

permanent

relief,

the

Board

needs

to

grant

a

site

specific

regulation

or

an

adjusted

standard

pursuant

to

Sections

27

or

28.1

of

the

Act,

and

35

Ill.

Adm.

Code

102

or

106.

RESPONSE

TO

GENERAL

COMMENTS

The

Agency

comment

(PC

5)

md

uded

a

comprehensive

review

of

the

Proposal.

Howeve’-,

the

Agency

raised

severa

issues

which

are

of

a

global

nature,

which

cannot

be

easily

addressed

in

the

Section-by-Section

discussion.

The

Public

Health

comment

(PC

6)

concerns

one

of

the Agency’s

global

issues.

The

post—adoption

comments,

including

PC

12

and

14,

also

raise

global

issues.

This

section

of

the

Opinion

will

address

the

global

issues.

Comments addressing

single Sections will

be addressed below

in

the Section-by-

Section discussion.

DEFINITIONS

IN

ACT

The

Agerrcy

suggests

that

the

Board

change

several

definitions

to

conform

with

definitions

in

the

Act.

This

includes

the

definition

of

“non—CWS”,

which

is

discussed

below,

and

which

was

also

the

subject

of

PC

6.

In

identical

in

substance rulemaking there

is always

an ambiguity when

the

statute

defines

terms,

and

instructs

the

Board

to

adopt

regulations

which

include

the

same

terms

with

different

defi

ni ti ons.

The

Board

has

long

held

that,

in

identi cal

in

substance

rulemaki ng,

the

mandate

to

adopt

identi cal

in

substance

rules

nequi res

that

th~

Board

adopt

the

defini tions

in

the

federal

rules.

To

do

otherwise

would

risk

adopting

a

program

which

would

regulate

persons

and

activities

other

than.

those

regulated

by

the

federal

program,

in

violation

of

the

identical

in

substance

mandate,

now

defined

in

Section

7.2(a)

of

the

Act.

Furthermore,

using

the

definitions

from

the

Act

could

change

the

way

the

program

components

fit

together,

leaving

loopholes

and

contradictory

provisions.

(R81—22,

February

4,

1982,

Opinion,

p.

17;

45

PCB

317,

333)

Therefore,

the

Board

has

used

the

definitions

from

the

USEPA

rules.

NON—COMMUNITY

HATER

SUPPLIES

The

Board

proposed

rules,

based

on

40

CFR

141,

to

regulate

POSs,

which

i nc

ude

both

COSs

and

non—LOSs.

As

defi

ned

in

both

the USE?A rules

and Act,

non—CWSs

are

small

PWSs

:

systems

with

fewer

than

15

connections,

and

which

regularly

se”ve

fewer

than

25

persons.

The

Agency

and

Pub

ic

Health

poi

nted

out

that

Pool

ic

Heal U~regal ates

non—CWSs

.

(PC

n

and

6

.

Tney

argue

tna t

the

defi H t

ion

of

“Non~Co;aoo1ity dater Supply”

in

Section

3.05 of

the

Act

prec

udes

the

Soar-i

from

regal at i nj

non—LOSs.

Toe

defi el ti

on

reads

as

follows:

“Non-Cowman

i

tv

doter

Supp

I y”

meana

a pub

i

c

mote”

1 I/-~I

57

---

-10-

supply that

is

not

a

community water supply.

The

requinenents

of this Act

shall

not

apply to

non-

community

water

supplies.

(Ill.

Rev.

Stat.

1988,

ch.

111

1/2,

par.

1003.05)

(Emphasis

added.)

As

noted

above,

the

Board

has

long

held

that

the

identical

in

substance

mandate,

as

defined

in

Section

7.2

of

the

Act,

requires

the

Board

to

adopt

the

definitions

in

the USEPA rules,

rather than

in

the Act.

However,

the

underlined portion

of Section 3.05

is

a substantive

provision,

limiting the

scope

of the Act,

rather than

a pant of

the definition

of

“non-CWS’.

The conmenter’s

are

attempting

to change the underlined portion of

Section

3.05 to

read:

“Board

regulations shall

not apply

to non—CWSs”.

However, this

is

not

what

Section

3.05

says.

Rather,

it

says:

“The requirements

of this

Act

shall

not

apply

to

non-community

water

supplies.”

The “requiements

of

this

Act”

do apply

to the Board,

and Section

17.5 provides:

In

accordance

with

Section

7.2,

the Board

shall

adopt

regulations which are “identical

in

substance”

to

federal

regulations

or amendments thereto promulgated

by the Administrator of

USEPA

to implement Sections

1412(b), 1414(c),

1417(a),

and

1445(a)

of the SDWA

(Ill. Rev.

Stat.

1988 Supp.,

ch.

111 1/2,

pan.

1017.5)

Section

7.2 provides that:

“identical

in substance”

means

State

regulations

which require

the

same actions with respect

to

protection

of the environment,

by the

same group

of

affected

persons, as would

federal

regulations

if

USEPA administered

the subject program

in Illinois.

(Ill.

Rev.

Stat.

1988 Supp.,

ch.

111

1/2,

par.

1007.2)

The

Proposal

was

drawn from 40 CFR

141, which regulates both CWSs and

non—CWSs.

As the Board

sees

it, Section

17.5 of the Act

is

a mandate

to adopt

regulations

which are “identical

in

substance” with

40 CFR

141,

which includes

regulations applicable both to CWSs and

non-CWSs.

Therefore,

Section

17.5

requires the Board

to adopt

regulations governing non-CWSs, regardless of the

provision in Section 3.05

that the Act itself does not apply

to

them.

Because

of the

importance

of

this

issue, the Board

has

gone on

to examine

two other

possible arguments not

specifically raised.

The

first

is the

possibility that the

portions of

40 CFR

141 affecting non-LOSs were adopted

under

federal

authority other than

the SOdA Sections listed

in

Section

17.5 of

the Act.

The

second

is

the possibility

is that the

State

statutes involved

ought

to

be interpreted

as

superseding

or complementing.

The

Board

has

determined that both

of these

lines

of reasoning further

support

its

interpretation that

it

is

to

adopt

regulations

applicable

to

both CWSs and

non—CWSs.

The

SOdA defines

“pub

ic

water

system”,

without

drawing

a distinction

ii 4-1

53

---

—11—

between CWSs and nor-CWSs.

However,

40 CFR

141.2 defines

“PdS”,

and

draws the

distinction between

a

“COB”

and

a “non-OWS”.

40 CFR

141

then goes on

to

speci fically

regal ate both “COBs”

and “non—CWSs”.

USEPA

cites

its

authority

for

40

OCR

141

in

the

main

autho—i ty

note

at

the

beginning

of

the Part.

This

includes

the

Sections of

the SOdA cited

in

Section 17.5 of

the

Act,

and

some

othe”s.

Unfortunately,

USEPA does

not

specify which

Sections of the rules

are authorized

by which

Sections of the

SDWA.

However, none of the cited

Se’ctions include any reference whatsoever

to

regulation

of non-LOSs.

Indeed, the Board

has been unable

to

find any

references

to non—LOSs anywhere

in

the

SDWA.

The

Board

is

therefore unable

to

find

any

basis

in

the

citation

to specific SDWA Sections for

the proposition

that

it should

not regulate non—CWSs.

As

the Board

sees

it,

the statutory language

is

clear on

its

face.

There

is,

therefore,

no

need to address

statutory intent.

However,

the Board will

go

on with the second possible argument, which delves

into intent.

The

second possible argument

is

that the Illinois statutory provisions

should

be read

as either superseding

or complementing each other.

in

the

first

situation,

suppose

P.A. ~1 says

“do A

and

B”.

P.A. ~2 says

“don’t

do

B”.

One could

read these

together’ and decide that

the intent was to

“do A”.

On

the other hand,

one

would

reach the opposite

concl usion

if the order of

adoption

were

reversed:

the

directive

to

“do

A

and

B” would have superseded

“don’t

do

B”.

In

the second

situation, suppose

P.A.

fl tell s

an

agency

X to

“do A and

B”,

and agency

Y

to

“do

B”.

One

might read the statutes

as complementing

one

another

so that agency

X

is

to “do A”

and

Y

is

to

“do B”.

These

arguments

depend

on

the

order

in

which

the

various

statutes

were

adopted

or

amended.

Time

fol lowing table

sunaliani

zes

the

order

of adoption.

ch.

1111/2

P.A.

Effective

Summary

par.

_______________________—_______________

1003.5

84-1308

8/25/86

Definition of “non-CWS”;

limitation

on

applicability

of Act

7459

85—863

9/24/37

Public Health

rulemaking authority over

~ n

—

COBs

1017.5

85—1048

1/1/89

Board

to

adopt

“identical

in

substance”

rules.

The “identical

in

substance” mandate

of Section

17.5

was

adopted

last.

To

the extent pans.

1003.5

and

7459

may

be

inconsistent, they were superseded.

In

the

second

Si

tuati

on,

these p”ovi sions

wo ald

be

read

togethe”,

as

coniplemiientirig

one

another.

macyen,

they

were

added

in

three

scip~’m”ate

Acts

over

a

span

of

tml”ce

years.

Tnc

Boa”d

does

not

see

any

indic

mtioml

that

these

snpa’-atn

Acts

we’e

a

pant

of

a

conineliensi

~‘e

p1 an

to

di

‘iido

a ithoni ty

over

pub

ic

water

smmppl ies

between

tee

Board

and

Pun’

Ic

Heal th.

On

Lie

contrany,

114-150

---

-12-

it

is more likely that Section 17.5 of the Act was

added

to

remedy

deficiencies

in

the

prior

Acts.

The

Agency

and

Public

Health

have

cited

the

UIC

identical

in

substance

mandate,

in

Section

13(d)

of

the

Act,

as

an

example

of

a

split

of

authority

to

adopt

portions of

a federal

program.

Pursuant to Section

13(d)

of the Act,

the Board adopted U1C regulations applicable only to Class

I,

III,

IV and V

wells,

leaving the regulation

of Class

II

wells to

the Department

of Mines and

Minerals.

(R81—32,

Opinion

of May

13,

1982,

p.9;

47

PCB

95,

103)

However,

Section

13(c)

directs the Board

to

adopt the entire text of the

USEPA UIC

rules, without

reference

to

the

omission of Class

II wells.

The reasoning

behind

the omission of Class

Ii wells

is

not contained

in

the R81—32

Opinion.

At th~same time as R81-32 was

pending,

Mines and Minerals was

in

the

process

of adopting regulations which closely tracked

the

USEPA rules

governin~Class

II

wells,

which inject

fluids for

recovery of petroleum.

In R81-32, the Agency proposed

regulations

to

the Board.

The omission of

Class

II

wells was

a major component of the Agency’s proposal.

The Board put

the Agency’s proposal

out

for public comment,

and no one raised

the issue

of

the statutory basis

for excluding Class

II

wells.

R81—32 predated the

specific definition

of “identical

in

substance”

in Section

7.2 of

the Act,

and

also predated the UST authority,

which

spetifically directed the Board

to

adopt

identical

in

substance

rules

to

be

implemented

by an

agency other than

the Agency.

(R88-27,

Opinion

of April

27,

1989;

R89-19, April

26,

1990)

It would

be easier

to

read

these statutes

as

coriplementing each other

if

Pan.

7459

contained

a

directive

to

adopt

“identical

in

substance”

rules,

on

if

Public

Health

in

fact

had

done

so.

However,

Par.

7459

is

very

different

from

an

identical

in substance mandate,

and Public

Health

has

not

so construed

it.

Par. 7459 reads

as

follows:

The Department shall

promulgate rules

for the

construction and operation of

all

non-community and

semi—private water supplies.

Such rules

shall

include

but need

not

be limited

to:

the establishment of

maximum contaminant

levels

no more stringent than

federally established

standards where such standards

exist

the maintenance

of records;

requirements

for

the submission

and frequency of submission

of water

samples

by

suppl icr’s

of

water’

to determine

the

water

quality.

(Ill.

Rev. Stat.

1988 Supp.,

ch.

111

1/2,

par.

7459)

(Emphasis added)

The directive to Public

Health

is

to adopt MCLs

“no

more

stringent than

federally established

standards”.

T:ois

is

vastly different than

the

identical

in

substance directive of Section 7.2 and 17.5 of

the Act

to

adopt

regulations

“which

require

the sdne

actions,

by

the

same

persons”.

Pa”.

7459

places

a cap

on MCL5:

it

requires that they be

“no more stringent”.

It

is

silent

as

to

the

floor.

On

the

other

hand,

Sections

7.2

and

17.5 establish

a

floor,

by

requi ring

the

same MCLs as

the

federal

rule,

unless

the

Board

adopts

‘none

stringent State

requirements.

114-1 an

---

-13-

Section

7.2 also generally requires

the

Board

to

adopt

the

verbatim

text

of

the

USEPA

rule.

Public

Health has recently implemented pan.

7459 by

amending

77

Ill.

Adni.

Code

900,

at

13

Ill.

Reg.

12578,

effective August

1,

1989.

The adoption

‘of

federal

rules consists

mainly

of

inconponations

by

reference of

40

CFR

141;

for

example,

see

77

111

.

Adw.

Code

900. 30.

There

has

been little effort

to

set

out

the verbatim text

of

‘JSE?A

rules

as

applicable

to

non—LOSs.

The Board

interprets Section

17.5

as

requiring

it

to adopt the entire

text

of

40 CFR

141,

as

app

icable

to both LOSs and

non-CUSs.

The Agency

is

to

imp

ement

the ponti

on

of

the

roles

appl icab

e to LOSs,

Puo

ic Health

the

portion applicable

to non-CUSs.

The

Act clearly

contemplates that

the Board

has authority to adopt

regulations with which other agencies must

comply.

Section

47 provides:

The State

of

Illinois, and

a

its agencies,

institutions, officers and subdivisions

shall

comply

with

all

requirements, prohibitions,

and

other

provisions

of the the Act

and of regulations

adopted

thereunder.

(Ill.

Rev.

Stat.

1987,

ch.

111

1/2, pan

1047(a)).

Furthermore,

Section 7.2(a)(5)

of

the Act, which governs

identical

in

substance rulemaking,

provides that,

in

adopting

an

identical

in substance

regulation:

...Tmie

Board

regulation

shall

specify

whether

a

decision

is

to

he made by

the

Board,

the

Agency

on

some

other

State

agency,

based

upon

the

general

division of

functions within this Act

and

other

Illinois statutes.

(II.

Rev.

Stat.

1983 Supp.,

ch.

111

1/2,

par.

1007.2(a)(5)).

As

the Board

sees it, the General Assembly intended the

Board

to adopt

the verbatim text of

40 CFR

141,

as applicable

to non-CUSs, to

establish the

minimum requirements

applicable

to non—COSs.

The rules

are to

be

implemented

by

Public

Health, which

also has

the authority to adopt additional,

no more

stringent requirements.

Once the Board

rules are

adopted,

Public Health may

elect

to

replace the general

references

to

federal

law

in

its

rules with cross

references

to the Board’s

identical

in substance rules.

As

is

discussed

above,

the

Board

is moving

its “additional

requirements”

into

tois

Part,

so

as

to

afford

a

complete

statement

of

requirements.

However,

the

addi tional

requirements

are clearly applicable only to

CUSs.

The

Board has

reviewed

the

‘ules

to make certain

that this

is correctly stated

with respect

to each additional

State

requirement.

The

Boa”d

has also added

to Section 611.100

an

introductory provision so stating,

so

as

to provide

a

genera

rule

to cover

army omissions.

Another

aspect

of

Pub

ic

Health’s

jurisdicti

on

over

nun—LOSs conce”ns

perami ts

and

other

approvals,

and

ncpo—ts.

it

is clear

that

the

statute

did

not

i ntenj

to

dud

ic~tethese

nequi

remnants

for non—CUSs.

Tue

Board

Has

re’~’ie~~ed

the

rjes

,

an~I inserted

“or,

for

non—CUSs,

Pub

ic

Heal

tb’

at

points

Il 4--

161

---

-14-

where confusion

is

likely.

Howeve’-,

there

a-c too macny

of these

to change

all

of them witnout

introducing more confusion

into

the

rules.

The Board

has

also

added

an

int’-oductony provision

in

Section

611.100 to coven

the general

situation.

MASTER

PERMIT

40 CFR

141 includes

in

excess

of

55

“unless

otherwise specified by

the

State”

provisions.

In

the pnoposa

the Board

provided that the Agency was to

specify most of these “by permit condition”.

The Agency objected

that,

iii

PUSs,

it

does not

issue

a

“master

permit”,

but rather

issues construction

permits

for each project.

The

“operating permit”

in

35

I.

Adm.

Code 602.102

is

used only

to assure that

a project

has

been completed

in accordance with

the construction permit.

(PC

5

and

14)

Because there

is

no “master

permit”,

there would not generally be

an outstanding

permit

on

application

to

form

a

procedural

context for these decisions.

Pursuant

to

the

suggestion

in the

Agency’s post—adoption comment,

the

Board

has

added

Section

611.110,

which,

as

is

discussed below, provides

for

a “special

exception permit”

as

a vehicle

by

which the Agency makes these decisions.

RETAINING PARTS

604

-

607

The

June

29,

1989

disinfection

and

filtration

rules

have

a

number

of

delayed effective dates.

The Agency pointed out that immediately

repealing

the existing Parts, while adopting the

new

Parts

with

delayed

effective

dates,

would deregulate many PUSs during

the

phase-in

of the new rules.

The

Agency’s

suggestion

is

to

drop

many

aspects

of

the

disinfection

rules

from this Docket,

and

to address

them

in

a

series

of

rulemakings

as

the

delayed

effective

dates

approach.

However, Sections 7.2 and

17.5 of

the Act

are

keyed

to

“adoption”

on

“promulgation”

of

rules

by

USEPA,

not

to

the

effective dates

of the rules.

Fo

lowing

this

course would run counte’

to

the

time

requirements

of

Section

7.2(b)

of

the

Act.

It

is

arguable

that

the

USEPA

rules

are

presently

less

stringent,

and

hence

need

not

be

adopted

under Section

7.2 of

the

Act.

However,

what

would

then

be

the

trigger

for

the

one

year deadline?

One

could go

on

to

argue that

Section

7.2

of

the

Act

requires

the

Board

to

initiate identical

in substance

rulemaking

one

year

prior

to,

and complete rulemaking just prior

to,

the

effective

date

of

any

USEPA

rule

which

would

he

more

stringent

than

the

pnesently more stringent State

rule.

However,

this

is remote

from the actual

language of

Section

7.2.

The Agency’s suggested course would

involve

a series

of actions

and

filings over several

years.

in

the event

of

an

appeal,

it would

be uncertain

whether

the Board would

be able to

carry out

the required

future

filings while

jurisdiction was

with the Appellate Court.

The

Board

has

construed Section 7.2 of

the Act as

requiring the

Board

to

adopt

the

needed

rules within one year of USEPA adoption, providing

any

needed

transitional

rules

at

that time.

Where

the

USEPA rule

is

presently less

stringent,

the

Board will

provide that the State rule continues

up

to

the

effective date

of the more stringent USEPA

requi”enient.

ii

4-I

02

---

-15-

The

Board

had

proposed

to

repeal

all

of

Parts

604

though

607.

tde

have

identified the “presently

more

stringent”

equi rements

,

based

on

the Agency’s

comment,

and

retained

them,

in

their

p’’esent

locations.

(PC

5)

The Board has

added

“until

the effective date”

of

the

new rule

clauses

to

them.

These

actions

are

summarized

in

a

Table

at

tile end

of tois Opinion.

IEPA TREATMENT REQUIREMENTS

The June

29 USEPA disinfection

rules

include

“treatment

requirements”.

The

Agency

has

“criteria”

which

specify

treatment

technique

nequiements,

which

the

Agency

claims

are

none

stringent

than

the

USE PA

treatment

technique

requirements.

The

criteria

include

35

I.

Adm.

Code

652,

653

and

654.

Specifically,

the

new

USEPA

rules

require

PWSs

using

surface

water

to

filter,

with

some

exceptions.

The

Agency

claims

that

35

111.

Adm. Code 654.101(d)

requires

a

surface

supplies

to

filter.

Tne

Agency

wants

tile

Board

to

omit

the

treatment

technique

requirements

from

this

rulemaking,

and

defer

to

the

Agency’s

criteria.

(PC

5)

There

are

several

problems

with

this.

USEPA

has

adopted

these

treatment

technique

requirements.

Sections

7.2

and

17.5

of

the

Act

require

the

Board

to

adopt

“identical

in

substance”

rules.

Section

7.2

of

the

Act

provides

that

the

regulations

should

reflect.

any

“consistent,

iore

stringent

regulations

adopted

pursuant

to

the

ru~making

requi rements

of

Title

VII

of

this

Act”.

This

does

not

authorize

retention

of

more

stringent

Agency

criteria,

which

have

not

gone

thnough

full

Title

VII

rulemaking.

As

is

discussed

above,

Section

5(b)

requires the Board

to “determine,

define

and

implement

the

environmental

control

standards

applicable

in

~the

State

of

Illinois”.

Sections

4(g)

and

39

of

the

Act

authorize

the

Agency

to

adni ci ster permit systems establ

i shed under

the Act

on Board rules.

Ohether

the

Agency’s

criteria

are

valid

depends

on

whether

they

are

ancillary

to

the

Agency’s authority

to

administer

the

permit

system,

or are

“environmental

control

standards”.

The

Act

does

not

authorize

the

Board

to subdelegate

its

rulemaking

authority

to

the

Agency.

Nor

is

35

Ii.

Adm.

Code

602.115

such

a

subdel egati on.

Under

the

existing

PUS

rules,

Board

regulations

set

performance

standards,

including

numerical

standards

for

turbidity,

chlorine

residual

and

bacteria.

The

Agency

is

obligated

to

issue

permits

for

treatment

works

designed

to meet these perfomnance

standards.

if

the Agency

makes

a

pa1 icy

dcci sion,

as

opposed

to

a

dcci sian

on

an

individual

permit,

that

certain

treatment

methods

meet

Board

standards,

Section

3.09

of

the

APA

“equines

that

it

promulgate

a

rule

stating

the

pol icy.

For

example,

if

a

Board

rule

requires

th~Agency

to

issue

permits

requi—ing

PUSs

to

meet

standard

X,

the

Agency

might

make

a

pol icy

decision

that

treatment

techni ~ues A,

B

and

C

meet

standard

K.

if

the

Agency

makes

such

a

dcci sion

as

a

pol

icy,

it

should

promulgate

a

rule

speci fyi

ng

that

the

techniques

meet

the

Board

standard.

Many

of

the

Agency

cni term

a”e

valid

APA

rules

interpreting

Board

regulations.

The Agency’s cnitenon

requi ring

fi

1 trati

on,

35

Ill

.

Adm.

Code

11

4—i

(,

---

-16-

654.101(d),

is

invalid,

because

it

is

setting

an

additional

environmental

control

standard,

rather

than

interpreting

Board

regulations.

For

example,

consider

an

applicant

who

demonstrated

that

an alternative

to “coagulation,

clarification, rapid

sand filtration or

its

equivalent” met

the nequiements

of Board

regulations.

Section

654.101(d)

is

purporting

to

give

a

basis

for

permit denial

for

something which meets Board

regulations.

As

such,

it

is

invalid.

In

the

alternative,

it

is

arguable

that

the

“on

its

equivalent”

provision

in

the criterion authorizes other methods which meet

the Board

performance

standards, thereby making

the criterion valid.

(Note, however, that

this

interpretation

is

inconsistent with

the Agency’s

basic

argument that

it

already

requires “complete treatment”.)

Under this alternative interpretation

of the criterion,

the Board must

still

adopt

the USEPA treatment technique

requirements.

Once the new rules

are

adopted,

the

existing

Board

performance

standards would

be

gone,

so that there would

be

no

way

to judge whether the

alternative was

“equivalent”.

indeed, alternative treatment techniques

must

be

considered

by

way

of

an

adjusted

standard

(a

“variance”

under

Section

1415(a)(3)

of

the

SDWA).

(See

Section

611.113).

Under

the

alternative

interpretation,

the Agency criterion

is

inconsistent with

the SDUA.

The

USEPA treatment requirements involved

in

this rulemaking

are

fundamentally different from the existing Board

regulations

in that they

operate

in

lieu of

performance standards.

For example,

USEPA requires

filtration

and disinfection

in certain

situations

regardless

of whether the

PUS could meet finished water standards without such.

(However, thene are

exceptions.)

These

treatment requirements

are “environmental

control

standards” which the Board

must

adopt under Section

5

of the Act.

The

result

of this

is

that some surface water

supplies

in Illinois which

presently filter

may wind

up

not

having

to

filter under

the SOWA rules,

if

they qualify for one of

the

exceptions

in the USEPA rule.

Howeve-,

this

result appears

to

be mandated

by the Act’s requirement

of

an

identical

in

substance

program,

and

USEPA’s

adoption

of

treatment requirements.

The

problem

can

be

cured

if

the

Agency

proposes

a

more

stringent

rule

to

the

Board

unaer

normal

rulemaking

procedures.

LAB CERTIFICATION AND ANALYTICAL METHODS

The Agency has authority

to certify labs under Section 4(o)

of the Act.

The proposal

deferred

to

this,

and to

the

Agency’s

rules

on

certification.

However, this does not mean

that the Board should

drop

the

specification of

analytical

methods from the proposal

The

Agency

cited

to

its

lab

certification

authority

in

Sections

4(o)

and

(p)

of the Act.

Section 4(n)

of the Act autho’izes

the Agency

to adopt

laboratory standards.

Section 4(o) authorizes certificates

of competency to

labs.

Section

4(p)

requires

the

Agency

to

analyse

samples

for

PUSs.

As

such,

Section

4(p)

is

not

diecty

related

to

lab

ce’’tification.

The

Board

believes

that

the

Agency

intended

to

cite

to

Sections

4(n)

and

(a).

Of

these,

Section

4(o)

is

the

one

which

actually

authorizes

lab

certification.

40

OCR

141

specifies

many

analytical

methods.

Section

17.5

of

the

Act

114-164

---

—~

—

requires the Board

to adopt rules

specifying these methods.

More

generally,

one

needs

to

differentiate

laboratory

certification

f”omi

the

specification

of analytical

methods.

When the Board,

or

USEPA,

acopts

a

concentration—based standard,

it usually specifies

an analytical

method for

determining

compliance.

This

is

pant of

the definition

of the parameter

to

be

regulated.

The

Agency’s role

in

lab certification

is

to

assure that the

laboratory

is

following

the

specifie’J

method.

There

is

nothing

in

Section

4(n) of the Act which authorizes the Agency

to

adopt environmental

control

standards.

Many

standard

methods

have

assumptions

and

biases

built

into

then.

(This

is

discussed

in

Standard Methods,

17th

Edition,

Method

10303)

However,

these

were

accommodated

when

the

standard

was

adopted,

since

the

data

on

which

the

standard

was

based

was

measured

by

the

same

methods.

For

example,

there

may

be

a

systematic error such that

1.0

mg/L

X

is

really

1.2

mg/L

X.

However,

this also means

that,

after

the bias

is discovered,

tile

health

effects on

which standard was based

really were occurring at

1.2 mg/L,

rather than

1.0,

so

that the

standard continues

to protect.

If the Agency were to change the

measurement

method

after

d

standard

was

adopted,

it

would

effecti vely

be

changing

the

standard.

In

the

example, suppose the Agency substituted

a

measurement method

which

eliminated the error.

The effect would

be

to tighten

the

standard, without

any evidence that

a

tighter standard

is

needed

to

protect the

public

health,

or following the procedures

to modify the

standard.

This

is why the agency with standard

setting authority must specify

the measurement methods.

REORGANIZATION

In

its post-adoption comments, the Agency

is continuing

to object

to the

general

organization

of

the

proposal.

(post-adoption

PC

14,

p.

9).

The

Agency

recommends

that

tile

organi zation

“follow

the

OCR

format

as

much

us

possible”.

(PC

14,

p.

12)

However’,

the

Agency

goes

on

to

recommend

a

number

specific

changes

which

would

destroy

the

close

correspondence

between

Part 611

and

40

OCR

141.

This

indicates

that

the

Agency

may

misperceive

the

structure

of

Part

611,

and

its

relation

to

Part

141.

The

Board

will

therefore

digress.

40

OCR

141

has

the

following

outline:

General

Provisions

MC L

s

Inorganics

Organics

Turbidity

Microbiological

s

Rod

i oacti yes

Monitoring

and

Analytical

Requirements

Microbiological

s

Turbidity

Inoryanics

Onganics

ii

-~—

I 05

---

-18-

Radioactiyes

Miscellaneous

Provisions

TNMS

Misplaced Appendices

Reporting,

Pub

ic

Noti fication

and

Recondkeeping

Special Regulations

Special Monitoring for Organics

Special

Monitoring

for

Sodium

and

Corrosivity

Special Monitoring for Lead

MCL Gs

Revised

MCLs

Organics

Inorganics

Microbiological

s

Filtration

and Disinfection

General

Requirements

Analytical

and Monitoring

Reporting

and Recondkeeping

Non-Centralized Treatment Devices

USEPA

starts

out

with

a

simple

structure,

but

then departs

from that

structure.

This

appears

to

have

resulted

because

USEPA

has

run

out

of

room

to

insert

new

provisions.

The

special

monitoring

requirements,

revised

MCLs

and

treatment

requi nements

have

been

appended

to

the

end of

the outi inc

in

an

arbitrary order.

The Board

has simply moved

large blocks

of

JSEPA rules

into

their proper place

in

the original

USEPA outline.

The resulting outline

is

as

fol

1 ows:

General

Provisions

Treatment

Requirements

Filtration

and Disinfection

Point

of Use Devices

MCLs and Revised MCLs

I norganics

Organ i cs

Turbidity

Microbiological s

Rod i oacti yes

Monitoring

and

Analytical Requiements

Miscellaneous Provisions

Microbiological s

Turbidity

Inorganics

I 14—100

---

-19-

Organ ics

THMS

Redioacti yes

Reporting,

Public

Noti fication

and Recor’ikeeping

The structure

which the Agency requested

represents

a drastic departure

from the USEPA rules.

The Agency has asked

the Board

to group

the

MCLs,

and

monitoring,

analytical

and

reporting requirements

for each parameter,

as

follows:

(PC

5,

item

59;

Post—adoption

PC

14,

p.

11,

59)

Organ ics

MCLs

and

Revised

MCLS

Monitoring

and Analytical

Requirements

Reporting, Public Notification and Recordkeeping

I no rg an

i Cs

MCL5

and Revised

MCLS

Monitoring

and

Analytical

Requirements

Reporting, Public Notification and Recordkeeping

Microbiological s

MCLs

and

Revised

MCLS

Monitoring

and

Analytical

Requirements

Reporting,

Public

Notification

and

Recordkeeping

Rad i oacti yes

MCLs

and

Revised

MCLS

Monitoring

and Analytical

Requirements

Reporting,

Public

Notification

and

Recordkeeping

T HM

s

MCLs and Revised MCLS

Monitoring

and

Analytical

Requirements

Reporting, Public Notification

and Recordkeeping

There

one

a

number

of

problems

with this

structure.

The

first

is

that

it

does not follow the USEPA structure at

all.

It would

be necessary to

duplicate

and/on

rewrite

many

USEPA

rules

to

accomplish

this.

Furthermore,

it

does

not

track

the

logical

division

of

functions

within

a

PWS.

For

example,

under

the Agency’s recommended structure laboratory provisions are scattered

throughout

the rules.

On

the other hand,

in the Board

and

USEPA

structures,

laboratory provisions

are

in large blocks.

Moreover,

the

Agency

structure

fundamentally assumes that each analytical

and

reporting

requi nement

is

associated

with

an

HILL, which

is

not

always

the

case.

Another

factor

which

apparently

disturbs

the

Agency

is

the

Board’s

Subpart

headings.

The Subpart headings are

intended

as broad

headings

into

which

related provisions

are grouped.

The

Board believes

that

its

headings

closely

track

the

functional

groupings

of

the

USEPA

rules,

and

that

they

represent

a complete categori cation of

drinking

water

pararnete’s

such

that

any

future

USEPA

rule

could

be

placed

into

the

st”uctu”e without

di

fficuty.

The

Board

does

not

see

any

necessi ty

in

creati

eq

indefi

mmi te

Subparts

for

each

111--167

---

-20-

further subdivision of these categories.

Subpart

0

is entitled

“Organics”.

Since the next Subpart

is

“THMs”,

it

is

not necessary

to

say “Onganics othe~than THMs”.

For monitoring,

the Board

has tracked

the basic

split

in

the

USEPA

rules

between

TUMs

and other organics

(40

CFR

141.24

and

141.30).

As

to the other onganics,

the USEPA rules

include

many subclassifications:

pesticides and

three

lists

of specific onganics.

(See

40

CFR

141.12,

141.24,

141.40,

141.61).

The scatte~’ing of these

provisions

appears

to

result

from

USEPA

having

run

out

of

space,

rather

than

any

fundamental

regulatory policy.

The

Board

has

also

rearranged

the

USEPA

rules

at

lower

levels.

First,

USEPA

tends

to

append

general

provisions

to

the

end

of

a

Subpart.

The

Board

has moved

the general

provisions

to

the

beginning

of

the

Subpart.

Second,

the Board

has factored large blocks of repeated language of the

USEPA rules,

and made them genera

provisions.

For example, Section

611.213

isdrawnfrom400FRl4l.72(a)(4)(ii), 141.72(b)(3)(ii),

141.74(b)(6)(ii),

141.74(c)(3)(ii), 141.75(a)(2)(vii

)

and

141.75(b)(2)(iii

).

At

the subsection

level

there

is

also

a

close correspondence between the

Board

and

USEPA

labels.

Although

the

labels

correspond,

they are not

identical.

This

is

for

two

reasons.

First,

the

long

USEPA

Sections

have

generally been broken into Board

Sections at the

first

level

of subdivision.

Second,

the

subsection labels

required

by the Code Division are not

the same

as

in

the

OFR.

For

this

reason

it

is

necessary

to

translate

subsection

labels.

The

following

example

illustrates this process:

Section 611.232

40 OCR 141.71(b)

(a)(1)

(1)(i)

(a)(2)

(1)(ii)

This simple translation breaks down

at

a

few

points,

such

as

in

Section

611.232(b),

which corresponds

with

40 OCR

14i.71(b)l~2).

The

USEPA Section

contains

a “hanging

paragraph”,

which cannot

be

simply codified under Code

Division

regulations.

In

some situations

a USEPA subsection

has no Board

counterpart.

For

example,

as

is discussed above,

some USEPA provisions govern the authorization

process.

In these

cases, the Board

left

a

“hole”

in

the numbering,

in order

to preserve

the correspondence with USEPA

subsection labels, which

is

necessary to

allow cross-reading of the texts.

The Agency has persisted

in

characteni zing

these

as

‘mi

snumbenings”,

even

though

the

Board

has

taken

care

to note

all

of them specifically

in

the Opinion.

The Code Division does not

allow the Board

to

insert

the

word “Reserved”

to mark these

holes.

However,

the Board

has attempted

to

respond

to

the dilemma

by

inserting

an

explanation

in

Section 611.100(e).

The Board will

cross

reference the explanation

at

the

holes.

However,

this may cause the rules

package

to

be rejected.

The

Board

has

also

followed

a

rule for assigning Section numbers.

As

noted,

the

USE

PA

Sections

have

been

broken

at

the

first

level

of

I

14—lOS

---

-21-

subdivision.

The Board

has “reserved”

10

to

20 numbers

for each USEPA

Section.

The

final

digits

of

the. Section number

indicate the

USEPA subsection

f’om which the Section was drawn.

For example:

35

II.

Adm.

Code

40 2CR

611.230

141.71,

introduction

611.231

141.71(a)

611.232

141.71(b)

611.233

141.71(c)

611.234

—

.239

“Reserved”

In

some Sections

the USEPA subsections are not

all

long enough to

be

complete

Board

Sections.

in

these

situations

the

Board

has

lumped

USEPA

Sections,

following

the

above

rule

with

respect

to

the

first

USEPA

Section

in

the lump.

For

example:

35 Ill. Adm. Code

40 OCR

611.650

141.40(a)

-

(f)

611.651

—

.656

“Reserved”

611.657

141.40(g)

—

(m)

611.657

—

.679

“Reserved”

COMBINING

MOLs

40 OCR 141

includes three types

of numerical

finished

water standards:

“HILLs”,

“national

revi sod

MCLs”

and

“MCL

goals”.

In

the

proposed

Opinion

the

Board

asked what the difference was:

What

is the difference between

an

MOL and

a “national

revised

I-ICE”?

The

preamble discusses MOLG’s, NPDWR’s,

MCL’s,

treatment techniques and BAT’s,

hut never

mentions

“national

revised MOL’s”.

(52 Fed.

Reg.

25691, July 8,

1987).

The Board

assumes that

a

“national

revised

HILL”

is

the

same

as

an

“MOL”;

but,

USEPA

is

placing

into

a

separate

Section

MOL’s

adopted

after the 1986

SDWA

amendments.

This may be

in

part

because

of the different “variance”

requirements

under

Sections

1415 and 1416 of the SDWA,

and

the

requirement

to specify

an

MOLG.

Assuming

a “national

revised

HILL”

is

the same thing

as

an

HILL,

is there

any

need

to keep these

standards

separate

in

the. State regulations?

Would

it

simplify

the regulations

to consolidate these

lists?

The Board

solicits coment

on

this.

(Proposed Opinion,

p.

35)

The

Board

received

no direct response

to this question.

(PC

5,

item GO,

61)

in the May

24,

1q90,

Opinion,

the Board decided

to

keep the

HICLs

separate

from the revised

HILLs,

because of

possible differences

in

the

applicability of

SDWA

van

ances

*

(p.

18).

how

the

Agency

has

c

eanhy

commented

to

time

effect

that

it

wants

the

MEL

and

nevi

sed

MCL

tables

combined.

(post-adoption

PC

14,

ii

4-1 ~

---

—22—

p.

36)

USEPA appears

to

agree that the Board

is

to choose the currently

enforceable MCL,

and

adopt

only that.

(PC

12)

As was discussed

in

the earlier Opinions,

there

are other

possible ways

to

read these

USEPA rules.

The

first

is that

the

1986

amendments

to

the

SDWA

were

a

legislative

repeal

of

the

old

HILLs,

such

that

the

revised

MCL5

are

the

only enforceable standards.

The Agency and USEPA have still

not directly

addressed this possibility,

but

it

is

fairly clean

that they do

not agree that

this

is this case.

The

second

has

to

do

with

whether USEPA will

repeal

the

old MCL

at the

time

it adopts

a

revised

MOL

for

a

parameter.

Apparently,

both

the Agency and

USEPA believe that USEPA

will

leave

the

old

HiLL

in

place.

(PC

12; post—adoption

PC

14,

p.

36)

If this

is

to be

the case,

it

is

important

that

the

Board

combine

the

MOL

tables

to

avoid

possible

confusion.

In

connection with

the MCL/revised MCL question, the Agency

has

node

a

comment which appears

to

reflect

a questionable interpretation of

the SDWA.

The

Agency

has

stated that

the

“VOCs”

in

40 OCR 141.61

and

35

Ill.

Adm.

Code

611.311 are

“new

standards,

not

nevised

standards”.

(post—adoption

PC

14,

p.

38)

These are clearly labled

“revised tIOLs”

in 40 OCR 141.61.

USEPA appears

to

use the term “revised

MOL”

for any MCLs adopted

pursuant to

the 1986

SDWA,

whether

they

replace

an

earlier

standard

on

not.

These

are

“revised

MOLs”

adopted with

a

specification of BAT and

an

MCLG.

For

its discussion

on the difference between

HiLLs

and

revised HiLLs,

the

Board

researched

the

following

items:

The

SDWA;

USEPA proposed MOL5 at

54

Fed.

Reg.

22062, May

22,

1989;

“The Safe Drinking

Water

Act Amendments

of

1986:

Now a Tougher Act

to Follow”, by

K.

F.

Gray,

16 ERL

10338.

The

SDWA

was

enacted

in

1974.

Pursuant

to this law,

USEPA promulgated

“MOLs”

and

“Recommended

HiLLs”.

The

SDWA was

amended

in

1986.

USEPA

is now required

to promulgate

“National

Revised

Primary

Dninking

Water

Regulations”.

The

“revised

MCLs”

in

40 OCR

141.60

represent MOL’s which

have been adopted pursuant to

the 1986

amendments.

At

the time

it

adopts

a National

Revised

Primary Drinking Water

Regulation,

USEPA also specifies

BAT, and

adopts

an MCLG.

The MCLG replaces

the

Recommended

MOL

under

the

1974

law.

In

addition

to

MCLs,

USEPA

is

to

adopt

treatment technique requirements,

such as the filtration

and

disinfection requirements discussed above.

In

the

proposed Opinion, the Board

suggested that MOLGs were policy goals

only, which did

not

need

to

be

in

the

State program,

and solicited comment.

No

response

was

received.

(PC

5,

item

61)

The

Board

determined

that

USEPA

does

not

require

states

to

adopt

MOLG5.

(54

Fed.

Req.

22062,

May

22,

1989).

In

the

May

24,

1990,

Order,

the

Board

dropped

the

MCLGs, and specifically

requested post-adoption

comnnent.

The Agency

has stated

its

support

for

dropping the MOLGs.

(post-adoption

PC

14,

p.

13)

“HiLL”

is

defined

in

40

OCR

141.2.

This

is

the

closest

USEPA

comes

to

saying

that

“no

PUS

shall

exceed

the

HiLL”.

As

is

discussed

below,

the

Bound

has

moved

this

prohibition

out

of

the

defini tions

Section

and

into

the

body

of

the

rules.

(Section

611.121).

114-178

---

—~- ~—

RDC,

HPC

AND

‘CONFINED

FORMATIONS

The post—adoption comments

raised

several

global

issues which

involve

none

than

one

Section.

The

Board

be

ieves

tOut

the

coninents

on

these

issues

arise

from what appears

to

be

a misreading

of

the “no

method

of measuring HPL”

determination of Section

611.213.

We construe

the applicability of this

provision

as narrow,

as

an

“exception

to

an

exception” drawn directly from

federal

rules,

and thus not

a majo-

issue.

As

is discussed below,

the Board

has added

introductory language to avoid

any future misinterpretation.

Although these comments have resulted

in

only

a minor change

to

the rules, the

Board will

respond

to

these comments

in detail,

so

as

to clarify the issues.

Accordingly these

and

related

issues

involving RDC and HPC

have been added

to

this introductory discussion.

IS

THE

STATE’S

EXISTING

REQUIREMENT

TO

MAINTAIN

AN

ADEQUATE

CHLORINE

RESIDUAL

A

CONSISTENT,

MORE

STRINGENT

REQUIREMENT

WHICH

THE

BOARD

OUGHT

TO

RETAIN

IN

LIEU

OF

ADOPTING

THE

NEW

USEPA

REQUIREMENTS?

As

is discussed

in general

above,

Section

7.2(a)(6) requires

the Board

regulations

to

reflect

consistent,

more

st-ingent

State

regulations.

Are

the

Board’s existing requirements more stringent

and consistent with the

new

USEPA

disinfection requirements?

USEPA Requirements

The USEPA rules

include three

disinfection rules.

The rules are slightly

different

depending

on

whether

the

supply

must

filter,

but

the

differences

are

not genmaine to

this discussion.

The rules

are contained

in

40

CFR

141.72(a)

and

(b), which are reflected

in

35

Ill.

Adm. Code 611.241 and 611.242.

The

Board will

focus

on

40 OCR

141.72(a),

since

this was the

focus

of the

post-

adoption

coniiient.

The

three

rules

are

as

follows:

40

OCR

35

IAC

Summary

141.72

611.241

(a)(i)

(a)

99.9

inactivation of G.

Lamblia cysts,

and

99.99

inactivation

of

viruses

(a)(3)

(c)

RDC

entering

the

distribution

system must not

be

less

than

0.2

mg/L

for

more

than

4

hours.

(a)(4)(i)

(d)(1)

RDC

in

the

distribution

system

cannot

be

u~ndetectablein

more

than

5

of

the

sanlp~eseach

month,

for

any

two

consecutive

months.

An

HPC

count

less

than

500/mnl

implies

that

RDC

is

“detectable”.

40

CFR

141.72

requires

disinfection

of

PUSs

which

use

a

su’face

wate’

or

*The Agency

appears

to asset

that

this

provi si

on

is

not

present

in

tile

USEPA

rules.

As

is

discussed

below,

we

bel~evn

that

the

USEPA

rules

include

this

presumotion.

I

14--171

---

—

L

t

—

“groundwater

under the influence of surface water”.

In other words,

it

exempts groundwater

not

“under the influence of surface water”

from the

disinfection requirement,

including chlorination.

In

addition, 40 OCR

141.63

(reflected

in

Section 611.325) sets MCLs

for

microbiological

contaminants.

No

moore

than

5

of

of samples

in any month may

be

total

coliform positive (“P/A Standard”).

Existing Board Requirements

In the existing Board

rules,

Section 604.102 sets total

coliform limits,

which

depend

on

the

method

of

analysis

employed.

With

the

membrane

filter

technique, the

arithmetic mean coliform density cannot exceed

1

count/100

ml.

Nor can coiform

colonies exceed 4/lOOm

in

any sample.

With the

fermentati

on

tube

method,

no

more

than

10

of

samples

in

any month

can show

the

presence

of

coliform

bacteria.

When

bacterial

plate

counts

(“HPC”

in

the

USEPA

rules)

are taken,

Section

604. 105

sets

a

standard

of

500

counts/ml,

based

on

the

an

thmnetic

average

of

a

samples

taken

in

a

mnonth.

Section 604.401

requires that

a

supplies chlorinate water before

it

enters the distribution system.

Section 604.401(a)

requires that

all

supplies

which are required

to chlorinate maintain residuals of free or combined

chlorine

at levels

“sufficient to proiide

adequate protection”.

Section 17(b)

of the Act

requires the Agency

to exempt

from “any

mandatory chlorination requirement of the Board”

any

CWS which meets certain

criteria.

A key criterion

is

that the OWS draw water

from “confined geologic

fomations”.

Comparison of

Sub-requirements

The

USEPA

and

existing

Board

requirements

constitute

“clusters”

of

related

requirements.

It

is

very

difficult

to

make

a

true comparison

of these

clusters

by

comparing

related

sub—requi

rements.

One

reason

is

that

some

comparable

sub—requirements

serve

a

different

function

in

the

two

clusters.

For

example,

the

“HPC”

or

“standard

plate

count”

is

used

in

the

USEPA

cluster

in association with the requirement

to maintain

an adequate RDC.

500/mi

implies

an

adequate RDC.

On

the other

hand,

in the existing State cluster,

there

is

a numerical

MCL associated with the standard plate count.

These

happen

to

be

the

sane number

(500/rn

),

but

what

does