9±8~88945~83e99+892
IT IS SO ORDERED
Dorothy M. Gur’in, Clerk
Illinois Po1~utionControl Board

ILLINOIS POLLUTION CONTROL BOARD

January 25, 1990

IN THE MATTER OF:

AMENDMENTS TO T:TLE 35,

)

 R88-21,

 DOCKET A

SUBTITLE C (TOx:cS CONTROL)

ADOPTED RULE

 FINAL ORDER

OPINION AND ORDER OF THE BOARD

 (by R.

C.

 Flemal)

This matter comes

 before the Board upon

 a regulatory

proposal

 filed August

5,

1988

 by the Illinois Environmental

Protection Agency (“Agency’).

 The purpose of the proposal

 is to

make additions

 to and to amend the Board’s regulations for the

control

of

 toxic substances

 in surface waters.

 This proceeding

has been expedited pursuant

 to the procedures

 of Section

 28.2 of

the Illinois Environmental Protection Act

 (“Act”)

 (Ill.

 Rev.

Stat.

 ch. l1l~, par.

 1001 et seq.).

The amendments are reflective

of

 the mandate of Section

303(c)(2)(B)

 the Federal Clean Water Act

 (“CWA”)

 (33 U.S.C

1251

et seq.),

 as well

 as advances

 in the sciences

 of toxicology and

chemical detection.

 The policy underlying the amendments

 is that

the waters of Illinois must

not

be

 impacted by toxic substances

in

 toxic

 amounts..

Implementation of this policy

 in the instant rules

is

achieved by two basic refinements of

 the previous

 regulations.

The first consists of refining the value of the numeric standards

found at

 302.208

 to bring

 them into agreement with the best

available current knowledge.

 The second consists of providing a

detailed,

 specific set of directives and procedures,

 found at

302.210 and 302.Subpart

F,

 which are used

 to define what

constitutes a toxic amount for those substances

 for which numeric

toxicity criteria are not provided.

Beyond the amendments required

 to bring

 these two basic

refinements

 to fruition,

 the instant

 rules contain

 a variety of

additional

 amendments which

 are required to bring the rest

of

the

Board’s water regulations into conformity with the basic

refinements.

Among

 the principal of

 these

is

 refinement

of

the

Allowed Mixing concept at Section 301.102.

PROCEDURAL HISTORY

This matter contains an involved procedural history,

commensurate with the breadth of issues involved and the interest

107—267

—2—

and concern thereby generated.

 In this section the Board reviews

the salient aspects

 of this history.

Pre-Hearing Conferences

Subsequent

 to the August

5,

 1988 filing of the Agency’s

initial proposal

 (Exh.

 27),

 the Board,

 upon motion by the Agency

and the Illinois Environmental Regulatory Group

 (“IERG”),

directed

 that

 a pre—hearing conference

 be held on September

28,

1988 pursuant

 to the procedures of

 Section

 27(e)

 of the Act.

On

October

6,

 1988,

 the Board entered an order directing the Hearing

Officer

 to schedule a second pre—hearing conference

 to address

drafting

 issues and conformance with

 the requirements

of

the

Administrative Procedure Act

 (“APA”).

 A second pre—hearing

conference was accordingly held October

14,

 1988.

As

 a result

of

discussions concerning modifications necessary to meet

the

technical drafting requirements of the APA, on October

28,

1989

Board staff issued and served upon the notice list,

 an edited

draft of

 the Agency’s proposal “solely intended

 to aid the Agency

in drafting the proposal”,

 accompanied by an explanatory

memorandum

 (Exh.

 77).

 The memorandum noted incorporation by

 reference and vagueness problems as being

 of particular

 concern

to the Board.

Pre—First Notice Hearings

Seven days of hearing,

 at which 77 exhibits were generated,

were held prior

 to the Board’s First Notice action.

 ‘These

hearings where held on November

 18, and December

 6 and

7,

 1988,

and February 16 and 17, and June

 13 and

14,

 1989.

 A synopsis of

the testimony received at each of these hearings was presented

in

the Board’s First Notice Opinion~-, p.

 5—9, and will not be

repeated here.

Revisions of Agency Proposal

The original Agency propossl experienced various

 revisions

based upon activities prior

 to First Notice.

 These proposals

have been entered

 into the record

 as Exhibit

29

 (original

proposal),

 Exhibit

43

 (revised proposal dated February

9,

 1989),

and Public Comment

#8

 (revised proposal dated August

9,

 1989).

The principal

 revision accompanied

 the February

9,

 1989 version,

in which

 the Agency added to

 its proposal,

at

 the Board’s

suggestion,

 the procedures used

 for deriving criteria as now

represented by 302.Subpart

F.

 Previously,

 these procedures had

 been proposed as Agency policy rather

 than as

 a Board regulation.

1 Full citation:

 In the Matter

 of: Proposed Amendments

 to Title

35, Subtitle C

 (Toxics Control), R88—2l, August

31,

 1989.

I07—26~

—3—

Pre—First Notice Public Comments

Pre—First Notice Public Comments

 (“PC”) were received from

the following persons:

 Pfizer Pigments,

 Inc.

 (PC #1);

 Sanitary

District of Rockford

 (PC #2—4); Metropolitan Waste Reclamation

District of Greater Chicago

 (PC #5);

 Illinois and National

Wildlife Federations

 (“IWF/NWF”)

 (PC #6);

 Amerock Corporation

(“Amerock”)

 (PC #7);

 the Agency

 (PC #8,

 #9);

 Illinois Steel Group

(“Steel Group”)

 (PC #10); Village of Sauget

 (“Sauget”)

 (PC #11);

and IERG

 (PC #12).

 These comments provided information and

insights employed by the Board

 in formulating

 its First Notice

proposal.

Determination of Federal Requirement

Section

 28.2 of

 the Act establishes expedited requirements

for federally required rules.

 Among other

 things,

 Section 28.2

establishes

 a procedure for Agency certification that rules are

federally

 required.

 On January

 13, the Hearing Officer entered

an Order directing

 the Agency

 to file

 a Section

 28.2

 formal

certification.

 This certification was filed with the Board on

February

 10, 1989.

EcIS

On January

5,

 1989,

 the Board adopted RES

 89—1,

 In the

Matter

 of: Application of Procedural Amendments

of

 P.A.

 85—1048

to Newly Filed and Pending Regulatory Proceedings.

 In that

Resolution,

 the Board addressed the significant procedural

changes

 in the Act enacted

in

SB

 1834,

 P.A.

 85—1048,

 effective

January

1,

 1989.

 The Board determined

 that

 SB 1834 would

 in some

measure apply

 to proceedings filed before its effective date,

citing McQueen

v.

 Conner,

 385 Ill.

 455,

 459 N.E.

2d

 435,

437

(1943)

 and Nelson

 v. Miller,

11

 Ill.

2d

 378,

 143 N.E.

 2d 673

(1977).

 ‘The Board noted

 that Section

 27(a)

of

 the Act,

as

amended by SB

 1834, allows and requires the Board,

 rather

 than

the fllinois Department of

 Energy and Natural Resources

 (“DENR”)

to determine whether an economic

 impact study

is

 to be

performed.

 For pre—1989 filings,

 the Board construed SB

1834

 “as

providing that any final conclusion

 reached by DENR prior

to

December

31,

 1989 regarding

 the need

for

 an EcIS

 is conclusive

in

that proceeding

“

 (RES 89—1

at

2).

 As DENR had notified the

Board of

 its decision

 to conduct

 an EcIS by letter filed December

21,

 1988,

 the Board has made

 no EcIS determination

 in this

proceeding.

On August

9,

 1989 DENR filed

 a first—installment

 EcIS titled

“Analysis

 of Proposed Revisions

 to SubtitLe C Toxics Control

Program: Pollution Control Board Docket R88-21.

 Hearing Copy”

(Exh.

 82).

 On November

2,

 1989 DENR,

 filed

 a supplemental EcIS

document titled:

 “Analysis of Cost Relating

 to Proposed Revisions

107—269

—4—

to Toxics Control Program: Pollution Control

 Board Docket R88—21”

(Exh.

 96).

 This document was updated and submitted as Exhibit

108.

 On November

17,

 1989 DENR provided further economic

analysis within PC

 #24.

Pre-First Notice Timetable

By Hearing Officer Order of July

12,

 1989,

 the Board’s

projected timetable was set forth,

 and an August

9,

 1989 date set

for submission

 of any written comments which participants wished

to have fully considered by

 the Board prior

 to adoption

of

a

proposal

 for First Notice.

 Assuming the applicability of

a

February

4,

 1990 adoption deadline,

 the Order

 noted that

 to allow

time

for

 the running of each of

 the APA’s 45—day First Notice and

45-day Second Notice periods, Board action on

 a First Notice

proposal was necessary in the last week

 in August

or

 the first

week

 in September,

 and on

 a Second Notice proposal

 in the

 last

week

 in November or the first

 week

 in December

 to allow

for

 final

adoption of

 a proposal on

 or before January

25,

1990

 and receipt

by the Secretary of State

 of the final

 rule by early February,

1990.

First Notice

The Board

 by separate Opinion and Order adopted

 a modified

version

 of the Agency’s proposal

 for First Notice on August

31,

1989.

 First Notice publication occurred at

13

 Ill.

 Reg.

14152

September

15,

 1989.

 On September

 28, 1989 the Board issued

a

Supplemental

 First

 Notice Opinion expanding upon certain matters

related to the First Notice Order.

‘The rule proposed for

 First Notice contained many

 format,

as

well

 as some substantive, modifications

 of the Agency’s then

current proposal

 (August

9,

 1989 version).

 The formatting

modifications will

not

be

 reiterated here;

for

 a full summary,

the interested person

 is directed

 to the First Notice Opinion,

p.

22—34.

Among substantive modifications made

by

 the Board at First

Notice were additions of

 incorporations

 of reference and

severability sections, modifications

 to definitions,

and

modifications of the mixing

 rule

 (see First Notice Opinion at

p.

25—34)

Post—First Notice Hearings

Subsequent

 to First Notice seven additional days

 (September

18—19. October

 2-3,

 and November

 6—8)

of

 public hearings were

held.

 The interested person

 is directed

 to Second Notice

Opinion,

p.

3,

for

 a synopsis of the content

of

 these hearings.

Collectively,

 the seven post—First Notice hearings produced

44

additional exhibits,

 Exh.

 78 through

 Exh.

 121.

107—270

—5—

JCAR Preliminary Review

On October

 25, 1989 the Joint Committee on Administrative

Rules

 of the Illinois General Assembly

 (“JCAR”) filed

 a response

to the Board request

 for preliminary review of the instant

proposal.

 The JCAR response was accepted into the Record as Exh.

122

 in the Second Notice Opinion at

p.

3.

 Additionally, by

letters of October

 25 and 30, 1989

 the Board sought and received

expedited preliminary

 review from JCAR of

 incorporations

by

reference materials.

Post-First Notice Public Comments

Twenty—one Public Comments were filed during the First

Notice Comment period,

 filed respectively by the Steel Group

(PC

#13,

 #26,

 #30),

 Sauget

(PC

 #14,

 #27),

 Amerock

 (PC #15,

 #31)

,

the

Administrative Code Division

 of the Illinois Office of

the

Secretary of State

 (“Code Division”)

(PC

 #16), I~F/NWF

(PC #17,

#18),

 the Illinois Department of Commerce and Community Affairs

(PC

 #19,

 ff2l),

 the Agency

(PC

 #20,

 #25,

 #33), Wildman, Harrold,

Alien

 & Dixon

 (PC #22), United States Environmental Protection

Agency (“USEPA”)

 (PC #23),

 DENR

(PC

 #24), Outboard Marine

Corporation

 (PC #28,

 #32),

 and IERG

 (PC #29).

Second Notice and Docket—Splitting

On December

6,

1989

 the Board,

 by separate Opinion and

Order,

 adopted a modified proposal

for

Second Notice.

 Also,

the

Board on that date split

 the docket into R88—2l(A)

 and R88—21(B),

with the former containing

 the substantive materials previously

adopted

for

 First Notice and the latter

 containing certain

subsidiary matters and matters which had not been previously

first—noticed,

 but which the Board believes may be necessary

to

conform the Board’s overall water

 regulations with the instant

rules.

 R88—21(B)

 has subsequently been on

 its own track, and

will not

 be further

 reviewed herein.

JCAR Second Notice Review

On January

10,

 1990 JCAR issued Certifications

 of No

Objection

 to Parts

 301,

 305, and 309.

 However, SCAR recommends2

certain alterations based on its review of the Second Notice

2 JCAR’s comments are contained

 in letters

 to the Board dated

December

 21 and

22,

 1989;

 these are hereby entered into the

record as Exhibits 123 and 124,

 respectively.

 The Board

responded

 to the SCAR comments by letters dated December

 28 and

29,

 1989;

 these are hereby entered into the record as Exhibits

124 and 125,

 respectively.

107—271

—6—

Proposal.

 These alterations improve the clarity

 of the

 rule

without altering its substance;

 accordingly,

 the Board agrees

to

make the alterations.

 A complete description

of

 the alterations

follows

 in a later section of

 this Opinion.

JCAR Objection and Board Response

On January

10,

 1990 JCAR voted an objection

 to Part

 302 of

the

 instant rules.

 Pursuant

 to Section 7.06(c)

of

 the APA the

Board may

 (1) modify the proposed rule

 to meet SCAR’s objection,

(2) withdraw the proposed rule

 in its entirety,

or

(3)

 refuse to

 modify or withdraw the proposed

 rule.

 On this date,

 January

25,

1990,

 the Board adopted

 a Resolution

 (Res

 90—I,

 R89—2l(A))

setting forth

 its reasons

 for pursuing option

 (3).

The

interested person

 is directed

to

 the Resolution

 for a full

exposition

 of the Board’s position.

 The Resolution

 is hereby

incorporated by

 reference as

 if fully

set

 forth herein.

MANDATE

OF THE CWA

Required Action

Section lOl(a)(3)

 of the CWA states

 as a national policy

objective that the discharge

 of toxic pollutants

 in toxic amounts

shall be prohibited.

 Section 303(c)(2)(B)

of

 the Water Quality

Act

of

 1987 provides that states “shall adopt

 criteria for all

toxic pollutants listed pursuant

 to Section 307(a)(l)

...

as

necessary to support

 such designated

 uses.

.

.

.

 Such criteria

shall

 be specific numerical criteria for

 such toxic pollutants.

Where

 such numerical criteria are not available

.

.

.

 such states

shall

 adopt criteria based on biological monitoring or

 assessment

methods consistent with information published pursuant to section

304(a)(8).”

 (33 U.S.C. §3~3(c)(2)(B)).

In conjunction with the above-quoted provisions,

 the USEPA

published

 a guidance document

 (Exh.

46)

 to aid states

 in adopting

regulations consistent with the requirements

of

 federal

 law.

This document sets forth

 the following three options

 by which

states may meet the requirements of Section 303(c)(2)(B):

1)

 Adopt statewide numeric water quality standards

for

 all EPA criteria

 for section

 307(a)

 toxic

pollutants regardless

 of whether

 the pollutants

are known

 to be present;

2)

 Adopt specific numeric water quality

 standards

for section

 307(a)

 toxic pollutants

 as necessary

to support designated uses where such pollutants

are discharged

 or are present

 in the affected

waters and could reasonably be expected to

interfere with designated uses;

107—272

—7—

3)

 Adopt a procedure to be applied to a narrative

water quality criterion.

 This procedure shall

be

used by the State

 in calculating derived numeric

criteria, which criteria shall

 be used

 for all

purposes under

 section 303(c)

of

 the CWA.

 Such

criteria need to be developed

 for section

 307(a)

toxic pollutants,

 as necessary

 to support

designated uses,

 where these pollutants are

discharged or present

 in the affected waters and

could reasonably

 be expected to

 interfere

 -~‘ith

designated uses.

Today’s

 rules conform to the second and third options quoted

above.

Adoption Date

The Agency interprets

 that federal

 law mandates adoption

of

the

 instant

 regulations

(or

at

 least an equivalent regulation

pursuant to Section 303(c)(2)(E)

of

 the CWA)

 no later

 than

February

4,

1990

 (Exh.

 44).

 The Steel Group has questioned

the

accuracy of the deadline and suggests that Illinois

 is not

required to adopt

 water to~ic regulations pursuant to the CWA

until October

of

1990

 (R2.3

at

 432; PC

 #10).

 According

 to the

Steel Group,

 the 1972 amendments

 to the CWA require each state’s

water pollution agency to review water quality standards once

every

 three years beginning with the effective date of

 the 1972

amendments

 on October

18,

 1972.

 Consequently, Illinois would

have conducted its most recent

 review in October

 of 1987.

Therefore,

 the Steel Group argues that

 the instant

 regulations

need not be adopted until October

18,

 1990.

By Hearing Officer Order

 of July

21,

 1989,

 a letter dated

July

 13, 1989

 to the Agency from USEPA was entered as Exhibit

75.

 This letter reasserts the position of USEPA stated at

hearing

 that the deadline date for adoption of water toxic

regulations is February

4,

1990

 (Exh.

 75).

 The USEPA’s position

as

 to the deadline imposed under federal iaw

 is entitled

to

deference.

 Therefore,

 the Board views February

4,

1990

as

the

deadline for adoption of the instant regulations.

Page numbers

 of the transcribed hearing record are

consecutively numbered for the hearings held on November

 18, 1989

through February 17,

 1989.

 Page nuobering was reset

 to zero with

the June 13,

 1989 hearing record and continued consecutively

thereafter

 to the termination of hearings on November

8,

 1989.

As cited to herein,

 the first numered set

is

 referred to as

 “Ri.

at

“

and

 the second set as

 “R2.

at

“.

107—273

—8—

Federal Requirement of Specific Rules

A subsidiary

 issue concerns what

 the specific portions of

the instant regulations are federally required under the CWA.

The Agency has certified

 that both the specific numeric standards

of Section

 302.208 and the narrative standard of Section 302.210

are federally required

 (Exh.

 44).

 The Agency asserts that

Section 303(c)(2)(b)

of

 the Water Quality Act of

 1987 coupled

with

 the stated policy objective

 set forth

 in Section l0l(a)(3)

of the CWA prohibiting

 “the discharge

of

 toxic pollutants

in

toxic amounts” support

 its certification of the proposal as being

federally required.

The Steel Group has responded

 in detail to the Agency’s

position on

 this issue

 (PC #10

 at 10—19).

 The Steel Group

asserts

 that the narrative standard

 is not federally required and

that

 the requirements

 of the CWA may be satisfied by adopting

specific numeric criteria

 for priority pollutants

 of concern

to

Illinois pursuant to option two of

 the USEPA guidance document

 (Exh.

 46).

 The Steel Group opines that,

 according to the

guidance document,

 the narrative standard may

 be used as

a

supplement

 to options one and two,

 but that

it

 is not required.

Moreover,

 the Steel Group argues that even when a narrative

standard

 is used

it

 is limited

 to “toxic pollutants

 ‘the

discharge or presence of which

 in affected waters could

reasonably

 be expected to

 interfere with

 those designated uses

adopted by the State, as necessary to support such designated

use’,

 33 U.S.C. §l313(c)(2)(B)”

 (PC #10

 at 11).

 The Steel Group

contends

 that the Agency’s proposal goes beyond

 this federal

requirement

 by regulating non-priority pollutants.

 Lastly,

the

Steel Group disputes the Agency’s reliance upon

 the policy

objective of Section l0l(a)(3)

 of the CWA as a basis

 for’

asserting

 that the instant regulations are federally required.

Consistent

with

 its position that the narrative standard

portion of the Agency’s proposal

 is not federally required,

the

Steel Group suggested that the Board split the docket

 in this

matter.

 The Steel Group proposed that

 the Board proceed only

with a~doptionof the specific numeric standards

 set forth

in

Section 302.208 and postpone action on

 the narrative

 standard.

The Board disagrees with

 the Steel Group’s contention

 that

the regulations proposed by the Agency are not federally

required.

 The Steel Group’s

 interpretation

 of the USEPA guidance

document

 is inconsistent with USEPA’s stated position on whether

it views

 the Agency’s proposed regulations as being required by

federal law.

Section 303(c)(2)(B)

 of the Water Quality Act

of

1987

requires that where numeric standards are not available,

 states

“shall adopt criteria based on biological monitoring

or

assessment methods consistent with information published pursuant

1 07—274

—9—

to Section 304(a)(8)”

 (33 U.S.C. §l3l3(c)(l)(B)).

 Only where a

state expects

 that a pollutant will not interfere with

the

designated use

 is the state excused from deriving

a

 numeric

standard for that pollutant

 (Exh.

 46 at

3).

 However,

 nothing

in

the Act restricts the right of

a

 state to adopt numeric criteria

for

 any pollutant

 not listed

 in Section 307(a)(1)

 (Exh.

 46 at

5).

The USEPA specifically opines that

 “an effective

 State water

quality standards program should

 include both the chemical

specific

...

 and narrative approaches”

 (Exh.

 46 at

2).

By

supplementing option

 two with option three,

 “a State would have

formally adopted numeric crite:ia for those

 toxic pollutants

of

frequent occurrence

...

 and would also have a sound and

predictable method

 to develop additional numeric criteria as

needed.

 This combination of options provides

 a complete

regulatory scheme”.

 (Exh.

 46 at

 10).

 Where option

2

is

supplemented with option

3,

 states must provide an opportunity

for public participation

 (Exh.

 46 at

 10).

 Additionally~ states

must adopt

 a “specific procedure

 to be applied

 to narrative water

quality criteria”

 (Id).

Furthermore, USEPA reiterated

 this position

in

a

correspondence dated July

3,

 1989 from Kenneth

A.

 Fenner,

 Chief

of the Water Quality Branch, USEPA Region V,

 to James

B.

 Park,

Manager

 of the Agency’s Division

 of Water Pollution Control

 (Exh.

75).

 This letter provides that “the statutory commitments for

toxic provisions

 in State

 rules go beyond

 simply adopting numeric

criteria”

 (Exh.

 75).

 Rather,

 a complete regulatory scheme

includes both formaly

 adopted numeric criteria

 for toxic

pollutants

 of frequent occurrence and sound and predictable

methods

 to develop additional criteria as needed

 (Exh.

 75).

Furthermore,

 the “adoption of numeric criteria does not subrogate

the necessity of

 a narrative policy:

 ~Such

 a policy

 is needed to

insure waters of

 the State are protected from toxicity when

numeric criteria may not

be

 sufficient

 to provide such

protection”

 (Exh.

 75).

Section 28.2(b)

of

 the Act provides that

 “wlhenever

a

required

 rule

 is needed,

 the Board shall adopt

a

 rule which fully

meets

 the applicable federal

 law.”

 The USEPA has made clear that

it

 interprets

 the CWA

 as mandating

 that Illinois adopt water

toxic regulations

 no later than February

4,

1990

 (Exn.

 75).

The

only regulations received by

 the Board propose both the adoption

of specific numeric standards

 for known toxic pollutants and a

narrative standard for newly discovered

 toxic substances.

The

Board finds general agreement with the analysis of the mandate of

the CWA as articulated

 by the Agency and the USEPA.

 Accordingly,

we conclude that

 the regulations

 as proposed

 by the Agency and

modified herein are federally required.

107—275

—10—

DISCUSSION OF ADOPTED RULES

The instant amendments both add

 to and amend the Board’s

existing water quality regulations found

at

35

 Ill. Adm.

 Code:

Subtitle C (35 Ill. Adm.

 Parts 301 through

 309).

 In this section

the Board will review the major components

of

 the amendments and

the rationale for them.

 This discussion

 is conveniently made

in

four parts:

 (1) essentially conforming amendments made

in

35

 Ill.

Adm. Code 301.106 through 302.101, 302.103,

 302.203,

and

 :305.102

through 309.103;

 (2) amendments

 to the allowed mixing concept

found at

35

 Ill. Adm.

 Code 302.102;

 (3) amendment:;

to

 the General

Use Water Quality Standards found at

35

 Ill. Adm.

 Code 302.208;

and

 (4) amendments

 to the narrative prohibition against

 toxicity

found at

35

 Ill. Adm. Code 303.210 and 302.Subpart

F.

The

following discussion will visit these

 four parts

 in turn.

Essen~ially Conforming Amendments

Various amendments have been necessary

 to bring collateral

portions of the Board water quality

 regulations into conformity

with the substantive amendments

 regarding toxic substances.

These are as follows:

Section

 301.106

 Incorporations by Reference

Section 301.106

is

 a new Section added

 to accommodate

incorporations by reference.

 The references

 in today’s

amendments pertain solely

 to the instant subject matter.

However,

 Section 301.106

 is designed such

 that

it

 can house

incorporations by reference made

 in association with any future

amendments within Subtitle C.

Section 301.107

 Severability

Perhaps due

 to oversight,

 Subtitle C has not previously

contained a severability clause.

 Such

 is added here

 in Section

301.107.

It

 is applicable

 to the whole of

 Subtitle C.

 This

addition

 is made

 to conform Subtitle

C

 to general

 regulatory

drafting practice.

The Steel Group has recommended

 that

 the severability clause

be stricken

 (PC #26 at

 14—15).

 The Steel Group contends that the

clause “does

 not appear to be mandated by any law or

 regulation”

from which the Steel Group concludes

 that

 the clause

is

“unnecessary” and “inappropriate”

 (Id.).

 The Board

 finds both

the contention and conclusion faulty.

The Board is mandated under Title VII

 of the Act

to

promulgate regulations necessary

 to meet

 the purposes of the

Act.

 The Board finds

 that the purposes

 of the Act would

be

thwarted

 if, through

 the Board’s failure

 to affirmatively assert

107—276

—11—

otherwise,

a

 judgment of invalidity

 of one part

 caused the

invalidity

 of additional parts or

of

 the whole of the Board’s

water regulations.

 The Board therefore believes that a general

severability clause

 is appropriate.

 Judgement as

 to whether

it

is also necessary cannot

 be made until

 its purpose

 is put

to

test, and

 it accomplishes

 its purpose within that test.

Section 301.108

 Adjusted Standards

Section 301.108

is

 a new Section which states

 the statutory

language at

 Section 28.1(a)

 of the Act regarding adjusted

standards.

It

 is arguable whether

it

 is necessary to repeat

statutory language within the body of

 the Board rules.

Nevertheless,

 the Board deems that

it

 is advisable to do

so

in

this instance.

 Substantial discussion has arisen

 in the context

of

 the instant proposal regarding how the adjusted standard

procedure interpiays with the amended

 rules.

 Since

 the adjusted

standard

is

 a new procedure before

 the Board,

it

 is likely that

similar questions will also arise

 in other, future proceedings

and perhaps during USEPA review.

 The Board believes that

inclusion within Subtitle C of

 the statutory description of

the

adjusted standards procedure offers

 a reasonable prospect

of

addressing some ci these current and future questions.

Section 302.100

 Definitions

Section 302.100

 is a new Section containing definitions used

in Part

 302.

 The definitions

 in today’s amendments pertain

solely

 to the instant subject matter.

 The definitions are for

“acute toxicity”,

 “adverse effect”,

 “chronic toxicity”,

“criterion”,

 “hardness”,

 “mixing zone”,

 “total residual chlorine

(TRC)”,

 “toxic substance”,

 and “zone of

 initial dilution

 (z:D)”.

Notable among these

 is the definition

 of “criterion”.

 This

term has

 a special sense

 as used within Part

 302, which

is

 “a

numerical concentration of one

 or more toxic substances derived

‘in accordance with the procedures

 in Subpart

F

of

 Part

3021

which,

 if not exceeded,

 would assure compliance with the

narrative toxicity standard of Section 301.210”.

 The definition

thus establishes that there

is

 a presumption that,

if

 a criterion

is met,

 there

 is no violation

 of the prohibition against

 toxicity

for that substance

 or combination of substances for which

the

criterion has been determined.

Several of

 these definitions have undergone evolution at

First and Second Notices.

 The interested person

 is directed to

the First and Second Notice Opinions,

at

 pages

 25—6 and 23—4,

respectively,

 for a discussion

of

 the nature and reason for the

changes.

107—277

—12—

Section 302.101

 Scope and Applicability

Various amendments have been made to the directory

 to Part

302 found at Section 302.101.

 All of the amendments are of

a

conforming

 nature.

 These include updating the format of

 internal

references

 to conform to current Code Division practice and the

addition of

 a citation

 to the new procedures of Subpart

F.

Section 302.103

 Stream Flows

This Section contains a

 conforming amendment which deletes

the specific citation to temperature

(PC

#8

at

 10).

Section 302.203

 Offensive Conditions

This Section contains amendments intending

 to both clarify

and conform the Section

 to the remaining amendments.

IERG has requested that the Board delete the last

 sentence

of Section 302.203, which disallows

 the use of mixing as a method

for compliance with the “Offensive Conditions” prohibition listed

in

 the preceding sentence

 (R2.

at

 1148—9)

.

 This the Board

declines to do.

 The Board believes that mixing

is

 a concept

not

applicable

 to some of the “Offensive Conditions”,

 such

 as sludge

or bottom deposits,

 floating debris,

 and plant

 or algal growth,

since these are not subject

 to mixing in the sense associated

with dissolved contaminants.

 For the other listed “Offensive

Conditions”

 the Board

 finds

 that the water quality standard of

302.203

 is no more

 restrictive than the effluent standard

 found

at

 35 Ill.

 Adm. Code 304.l06~.

 Since mixing has been allowable

pursuant

 to 302.102 only when

 “a water quality standard

 is more

restrictive than its corresponding effluent standard”,

 the Board

views mixing as never having been an acceptable method of

compliance with the “Offensive Conditions” prohibition.

The

Board does not see any persuasive argument

 why this policy should

now be generally reversed.

Section 305.102

 Reporting Reci~irements

This Section contains amendments which implement

the

Agency’s ability to acquire biological monitoring

 data

for

discharges where toxicity may

 be at

 issue.

Section 304.106 reads:

 In addition

 to the other

 requirements

of this Part,

 no effluent shall contain

 settleable

 solids,

floating debris,

 visible oil,

 grease,

 scum or

 sludge solids.

Color,

 odor and turbidity must

be

 reduced

 to below obvious

levels.

107—278

-13-

Section 309.103

 Application

 (NPDES)

—

 General

This Section contains amendments which implement the

Agency’s ability

 to require and acquire toxicity information as

part of an application for an NPDES permit.

 Certain additional

amendments are involved which conform the Section to current Code

Division standards

 for citation

 to regulations external

to

the

instant Section

 (see Second Notice Opinion at

 35).

Allowed Mixing, Mixing Zones and ZID5

—

 Section 302.102

Today’s

 rules affirm a long—standing tenet of

 Illinois

environmental

 law.

 That tenet

is

 that

 a discharger unable to

comply with the requirement

 of not causing

 or contribution

to

water

 quality violations found

at

35

 Ill. Adm.

 Code 304.105,

after making every effort

 to fulfill

 the obligations of the

discharger

 (see discussion below)

 and given the limits imposed by

the nature of the receiving water body and the character

 of the

outfall(s),

 is entitled to use a

 limited portion of the receiving

body of water

 to effect mixing of

 the effluent with the receiving

water.

 Within this limited portion of

 the receiving body

of

water,

 the discharger

 is excused from compliance with 304.105.

This

 is the “allowed mixing concept”, which

 is developed

principally

 in Section 302.102.

A significant portion

 of both testimony and public comment

has focused on Section 302.102.

 In part

 this interest reflects

inadequacies

 in the construction

 of prior Section 302.102.

:n

part,

 it also reflects the limited extent

 to which prior Section

302.102 has been applied, and hence given “body” through

interpretation and case law.

Accordingly,

 the Board at both First and Second Notice gave

substantial consideration

 to the concept

 of allowed mixing,

 both

in terms

 of exploring

 the principles underlying allow mixing and

in honing the language of Section 302.102

 in such manner as

 ‘to

have

 it fully reflect

 those principles

 (see First Notice Opinion

at

p.

 26—9;

 Second Notice Opinion at

p.

 5—12,

 24—6).

 In the

following sections,

 the Board expresses

 its final analysis

regarding these matters.

Obligations of the Discharger

 and Allowed Mixing

As

 a precondition

 of allowed mixing,

is

 to be recognized

that all dischargers must

 first comply with all effluent

standards specified

 in the Board’s effluent regulations,

35

 Ill.

Adm.

 Code Part

 304.

 Included in these effluent regulations are

not only

 a number of specific maximum concentration limits,

but

also

a

 requirement

 to do the best

 job of

 treating an effluent

before discharge.

 In particular,

it

 is specified at Section

304.102

 that:

107—279

—14—

,IJt

 shall be the obligation of any person discharging

contaminants

 of any kind

 to the waters of the state to

provide

 the best degree

 of treatment

 of wastewater

consistent with technological feasibility,

 economic

reasonableness and sound engineering

 judgement.

(emphasis added)

It

 is thereby only

 in the special circumstance where further

treatment

 is not technologically feasible,

 economically

reasonable and in accord with sound engineering

 judgement,

and

where

 the effluent standards are being met, and where

the

discharger would nevertheless

 still potentially cause or

contribute

 to the violation of

 a water quality

 standard,

 that the

issue of

 in—stream

(or

 lake)

 mixing should even arise.

If,

in

fact, our current effluent regulations are sound

-—

 and we see

no

reason

 to believe otherwise

——

and

 if our current effluent

regulations are being generally adhered to

——

 which likewise we

see no reason

 to doubt

——

 there should be

 no great demand on

 in—

stream mixing.

 We believe that this analysis

 is borne out by the

limited degree

 to which in—stream mixing

 is currently invoked.

Moreover,

 the obligations stated above constitute

 the status quo

circumstance, which we

do

 not see as being changed

 under

 today’s

rule.

 On this basis we view as misplaced the fear

 of those

persons who believe

 that today’s amendments will savage the

State’s waters by allowing massive new in—stream mixing.

Similarly,

 we view as misplaced the perception

 of others that

today’s amendments will cause mayhem on large numbers of

dischargers

 for whom in—stream mixing constitutes an avenue of

last

 resort.

Today’s allowed mixing rule accordingly makes explicit

statement within subsection

(a)

 of the obligation of

the

discharger.

Limitations

 on Waters

 rv.~ithim~

Which Mixing

 is Allowed

Subsection

 (b) contains various strictures on the nature of

allowed mixing.

 Some of

 the provisions

 of this subsection are

previously existing provisions which have been moved

 into this

subsection

for

 the purpose of organizational clarity;

 others are

new provisions designed

 to more filly define the conditions

 under

which mixing

 is allowed.

 The following table serves as

a

key

to

the origin

 of the essential elements of

 the various portions of

the subsection:

Section 302.l02(b)(l)

 Agency Proposal

(b)(2)

 Agency Proposal

(b)(3)

 Agency Proposal

(b)(4)

 Agency Proposal

(b)(5)

 Agency Proposal

(b)(6)

 Previous 302.102(c)

(b)(7)

 Previous 302.102(c)

107—280

—15—

(b)(8)

 Previous 302.102(c), ammended

(b)(9)

 Added by Board

(b)(lO)

 Previous 302.102(a)

(b)(ll)

 Previous 302.102(a)

“

 (b)(l2)

 Agency Proposal

A principal provision of

 subsection

 (b),

 taken as

 a whole,

is

 that the volume of waters used

 for allowed mixing must be as

small

as

 is practical,

 such as

 to limit impact on aquatic

 life,

human health,

 and recreation.

 Further,

it

 is incumbent upon any

discharger desirous of taking advantage of

 the allowed mixing

provision to assure that

 there

is

 in place

 all reasonable

engineering structures and treatment methods as are necessary

to

reduce the volume of waters needed

 for allowed mixing.

It

is

to

be

 further noted

 that the restrictions of subsection

 (b) could,

in special circumstances,

 limit allowed mixing

 to such

 a small

size that its existence becomes academic.

 An example would

be

where

 a discharge

is

to

 a public access area

or

 into

 a na~‘ural

feature

 vital

 to the well being

 of aquatic life.

Subsection

 (b)(l)

 is built

 on the premise advanced by the

Agency,

 with which the Board concurs,

 that the waters within

which mixing

 is allowed should be

 no greater than would be

required

 to accommodate an optimally-designed outfall

structure.

 The burden of providing the most efficient mixing

should be

 on the discharger.

 If the discharger chooses

to

provide

for

 less than the optimum mixing,

 the discharger should

not be able

 to claim a greater

 volume of waters

 for allowed

mixing

as

a

 result.

 Accordingly,

 subsection

 (b)(l)

 limits

allowed mixing

 to that portion of

 the receiving water which would

be needed to accommodate an optimally-designed discharge

configurat ion.

Subsections

 (b)(2)

 through

 (b)(5)

 set out various

prohibitions regarding

 the nature of allowed mixing with

 respect

to aquatic habitats and water

 use areas.

 Among these are

requirements

 that

 allowed mixing must

 not cause the occlusion of

tributary

 strea~’:~entrances

or

 restrict movement

 of aquatic life

into

 or out of the tributary;

 must

 not occur

 in waters adjacent

to bathing beaches,

 bank

 fishing areas, and boat

 ramps and other

types

 of public access areas;

 must

 not occur

 in waters which

contain

 important aquatic

 life habitat or

 natural

 features vital

to the well oeing of aquatic life;

 and must

 not occur

 in waters

containing points of water withdrawal

 for public and food

processing water

 or irrigation,

 or watering areas accessed

by

wild

 life or domestic animals.

 Each of these prohibitions

is

intended

 to assure

 that the environmental

 impact

 of allowed

mixing

 is minimized.

Subsections (b)(6),

 b(7),

 (b)(8),

 b(lO), and b(ll) are

essentially drawn

 from previous subsections

 (a) and

 (c).

 They

are collected and reorganized here

 for the purpose of bringing

107—281

—16—

all of the limitations on allowed mixing into the single new

subsection

 (b).

Subsection b(8) has also had the provision added

 that mixing

is not allowed

 in waters with a zero 7QlO

 (7—day low flow which

occurs one

 in ten years),

 and subsection

 b(9)

 has been added

stating tnat mixing

 is not allowed

 for any constituent for which

the water quality standard

 is already violated.

 In both cases

these are explicit statements

of

 rational interpretations

of

allowed mixing.

 The concept

 of allowed mixing presumes that

there

 is something

to

 “mix with”

 the effluent and something

to

“dilute” the effluent

to

 a safe level.

 These mixing and diluting

concepts will simply never

 come into play where

:

(1)

the

receiving stream has no

 flow,

or,

(2)

 the water quality standard

at

 issue

 is already violated

 in the receiving water.

Subsection

 (b)(l2)

 contains the provision that no water

within which mixing

 is allowed may encompass

 a surface area

greater

 than

 26 acres.

 Substantial controversy has surrounded

this issue, with the principal opposition view being

 that there

is no need

 to place an upper bound

 (26 acres or otherwise)

 on the

size of waters within which mixing

 is allowed.

 The Board

nevertheless believes that there must be some upper

 limit

 to the

size of mixing zones.

 A mixing zone

 is, after

 all,

 a portion of

a water body where

 less than optimum water quality

 is allowed

based upon the striking of

 a balance between

 the costs of

environmental Oontrol and the quality

 of the environment.

Accordingly,

 there must also be some upper

 limit

 to the waters

within which mixing

 is allowed where the balance runs

 so contrary

to the interests

 of the environment, and hence the very purpose

of the Environmental Protection Act,

 that

a

 line has

 to be

drawn.

 The Board believes th~t the 26—acre upper

 limit

 is an

appropriate place

 to maintain~ that line

in

a

 rule

 of general

applicability.

 The vast majority of discharges

 in Illinois

should be readily able

 to accommodate

 to this limit.

 The few who

may believe

 that

 a larger

 limit

 is necessary and justified

for

their particular circumstances are,

 as always,

 free

 to plead

their case before the Board

 in an adjusted standard

 or site—

specific proceeding.

The Board

 notes

 that there were

 three sentences

of

 a general

philosophical nature

 in previous subsection

 (a) which are today

deleted from that subsection.

 These are the sentences:

26 acres

 is equal

 to “the area of

 a circle with a radius of

183

m

 (600 feet)”, which

 is the size limitation

 imposed

 in prior

Section 301.102(a).

 Hence,

 today’s rule does not provide

 for an

area limitation different

 than that which already exists

 in Board

rules.

107—282

—17—

“The size of

 the mixing zone cannot be uniformily

prescribed.”

“The governing principle

 is that

 the proportion of

any body of water

 or segment thereof within mixing

zones must be quite small

 if the water quality

standards are

 to have any meaning.”

“This principle shall

 be applied on

 a case—by—case

basis to ensure that

 neither any individual source

nor the aggreyate of

 sources cause excessive zones

to

exceed the standards.”

In deleting these sentences the Board

is

 in no way intending

to imply repudiation of

 the ideas they express.

 To the contrary,

the Board believes that

 the ideas contained therein remain

fundamental underpinnings for applying and allowing mixing.

Nevertheless,

 the sentences are deleted because, although

acceptable under prior

 Illinois administrative

 law standards,

they are not likely acceptable

 today.

 Addition’ally,

 the Board

believes

 that the essence

of

 these sentences

 has been retained

within the general prescriptions

 of subsection

 (b).

Physical

 Mixing and Allowed Mixing

It

 is elemental that mixing occurs when effluents are

discharged

 into

 a receiving

 body.

 This

 is the physical

 reality

of mixing.

 To the extent that such mixing occurs over some

volume of the receiving water

 body,

 there

 is also an inherent,

physical

 “zone of mixing”

 wherein

 the two fluids experience

 commingling.

A

 “zone of mixing”

 is thus

 a physical reality

associated with all mixing effluents.

This

 “zone of mixing”,

 however,

 is not necessarily

equivalent

 to the volume of waters within which mixing

is

regulatorily allowed.

 As noted above, mixing

 is allowable only

when specific conditions

 of both the discharger and the water

body are met.

 Moreover,

 the portion

 of the water body within

which mixing

 is allowed

 is determined

 not solely by the bounds

of

the “zone of mixing”,

 but also by strictures associated with

the

nature of the receiving body of water,

 the nature

 of the

outfall(s),

 and the maximum size associated with mixing zones,

pursuant

 to subsection 302.102(b).

Mixing Zone as Regulatory Construct

Today’s

 rules better distinguish between waters within which

mixing

 is allowed on principle,

 and the formal regulatory

construct

of

 a “mixing

 zone”.

 As used

 in both the prior

and

current

 rule,

 the term “mixing

 zone”

 refers

to

 a formal

regulatory construct.

 In today’s

 rule,

 the mechanisms

 by which

mixing zones are established are fleshed out.

107—.283

—18—

The specification that

 a mixing

 zone

is

 a regulatory

construct

 is not a departure from the prior allowed mixing

policy.

 This

 is apparent from a plain reading of prior

302.102.

 Prior 302.102

 is replete with language specifying that

a mixing

 zone takes

 on form only after

 a variety

of

determinations have been made.

 Examples include

 (emphases

added)

The

 principle

 that

 the proportion

 of any body of

water

 or segment thereof within mixing zones must

be

quite small

 shall

 be applied on

 a case—by—case

basis...

Single sources of effluents which

 ha~.’e more than one

outfall shall

 be limited

 to a total mixing a~reanot

larger...

In determining the size of the mixing zone for any

discharge,

 the following must

 be considered:

.

the mixing zone shall

 be so designed as to assure

It

 is perhaps

 inartful construction

 that

 in all of these

instances

 the passive—voice verb forms are used.

 Nevertheless,

there

is

 a clearly implied

 set of actions which must be completed

to give effect

to

 a mixing

 zone.

It

 is the need for these

actions which distinguishes

 the physical “zone of mixing”

 from

the regulatory construct which

is

 a mixing

 zone.

Although the concept of the mixing zone as

 regulatory

construct

is

 therefore not new today,

 the manner

 in which the

Board makes

 that specification

 is provided

in

 a modified, and

hopefully clearer

 form.

 Among other matters,

 we intentionally

refrain from use

 of passive voice constructions.

 Additionally,

within subsections

 (d) and

 (f) we purposely specify

 the persons

responsible

 for making the various decisions which effectuate

a

mixing zone.

 One such person

is

 the NPDES permit applicant,

who

may ask for

 the recognition of

 a mixing

 zone; alternatively,

the

Agency may require

 a NPDES applicant

 to address mixing pursuant

to 35

 Ill.

 Adm.

 Code

 309.

 A second

is

 the Agency,

 which

is

charged with reviewing

 the application pursuant

to

its

responsibilities

 as permitter.

 The third

 is the Board, which

stands

 in an appellate posture pursuant

to

 its charges under

the

Act

 to resolve disputes between permit applicants and the

Agency.

 T’he Board views none of this role—designation as

 being

new,

but

 rather

 as explicit identification

 in the instant context

of the roles assigned under

 the Act

 in all similar

 circumstances.

107—284

—19—

Mixing Zones

 in NPDES Permits

An aspect

 of the instant amendments which

 is new under the

instant

 rule

 is the specification at subsection

(d)

 that an NPDES

permit may include

 a mixing zone as

 a permit condition.

The

Board’s purpose here

is,

 in part,

 to afford a mixing zone

determination the same panoply of procedures and safeguards

employed under

 the NPDES permitting system.

 Any effluent

discharger who may desire the establishment of

 a mixing zone

is,

in general, also required

 to hold an NPDES permit.

 Therefore,

the joining of

 the two procedures provides

for

 a single system

within which both the regulated and regulating persons

can

function.

 Moreover,

 there exists

 a well-developed and tested set

of procedures and practices

 for the application,

 granting,

and

review of NPDES permits.

 The Board therefore believes that

joining

 the mixing zone determination to the NPDES permitting

process offers

 a significant administrative economy

 for all.

A second reason

 fur linking mixing zones with NPDES permits

is that the most common reason why a discharger

is

 likely

 to want

a mixing zone

 is that the existence of

 a mixing zone affords the

discharger

 the prospect

 of lessened effluent

 limits

in

 its NPDES

permit.

 Mixing zones and NPDES permits therefore have an

inevitable natural linkage which entreats their administrative

association.

Aside from their natural association and aside from the

procedural advantages gained by linking

 the mixing zone

determination with the NPDES permitting process,

 the Board has

additional purposes

 for making this linkage.

 One such purpose

is

to provide

 a directive to the Agency specifying

 that mixing zones

are valid elements

 of NPDES permits.

 A second

is

 to require the

Agency’s consideration of mixing

 zones under

 their statutory

obligation as NPDES permit issuer pursuant

 to Section

 39(b)

of

the Act.

The Board

 is aware of concerns that occasions may arise

where,

 for one reason or another,

 a mixing

 zone determination

might

not

 be wanted within the context of an NPDES application

(e.g., R2.

 at 470-3).

 Although the Board believes

 that most

of

these concerns may

 be misplaced,

 the Board

 is not unmindful

 that

any process, particularly

 a new process such as the one before

us

now, may require later

 tuning

 if concrete examples

 of problems

arise.

 The Board will stand

 ready,

 as always,

 to entertain

modifications of

 the instant

 rules

if

 and when such problems are

brought

 to us.

 Moreover, although the Board does not

 speak

for

the Agency

 in such matters,

 the Board can at least

 note that the

Agency has attested

to

 its desire to assist applicants during the

formative phases

 of making mixing

 zone determinations

 (R2.

at

452).

107—285

—20—

Given this intimate association of mixing

 zones with NPDES

permits,

 the Board speculates

as

 to whether

 it might

 not have

been advisable to present the whole mixing zone concept within

Part 309

 (NPDES Permits)

 rather

 than Part 302

 (Water Quality

Standards).

 However, as noted at Second Notice

 (Second Notice

Opinion at

9),

 the Board sees

 no functional impairment occasioned

by the instant placement,

 but rather only an arguable

organizational awkwardness.

Allowed Mixing Outside of the Context

 of an NPDES Permit

The association of mixing zones with NPDES permits raises

the question regarding whether any allowances may ever be made

for mixing of effluents which either are not NPDES—permitted

or

do not contain

 a mixing zone as

 a condition within an NPDES

permit

 (e.g.,

 Exh.

 109 at

5).

 The Board intends

 that the answer

be yes.

 The Board believes that allowed mixing outside of

the

context

 of NPDES permits

is

 a basic ~tenet of

 the Board’s existing

rules, and sees nothing in the instant

 record which warrants

departure from this tenet at this time.

The Board also believes,

 that as a practical matter,

the

mixing zone issue should not need

 to be visited in every NPDES

permit.

 Mixing zone demonstrations can be expensive

 (PC #31 at

1)

 and time—consuming, both for the applicant and the Agency.

As

well,

 many dischargers will not require mixing

 to comply with

water quality standards.

 Thus,

 the whole process

 of establishing

a mixing zone should be undertaken only where there

 is reasonable

grounds

 to believe

 that the effort will lead

 to better protection

for the environment,

 the discharger,

or

 both.

 The Board believes

that this can only happen where discretion

 is available

 to both

the Agency and the discharger

 to pursue mixing

 zones

demonstrations

 as either of

 these persons sees

 fit.

 The Board

believes

 that

 this discretion would

 be compromised

 or even lost

if the only prospect for allowed mixing occurred

 in the context

of an NPDES permit.

Several

of

 today’s amendments are intended

 to give

expression

 to our intent

 that affirmation within an NPDES permit

is not a necessary condition

 to allowed mixing.

 These

 include

the addition of

 “Allowed Mixing”

 to the title of

 Section 302.102

and the absence of any reference

 to mixing

 zones or NPDES permits

within the general applicability statement

 of subsection

(a)

or

the limiting conditions specified

 in subsection

 (b).

We nevertheless again emphasize

 that allowed mixing must

always occur only

as

 a last

 resort when there

 is not otherwise

a

tenable alternative for

 the discharger.

 Moreover, whenever

anyone

 invokes allowed mixing as

 a method of compliance

 with

water quality standards absent an NPDES—recognized mixing

 zone,

the Board intends that there be

 a heavy burden of proof on that

person to show that

 the portion,

 area,

 and volume of the

107—286

—21—

receiving water used for mixing

 is no less restrictive than would

have occurred with an NPDES mixing

 zone.

 For this reason we

today explicitly state this burden of proof

 in Section

302.102(j)

We further believe

 that

 a decision regarding a mixing zone

made

 in the NPDES context must

 be given controlling status.

A

discharger must abide by an NPDES dccision

 (with the protections

afforded by

 its due—process provisions),

 and should not

be

allowed multiple “bites

 at the apple” by later invoking some

other interpretation

 of allowed mixing.

 Similarly,

an

action

should not

 be brought alleging violation of allowed mixing. for

waters

 in which mixing

 is expressly allowed in an NPDES permit.

Therefore,

 we explicitly state

 at Section

 302.102(h) and

(i)

 that

a decision made

 regarding allowed mixing

in

 a NPDES permit shall

control

for

 the duration of

 that permit.

Allowed Mixing’s Applicability to Effluents

Under previous Section 302.102 allowed mixing applied only

to the mixing of effluents,

as

 is apparent

in

 the plain reading

of

 the first sentence of prior

 Section 302.102(a)

 (i.e.,

opportunity shall

 be allowed

 for the mixture of

 an effluent with

its receiving water...”).

 “Effluent”,

in

 turn,

 is defined at

Section 301.275

as:

Any wastewater discharge,

 directly or

 indirectly,

to

the waters of

 the state or

 to any storm sewer,

and

the runoff from land used

for

 the disposition of

wastewater or

 sludges,

 but does not otherwise include

nonpoint source discharges

 such as runoff from land

or any livestock management facility

 or livestock

wastehandling facility subject

 to regulation under

Subtitle

E.

Under previous

 regulations,

 therefore, allowed mixing was

available only

 to dischargers

 of effluent

 as defined

in

301.275.

 Today’s rule does

 not alter

 this concept.

The ZID

Today’s amendments add a

 new concept

 to allowed mixing,

the

concept

 of the Zone of

 Initial Dilution

 or ZD.

 The purpose

of

a

ZID is

 to make allowance

 for the special circumstance where

it

is

not possible or reasonable

 to achieve acute toxicity standards at

“end of pipe”,

 but where

 these standards can he achieved after

immediate and rapid dispersion

 of the effluent.

 Accordingly,

a

ZID is

 by definition at Section 301.101

 “a portion

 a mixing zone

within which acute toxicity standards need not

 be met”.

 Further,

pursuant

 to Section 302.102(e),

 a ZID

 is limited

 to waters within

which effluent dispersion

 is immediate and rapid.

107—287

—22—

Because

 a ZID is

 a component of a mixing zone,

it,

 like

a

mixing

 zone,

 does not exist

 until

it

 has been formally recognized

by

 the Agency as an NPDES permit condition pursuant

 to subsection

(e).

 Moreover,

 such rights

 as may flow from the existence of a

ZID do not exist until

 the ZID itself has been established as an

 NPDES permit condition.

 This circumstance

 is effectuated by the

provision at Section

 302.102(c)

 that acute water quality

standards must be met within all waters of

 the state unless the

Agency has recognized

 a ZID pursuant

to

 302.102(e).

In determining

 that

 a ZID is available only when

specifically identified

 in an NPDES permit,

 the Board

 takes

recognition

 that

a

 ZID is

 a volume of

 the waters of the state

within which acute toxicity

 is allowed.

 The Board views the

existence of acute

 toxicity as

 a drastic circumstance which

cannot be allowed without careful and considerate review

 of the

special and individual circumstances which might warrant

its

allowance.

 The Board believes

 that anything less would

be

contrary to the elemental principles enunciated

 in Section

 2 and

11 of

 the Act.

In various early drafts

 of the ZID provision of Section

302.102

 there were present several limitations which the Board

does not today adopt.

As

 regards these,

 the Board

 notes:

1)

 The condition

 that

 a ZID be “proportional

 to the width

of the receiving body of water”

 is not included.

 This

condition is vague

 to the point of fault

 (R2.

 at 160—2,

1514—5).

 Moreover,

 the Board believes ‘that

it

is

redundant of several

 of the conditions

 in subsection

(b), which apply

 to ZID5 by virtue of ZID5 being

components of mixing zones.

2)

 The 1,000 square—foot limitation on ZID size

 is not

included.

 Such limitation has been reasonably

 shown

to

be arbitrary

 (R2.

at

 173,

 268,

 302—305,

 329—47,

 353,

1155—6,

 1275,

 1493,

 1512—3), and hence

not

justifiable.

 While

 the Board does not intend that ZIDs

be unlimited

in

 size,

 it does believe that the

proscriptions of subsection

 (b),

 combined with

the

definitional provisions of

a

 ZID,

 are sufficient

to

provide practical size limits.

3)

 The condition

 that

 a ZID “shall not cause actual

impairment

of

 the aquatic environment” has been deleted

as redundant

 of subsection

 (b).

Allowed Mixing for Other Than Toxic Constituents

‘This record has focused largely on toxic constituents.

Nevertheless,

 the issue

 has been raised

 (e.g., R2.

 at 741—3)

as

to whether

 the allowed mixing provisions

 of Section 302.102 apply

107—288

—23—

to other

 than the toxic constituents identified in Sections

302.208 and 302.210.

 The Board intends that

 the allowed mixing

provisions do generally apply

 to all the water quality standards

within Part

 302.

 The notable exception

 is that

 the concept of

a

ZID does apply only

 to toxic constituents, as

 is explicit

 in the

definition

 of a ZID (i.e.,

it

 is a portion of waters within which

water quality standards

 for acute toxicity do not apply).

Dimensions of Allowed Mixing

A final question has been whether

 the w~terswithin mixing

is allowed have the dimensions

of

 an area

 (Lz)

or

of

 a volume

(L3).

 The dimensions’ are those

of

 a volume.

 This

 is implicit

pursuant

 to subsections

 (b)(8)

 and (b)(ll)

 of Section 302.102.

Subsection

 (b)(8)

 specifies

 that allowed mixing may not contain

more

 than

25

 of the cross—sectional area of

 a stream.

 This

subsection thus set limits

 on size

 (breadth and depth)

 in the

plane perpendicular

 to stream flow.

 Subsection

 (b)(ll),

 in turn,

specifies that the total surface area involved

 in allowed mixing

may not exceed

 26 acres.

 This subsection

 thus sets limits on

size

 (breadth and length)

 in the horizontal plane.

 Read

together,

 the two subsections specify a three-dimensional volume

within which mixing

 is allowed.

Numeric General Use Water Quality Standards

-

 Section 302.208

Section 302.208,

 along with

 Section 302.210, contains the

heart

 of today’s adopted

 rules.

 Section 302.208 contains

parameters for which numeric water quality standards are

adopted.

 Section 302.210 extends the prohibition against

toxicity to the larger universe of

 toxic substances.

Acute versus Chronic Standards

A principal

 feature of

 the instant amendments

is

 a “two—

number standard system”

 to replace

 the existing “single—number

approach”

 for certain chemical constituents.

 This “two—number

standard system”

 utilizes an acute standard

 (“AS”) and a chronic

standard (“CS”).

 This approach

 is meritorious because

it

addresses both acute effects caused

 by high—dose,

 short—term

exposure to

 a pollutant,

 and chronic effects produced

 by low—

dose,

 long—term constant exposure.

As applied

 in the Section

 302.208 amendments,

 the AS may not

be exceeded

 in any sample,

 and the CS may not

 be exceeded by

the

average of no fewer

 than

 four

 samples collected over

 a period of

at least

 four days.

 In the special case where mixing

 is allowed,

the AS may not

 be exceeded except within

 a ZID, and the CS may

not

 be exceeded outside

 of the waters within which mixing

is

allowed.

107—289

—24—

Comparison of New versus Previous Standards

The General Use Water Quality Standards adopted today

 fall

into one of five

 categories.

 The first

 category consists of

chemical constituents

 for which the previous standard

 is replaced

by standards for both acute and chronic toxicity,

 and which are

based on the ambient hardness of the water.

 ‘The chemical

constituents are cadmium, trivalent chromium,

 copper, and lead.

For each of these chemical constituents toxicity has been

demonstrated

 to be dependent on hardness

 (Exh.

5,

7,

 9 and

11

),

and accordingly

 the standard

 is defined as

 a function of the

ambient hardness.

In order

 to compare the previous versus adopted standards

for chemical constituents

 in this first

 category,

it

is

 necessary

to specify ranges

 of hardness.

 In the following table

 the range

of hardnesses used to show the possible range of values assumed

by the standards

is

 27 mg/l

 to 2500 mg/l.

 This apparently

represents

 the extremes of hardnesses ever

 recorded

 in Illinois

streams

 (Exh.

82

 at 2—11).

In

 the following comparison,

all

standards are expressed

 in micrograms per liter

 (ug/l) and the

range of

 the AS and CS adopted

 standards are shown

 for the

extremes of

 recorded hardness

 (Id.

 at 2—11

 to 2—13):

Cd

 Cr(+3)

Cu

Pb

Previous Standard

50

1000

20

100

Adopted Standard:

AS

 (range)

 2.2—50

 594—24,640

 5.2—375

 15—100

CS

 (range)

 0.4—14

 71—2937

 3.9—188

 n.a.

The equations adopted for the trivalent chromium,

 copper,

and lead acute and chronic standards and for the cadmium chronic

standard are the equations recommended

 by the USEPA in the

 corresponding Ambient Water Quality Criteria documents

 (Exh.

5,

7,

9,

and

 11).

 The equation adopted

for

 the cadmium acute

standard

 is identical

 to the equation

 recommended by the USEPA in

the cadmium criteria document

 (Exh.

 5), except for the

 “A”

term.

 As the Agency notes, the cadmium criterion

 in that

document

 is intended

 to protect rainbow trout.

 The Agency does

not believe that

it

is

 necessary

 to apply

 this standard

in

Illinois General Use Waters

 (R2.

at

 529).

 Accordingly,

the

Agency has determined an equation

 for calculating

 a cadmium AS

which is appropriate

 for Illinios

 (Id.).

It

 is this modified

equation, with the “A” term differing

 from that

 in the criterion

document, which

 is today adopted.

The second category consists

of

chemical constituents

for

which

 the previous single—valued standard

is

 replaced by

standards

 for acute and/or chronic toxicity.

 These consist

of

arsenic, hexavalent chromium, cyanide, and mercury.

The

comparative standards, expressed

 in micrograms per liter

 (ug/1),

 are as follows:

107—290

—25—

As

 Cr(+6)

CN

Hg

Previous Standard

1000

50

25

0.5

Adopted Standard:

AS

360

16

2

0.5

CS

190

11

5.2

 n.a.

It

is

 to be noted that

 the cyanide standard as adopted

is

also changed with respect

 to analytical

 method,

 as reflected

in

a

change

 in STORET number.

 ‘The previous cyanide standard was for

total cyanide

 (STORET 00720), whereas

 the cyanide standards

adopted

 today are for weak acid dissociable cyanide

 (STORET

number 00718).

 The acceptance

 of this change

 is based upon

recommendations from both the Agency

(PC

 #8 at pars.

 27-25) and

Sauget

 (R2.

at

 309—11).

The third category consists of

 a single chemical

constituent,

 total residual chlorine (“TRC’),

 for which

a

toxicity standard

is

 today specified for

 the first

 time.

The

adopted limits are

19

 ug,/1 as an AS and 11 ug/l as

 a CS.

 These

limits are

 in accord with USEPA recommendations

 for TRC

 (Exh.

6).

The fourth category consists of those chemical constituents

for which no chan~e in the existing standard

 is adopted,

 as found

in subsection

(e)

.

 These chemical constituents are:

Barium

 Phenols

Boron

 Selenium

Chloride

 Silver

Fluoride

 Sulfate

Manganese

 Total Dissolved Solids

Nickel

 Zinc

The final category contains only the parameter total

 iron,

which

 is today deleted.

 This deletion

 is based upon a record

which demonstrates

 that

 total

 iron

 is an inappropriate parameter

6 The Board

 notes

 that

 as an administrative device the actual

procedure followed

for

 these constituents has been

to

 repeal them

and then

 to immediately readopt them

 in their previous form.

This procedure has been required by the reformatting necessary

to

accommodate

 other portions of Section 302.208.

It

is

to

be

emphasized

 that

 no substantive changes are intended to flow from

this device.

 In particular,

 the Board intends no change,

nor

does

 the record justify any change,

 in the standards

 for those

constituents

 found in new subsection

 (e).

107—29 1

—26—

for establishing water quality

 (R2.

 at 196—201, 696—7, 740)~.

Narrative Standard for Other Toxic Substances

—

Section

 302.210 and 302.Subpart F

Organization of Section

 302.210 and Subpart F

Section 302.210

 sets out the basic narrative prohibition

against

 toxic substances in toxic amounts and establishes

 rules

for implementing this prohibition.

 Subpart

F

 (Sections 302.601

through 302.669),

 in turn,

 sets

 out the procedures by which

quantitative evaluations

 of what

 constitutes

 a toxic amount must

be made.

The basic prohibition

 is stated

 in the introductory portion

of

 Section 302.210.

 The introductory portion also explicitly

states that the toxicity referenced includes toxicity to humans,

animals, plants,

 and aquatic life generally.

 It further

specifies

 that numeric standards already adopted by the Board

have precedent over any criteria numbers which might otherwise

be

calculated pursuant

 to Section

 302.210.

Sections 302.210(a)

 through

 (e) specify how toxicity

criteria are to be determined.

 Specifically, toxicity criteria

are to determined pursuant

 to the procedures of Subpart

F.

It

is

further

 specified that when

 this

 is validly and correctly done,

the concentration so determined

 shall

 be deemed

to

 be constitute

the toxic amount.

 Subsection

(f)

 lays out the scope of

application

 of criteria, and the framework within which their use

may be challenged.

Subpart F sets out the procedures

 to be applied in

determining

 toxicity criteria under

 the various possible

scenarios of interest.

 For example, Sections 302.612

 through

302.621 set out procedures

 to be used when acute aquatic toxicity

is of interest,

 Section 302.633 sets out procedures

 to be used

when toxicity

 to wild and domestic animals

is

 of interest,

and

Sections 302.648

 through 302.657

set

 out procedures

 to be used

when interest

is

in

 a substance which

is

 a human nonthresh’old

toxicant,

 etc.

 Given

 the large number of possible scenarios of

interest,

 Subpart F is accordingly lengthy.

in the collateral proceeding, R88—2l(B),

 a proposal to add

a

dissolved

 iron standard

 to both the General Use and Public and

Food Processing Water Supply Standards

 is being entertained.

107—292

—27—

The Place and Purpose

 of a Narrative Toxicity Prohibition

The Board’s General Use Water Quality Standards have always

contained a general prohibition against

 the occurrence of toxic

substances

 in water

 of the State, with such prohibition expressed

as

 a narrative standard.

 The purpose of the narrative standard

is

 to assure that toxic contaminants are not present, even

 if no

specific numeric standard for the contaminant

 in question has

been adopted by

 the Board.

 Specifically,

 it had been stated at

35 Ill.

 Adm. Code 302.203

 that:

Waters

 of the State shall

 he free from

..

.

 matter

of

other

 than natural origin

 in concentrations

or

combinations toxic or harmful

 to human,

 animal, plant

or aquatic

 life.

Additionally,

at

35

 Ill. Adm.

 Code 302.210

 it was stated:

Any substance

 toxic

 to aquatic

 life shall

 not exceed

one—tenth of the 96—hour median tolerance limit

(96

hr.

 TLm)

 for native fish or essential

 fish food

organisms.

Today’s adopted

 rules retain this

 fundamental prohibition

against

 toxicity,

 but substantially develop

it

 in a manner

consistent with the CWA requirements.

 Simply put,

 the purpose of

today’s action

is

 to more firmly assure that there

 shall

 be no

toxic substances

 present

 in toxic amounts with the waters

 of the

State.

Defining the “Toxic Amount”

There

 is no apparent disagreement over the fundamental

probibition against

 toxic

 substances

 in toxic amounts.

 Rather,

the dispute

 that exists

 is over the definition of what

constitutes a “toxic amount”.

 For many substances, particularly

the common toxic substances,

it

 is known

 to very good levels of

approximation what constitutes

 a toxic amount.

 This level

of

certainty

 is exemplified by the substances

 for which today

we

adopt,

 or have previously adopted,

 specific numeric standards

in

Section 302.208.

If all contaminants could be treated as are those

 in Section

302.208,

 the instant amendments would constitute

 a straight-

forward exercise.

 However,

 this

 is not

 the case.

 ‘The problem

is

that there are many substances for which

 we cannot identify with

much precision what constitutes

a

 ‘toxic amount”.

In

 fact,

the

down—side

 is that we cannot do this

for

 the great majority of

toxic substances;

 the many necessary studies simply have not yet

been done,

and

 in many cases the toxic nature

 of substances

themselves may not have been

 identified

 or the toxic substance

may not even have been yet manufactured.

 The up—side

 is that

107—293

—28—

these substances tend to be rare and hence

 the chance of

encountering them

 in the environment

 is small.

The Agency has proposed, and we accept,

 what we believe

to

be an innovative and constructive approach to defining what

constitutes

a

 “toxic amount”

 for those substances

 for which we

cannot

yet realistically specify

 a numeric standard.

The

approach consists of’setting up

 a tight series of procedures and

directives

 by which the best currently—available

 toxicity

information

 is used

 to approximate

 that numeric criterion which

might eventually evolve into a standard as more and better data

accumulate.

This approach has several advantages.

 Among these are that

it

 is not necessary to propose numbers

 for substances which may

not be encountered

 in Illinois waters,

 thus warding off

a

substantial, unproductive effort.

Additionally,

 the narrative standard approach allows for

rapid reaction against a substance

 not previously present,

existent

 or recognized as being toxic.

 Environmental control

history

 is replete with examples

 of new needs and new

technologies causing

 the development, and entry

 into the

environment,

 of new substances.

 Moreover,

 the toxicity of some

of these substances has not been recognized until

 long after

their appearance

 in the environment.

 It is perhaps one of

the

major shortcomings of environmental control

 that

 it has,

not

uncommonly,

 been sluggish

 in responding

 to the appearance

 of new

toxic substances.

 Today’s amendments will not do away with the

time necessary to respond

 to new pollutants,

but

 it can

substantially shorten

 that time.

 Under

 the instant amendments,

whenever

it

 is recognized

 that

 a new substance offers

a

 threat,

the Agency would have the ability

 to immediately

 react

to

whatever sources may be responsible and

 to work with that source

 in eliminating

 the threat.

Another principal advantage of

 the instant amendments

is

that

 they greatly reduce the potential

 for lending unwarranted

credence

 to unreasonable numeric standards.

 The history of

environmental control clearly tells

 us that determination

 of the

appropriate standard for most

 substances does not come easily.

Rather,

 large amounts of data must

 be accumulated and extensive

study must

 be undertaken before the obvious numeric standard,

if

ever,

is

 revealed.

 This condition,

 however, cannot be an excuse

for

 the environmental decisionmaker

 to defer action until

certainty

 is achieved.

 The art

 of the environmental decision—

maker

is,

 in fact and

 in no small measure,

 knowing when and how

to act

 in the face of less

 than complete certainty.

 This

 is not

to say that

 even the most artful

of

 the environmental

decisionmakers

 is always correct.

 To the contrary,

it

 is quite

common that later

 research shows

 that numeric standards have been

incorrectly set,

 thus requiring that standards be continuously

107—294

—29—

reassessed in light

 of the most recent scientific

 information.

But the reassessment process

 is also slow;

 work loads are heavy

and crises cause the diversion of attention.

 Moreover, once

graced with

 a numeric

 limit,

 a standard takes on a distinct

 life

of its own,

 and the most difficult stumbling block to honing an

existing numeric standard tends

 to be

 the very prior existence

of

the standard.

It

 is certain

 that there are standards on today’s

books which are outmoded,

 outdated,

 and not justifiable under

knowledge presently

 in existence.

 The General Use Water Quality

Standard

 for Lotal

 iron,

 today deleted from Section 302.208

 (see

above), constitutes

 an excellent example.

The approach adopted here reduces

 the likelihood of outdated

and outmoded standards 0y deferring formulation of

 the numeric

standard until more of the pertinent

 information

 is available.

At the same time,

 today’s amendments allow the Agency

 to utilize

the best currently-available

 information

to

 interpret the

fundamental policy of

 “no toxic substance

 in toxic amounts”.

This policy,

 to be sure,

 is not without

 its disadvantages,

 and these must

 be understood.

 Among them

 is that the regulated

community may find some discomfort with not being able

to

immediately access

 a complete

 list

 identifying what specific

numeric

 level

of

 a toxic substance is likely

 to constitute a

violation of the prohibition against

 toxicity.

 We note, however,

that this

 is also true for most toxic substances under

 current

prohibitions against toxicity.

 We do believe that today’s

approach can go a long way toward easing any discomfort by

spelling out

 in great detail

 the procedures by which criteria

which define

 a “toxic amount” can be determined by anyone.

 Thus,

any person may determine what constitutes

 a “toxic amount”,

 even

for substances

 not yet considered by the Agency as regulator.

Moreover,

 the regulated community need not

 be reminded that

it

has due process

 rights, plus several routes of appeal

 to the

Board,

 should

it

 find disagreement with the manner

 in which

the

procedures herein are interpreted or

 applied.

A second disadvantage

is

 that which accompanies any

pioneering effort.

 There are

 no extensive

 track records

developed by other

 regulatory agencies upon which we might

 look

for guidance

 in ironing out those glitches,

 small

 or otherwise,

which innovation inevitably carries.

 This disadvantage, however,

certainly must

 not be viewed as fatal,

 less

 we make

 no progress.

“Criterion” Versus “Standard”

‘There

 is a distinction

 to be noted between

 a water quality

standard,

 as exemplified by the numeric limitations stated at

Section

 302.208, and a criterion,

as

 referenced

 in Section

302.210 and calculated pursuant

 to 302.Subpart

F.

 A standard

is

a rule ad’opted by the Board,

 after notice

 is given and written

and oral comments and testimony are received, pursuant

 to Title

107—295

—30—

VII

 of the Act and Sections

5,

 5.01,

 5.02 or

 5.03 of the APA.

As

defined

 in Section

 3.09 of the APA, a rule means “each agency

statement of general applicability that implements, applies,

interprets

 or prescribes

 law or policy”.

In contrast,

 a criterion,

 as that word

 is used herein and

even though

it

 is a number derived

 by the Agency pursuant to the

rules adopted by the Board

 in 302.Subpart

F,

 cannot be considered

to be

 a statement

 of general applicability.

 Criteria will

be

derived by the Agency

 in the course of the NPDES permitting and

other site—specific situations,

 and applied

on

 a case—by—case

basis,

 taking into account

 the nature of the waterbody of

interest.

 USEPA has recently stated:

Water quality criteria express water quality

objectives for protecting aquatic

 life and human

health and for meeting

 a defined

 level of water

cuality protection.

 Where

 a discharge

 has a

reasonable potential

 to cause or

 contribute to an

excursion above

 a water quality criterion,

 NPDES

permit

 effluent limitations are necessary to ensure

that water quality standards will always

 be met.

(Exh.

61

at

 54 Fed. Reg.

 23872).

Once

 a standard has been established by Board regulations,

and

 it has withstood any appeals, the validity

of

 that number

itself cannot

 be subsequently challenged

 in a contested case

setting.

 However,

 an Agency calculated criterion can.

 Because

criteria numbers will

 be generated without the benefit

of

statewide public participation, and because application of the

Subpart F procedures necessarily require the use of

 assumptions

and professional

 judgment about which reasonable experts may

disagree,

 the validity and correctness

 of application of

a

criterion must

 be reviewable

 by the Board on

 a case—by—case basis

when the criterion

 is applied

 to a particular situation.

 Where

the Agency believes

 that any criterion which

 it may derive

in

a

particular

 case should appropriately be given statewide

applicability,

 the Agency can and should propose pursuant

to

Title VII of the Act addition of

 that criterion

 to the list

of

numeric water quality standards contained

 in Section 302.208.

Criteria and Agency APA Rulemaking

At various stages

 in this proceeding

 the question has been

asked as

 to whether individual toxicity criterion determinations

might

 or should be made by

 the Agency

 in an APA rulemaking

 (e.g.,

PC

#20

at

 11—13).

 This

 is not

 the Board’s

 intent.

 In addition

to the observations

 above,

 the Board notes

 that

 if criteria were

to

 he adopted

 by the Agency

 as APA rules,

 such criteria would not

be reviewabie

 by the Board.

 The Act does not provide

 for appeal

 of Agency

 rules to the Board;

 Lhe Administrative Review Act

dictates that

 such appeals would be heard in the circuit court.

107—296

—31—

Additionally,

 the Board doubts its ability to grant variances

or

adjusted standards

 from Agency rules.

 In short,

 use of the APA

process would result

 in Agency action which would escape any

review or alteration by the Board,

 a situation which the Board

cannot allow to occur.

 This would amount

to

 a gross abdication

and unlawful subdelegation of the Board’s duties

 to “determine,

define and implement environmental control standards”

 (Act

at

Section

5).

Sequential Challenge Opportunities

The USEPA has expressed concern

 that

the

 instant

 rules at

Section

 302.210(f)

 not provide sequential opportunities for any

given person

 to challenge any single criterion

 (PC #23).

The

Board shares this concern.

 We do not intend today

 to create an

opportunity

 for new sequential challenges within a

 single

action.

 Moreover,

we

 do not intend

 to provide

 for any challenge

rights which are not already expressly provided for under

Illinois

 law.

 The Agency correctly observes

 that the challenge

rights enunciated within subsection

 (f) are the standard~

challenge rights under

 Illinois law:

The criteria will serve as the basis

 for the water

quality protection program which includes NPDES

permit,

 non—point source management programs and

pollution remediation programs.

 In any of these

forums,

 provision

.

..

 exists

for

 a party to challenge

the accuracy with which

 the Agency adheres

 to the

Board’s established procedures

 (Subpart

F)

in

criteria derivation.

 During the NPDES permit

issuance process, public notice and appeal provisions

protect

 the interests

 of the permittee.

 In an Agency

enforcement proceeding for violation

 of the narrative

standard,

 the Agency must support the allegations

with proof

 that the narrative standard was exceeded

and that any criteria utilized

 in this context were

properly derived consistent with

 the Board’s Subpart

F procedures.

 Thus,

 this program relies on the same

legal framework and functional elements

 of existing

(water quality protection programs.

 (PC #20

 at 3—4).

Nevertheless,

 the Board believes that the

 issue of

sequential challenges

is

 best explicitly addressed

 in subsection

(f).

 Accordingly,

 the subsection explicitly states that only one

opportunity to contest

 a given criterion

 is given

 to any one

person.

 That criterion may be challenged only at the time

it

is

first applied to

 a person, whether

 that be

 in an NPDES permit

appeal or enforcement action;

 failure

 to make such challenge at

the first opportunity constitutes

 a waiver

 of any challenge.

107—297

—32—

Burden of Proof

USEPA has been critical of

 its perception of the burden

of

proof imposed on the Agency

 (PC #23).

 Were criteria designed

to

be promulgated by the Agency as APA rules

 (see above),

 the Board

would agree that any question of burden of proof would be

inappropriate,

 since the Agency would have been required

to

justify criteria and accept public comment during the rulemaking

process,

and

 a 35—day appeal period would be provided by the

law

during which persons could challenge

 the criteria.

 Given

 that

the Agency will not be promulgating criteria

 as APA rules,

the

only mechanism available

 to the Board

 to guarantee due process

is

to allow challenge to be made to criteria at

 the time they are

applied.

 The Board agrees that

 this will place some

administrative burden on the Agency,

in

 that the Agency may need

to persuade the Board of the validity of any one criterion

in

several permit appeals and enforcement actions

 in which

 it may be

applied.

 However,

 the Board notes,

 as also does the Agency

(PC

#20 at

 3—4),

 that this administrative burden

 is explicit under

Illinois

 law.

 Moreover,

 the Board notes

 that the Agency can

minimize such burden by proposing

 to the Board that any given

criterion be adopted as

 a Section

 302.208 numeric water quality

standard.

 Upon adoption by the Board,

 the Agency would be freed

from any additional burden of proof regarding the standard.

Since there are special nuances associated with the burden

of proof

 in permit appeals,

 this matter

 is expressly addressed

in

subsection

 (f)(2).

 Among the provisions

 of subsection

 (f)(2)

is

the requirement

 that

 the Agency

 include

in

 its permit appeal

record all information on which

 it has relied in developing and

applying criteria

in

 a permit.

 Also included is the burden of

 proof language Section

 40 of the Act,

 and the note that there

is

no presumption

 in favor

 of the general correctness and validity

of the application of criteria.

 This

 is consistent with the

general case law which has developed in

 the permit appeal area,

in which no presumption of validity attaches

 to Agency permitting

decisions.

 While

 the burden remains on the permittee

to

demonstrate that

 a criterion—based

 condition

 is not necessary

to

accomplish

 the “no toxic substances

 in toxic amounts”

 requirement

of

 Section 302.210(a),

 the Agency must

 “go forward” with

information supporting

 its inclusion oi

 a permit condition based

on

a

 criterion.

 ‘This

is

 no departure from existing practice,

wherein challenged permit conditions are stricken

 if the record

contains

 no or insufficient

 information supporting

 their

inclusion.

Purpose and Utility of Subpart

F

Subpart

F

 lays out procedures

 to be used

 to calculate

criteria for

 those chemical substances

 for which numeric

standards do not exist.

 It cannot

 be disputed that

 there are

instances where

it

 is necessary

 to be able to determine

the

107—298

—33—

concentration at which toxic substances not otherwise supplied

with numeric standards are toxic.

 Such instances arise at any

time

 it becomes necessary

 to estimate what constitutes the “toxic

amount”

 in the fundamental prohibition of

 “no toxic substances

in

toxic amounts”.

 Such instances

 include, but are not necessarily

limited to, the establishment of permit limits

 in the NPDES

permitting process.

The purpose of Subpart

F

is

 to provide some order and

framework within which these estimations can

 be made.

It

is

intended to provide directive

 to the Agency

as

 to what

 it must

and must not include when

 it does such estimations.

It

 is also

intended to let the regulated community know what

 the Agency can

and cannot consider when

it

 d’oes such estimations.

 Moreover,

it

is intended

to

 let any person,

 from the regulated community

or

otherwise,

 know what this Board views as permissible procedures

for estimating

 the toxic concentration

 of any chemical.

In

short,

 the purpose of Subpart F is

 to provide an out—in-the—open

 set of procedures for estimating toxicity.

It

 is equally important

 to note what Subpart F

 is not

intended to be.

 In particular,

it

 is not intended to

 be an NPDES

permitting manual,

 as some would apparently wish

 it to be.

It

does

 not,

 for example, specify

 the detailed procedures the Agency

must

use

 in translating an estimation

 of toxicity into an NPDES

permit limit.

 This and similar matters are within the purview

of

the Agency as

 the State authority responsible for awarding NPDES

permits.

 The Board can only accept the word,

 and past actions,

of

 the Agency

 that

it

 intends

 to fully comply with

 its NPDES

role,

 including

 the compilation of such “manuals” and permit

writers guides

 as may

 be necessary

 (R2.

at

 1207;

 PC #25

at

 8—9).

‘rhi’s perspective notwithstanding,

 there would still appear

to be some who would question whether Subpart

 F accomplishes

its

purposes.

 The Board believes

 that at least

 a part of this doubt

is based on commentors’

 less-than—complete or authoritative

review of

 Subpart

F.

 Among

 the remaining,

 the principal doubt

 appears to flow from the perspective

 that Subpart

 F contains some

elements of choice about which reasonable experts might be

expected

 to differ.

 The Board agrees that some such elements are

present

 in Subpart

F,

 but nonetheless believes

 that they are

minor, perhaps inevitable, and are neither

 of the frequency

of

occurrence nor

 of the magnitude

 to significantly influence the

utility of

 Subpart

F.

Subpart

 F follows well—accepted procedures used

in

toxicological assessment.

 Toxicological assessment

 is, however,

not without

 its inherent uncertainties.

It

is

 a science much

burdened

 by complex,

 interrelated phenomena that now and

 into any

foreseeable future has

 to be expected to present instances where

reasonable

 experts are going

 to disagree

 (e.g., Exh.

 117 at

2).

However, most emphatically

 this situation must not provide excuse

107—299

—34—

for us to set aside

 that wealth of “accepted” toxicological

principle which can so usefully instruct us towards

 the proper

economic,

 social,

 and environmental management we are charged

to

pursue.

 In its simplest fashion, part and parcel of using

 toxicological assessment

 is the acceptance

of

 its occasional

wart,

 including that reasonable experts may sometimes disagree.

It

 has not

 in fact been demonstrated within this record,

even allowing that experts may sometimes disagree,

 that such

incidents are likely to occur other than rarely.

It

 has also not

been demonstrated that,

 should experts disagree, any result which

would

 flow from their disagreement would necessarily lead

to

different regulatory

 results.

 In any event,

 the Board again

emphasizes that

 it stands ready

 to resolve such disputes

 if and

when they are brought before

it.

In sum,

 the Board believes

 that Subpart

 F has

 a necessary

and well—defined purpose.

 It believes

 that,

 as constructed,

Subpart F incorporates the best pertinent procedures

of

toxicological assessment.

 It also believes that Subpart F has

utility in achieving

 its purpose.

Alleged Unlawful Delegation

 of Rulemaking Authority

Concerns have been raised that the Subpart

 F procedures

for

deriving narrative criteria constitute an

 improper subdelegation

of

 the Board’s rulemaking authority to the Agency.

 (e.g.,

Rl.

at

224,

 296—97,

 539,

 554—59,

 933; R2.

at

 66—67,

 74, 94—101, ll0~

115—16;

 PC #11

at

 3—9;

 PC #10 at

 21—24).

 Pursuant to Subpart

F,

the Agency calculates

 various

 “water quality criteria”

 based upon

a detailed series of procedures

 for those

 new substances which

are not limited by

 a specific numeric standard.

 The question

arises whether

 this procedure constitutes an improper delegation

of’the Board’s

 rulemaking authority because

 the Agency rather

than the Board “derives”

 the numeric criteria.

This question misses, among other matters,

 the essential

distinction between a standard and a criterion.

 The standard

here

 is “no toxic substances

 in toxic amounts.”

 Criteria derived

by the Agency under

 the narrative standard procedure merely

operate as

 a means of

 refining the measure of

 “toxic amount”

for

a given substances

 or combination

 of substances.

The Board recognizes

 its sole auth’ority under

 the Illinois

Environmental Protection Act to promulgate regulations

 (Ill.

 Rev.

Stat.

 1987,

ch.

 11l’~’, pars.

 1005 and 1027).

As

 pr’oposed by

the

Agency and modified by

 the Board, cr:teria derived under

the

narrative standard procedures do not

 rise

 to the level

of

standards

 (see above).

 The Board does not view the Subpart

F

procedures as constituting an improper delegation

of

 its rule-

making authority

 to the Agency.

107—300

—35—

Criteria

 in Enforcement Actions

The narrative criteria indeed have a special limited role

in

an enforcement action brought pursuant

 to Title VIII of the

Act.

 Exceeding

 a criterion does not

 in and of

 itself constitute

a violation of

 the “no toxicity standard”.

 Viewed

in

 terms of a

possible enforcement

 action for violation of a general water

quality standard,

 the person bringing the action would be

required to prove

 that

a

 respondent violated the standard of no

toxicity.

 Where alleged violation of the toxicity standard

is

based upon an alleged excursion of

 a criterion,

 the person

bringing the enforcement action has the burden of

 going forward

with proof

 and of persuasion regarding the validity and

correctness

 of application of the criterion.

Respondent may defend against

 the application of

 such

a

criterion by challenging whether

 the complainant properly

followed

 the procedures

 of Subpart

F,

 as well as challenging the

data relied upon

 by the complainant

 in calculating

 the numeric

criterion.

 The complainant would be required

 to justify

its

procedures, particularly

 in those instances where unusual species

or extreme exposure times were relied upon.

Notice of Criterion Determinations

In the normal course,

 criteria will be developed by the

Agency during its review of an NPDES permit application,

 based

in

part on data supplied by the individual discharger.

 Once

developed, however, criteria might thereafter

 be applied

in

permitting and enforcement situations involving persons who had

no opportunity to provide

 input into the criteria derivatio’n

process.

 To ameliorate

 this situation,

 the Board requires the

Agency

 to notify the public by publication of notice

 in the

Illinois Register,

 and also

 to maintain

 records sufficient

to

support appropriate challenge

to

 ‘any criterion.

 These

requirements are

 found at

 Section 302.669.

When viewed

 in the context

 of an enforcement action,

the

enforcement

 notice

 (Ill.

 Rev.

 Stat.

 1987,

 ch. 1ll~, par.

 1031(d))

which requires the Agency

 to inform

 a person of

 the charges

alleged prior

 to issuing

 a complaint, may

 serve as a

 form of

notice

 by identifying’ the criterion allegedly exceeded.

The

opportunity

 for’ public participation

 is provided at the

enforcement hearing.

ECONOMIC CONSIDERATIONS

Estimat ions

Obtaining estimates of the costs associated with the instant

rule has proven difficult beyond that normally encountered

in

107—301

—36—

making environmental economic impact analyses.

 Principal

compounding factors include:

 (1) determining marginal costs of

the instant

 rule;

 (2) uncertainty as to the effects of exception

procedures;

(3)

 inability to determine the most effective

compliance methods; and

 (4) uncertainty about

 the number of

affected facilities.

Marginal costs are difficult

 to estimate because a number of

facilities are arguably out of

 compliance with current water

quality standards,

 effluent regulations,

 and/or pretreatment

requirements.

 If these facilities were

 in compliance with these

existing regulations,

 at least some of

 them would

 not require

additional

 actions to come into compliance with the provisions

of

the instant

 rule.

 However,

it

 is uncertain,

 short of doing site—

specfic analyses of each,

as

 to how many such

 facilities there

are.

Three exception procedures are of particular

 importance.

The first

 is the chlorination exception found at

 Section

304.121(b),

 the second is the proposed exception

 for intermittent

chlorination at proposed Section 304.221

 (see Docket B), and the

third

 is the allowed mixing provisions

 found

 at 302.102.

 Among

the facilities which would be out

 of compliance as

 a consequence

of adoption

 of the instant

 rule,

 the largest number are probably

facilities which would be out

 of compliance with the total

residual chlorine standard

 of 302.208

 (Exh.

 107;

 PC #24 at

3).

However,

 those facilities which qualify

for

 the 304.102(b)

exception can comply with the TRC standard

 b,y the simple,

 no—cost

expedient

 of ceasing

 to chlorinate

 (PC #25

at

 2—5).

 Similarly,

those facilities which qualify

 for the intermittent chlorination

exception, mostly within the steam electric category,

 would incur

no compliance costs related

 to the TRC parameter.

 Lastly,

 those

facilities which qualify

 for allowed mixing may require

 no action

to remain

 in compliance.

Estimation of the proper control strategies

 is compounded by

the wide differences among potentially—affected

 facilities and

facility—types, plus the certainty that

 the chemicals of concern

will differ among facilities;

 again,

 a definitive answer would be

available only through

 a site-specific analysis

 of each

facility.

It

 is likely that

 some facilities would have

 to use

add—on controls

 to mneet

 the requirements

 of the instant

 rule.

Others,

 however, are likely

to

 be able

 to comply by making

relatively minor,

 low—cost adjustments within their

 current

methods of operation

 (Exh. ‘96 at

 4-8).

 Still

 others are likely

to be able

 to comply via pre—treatment options at

 no direct cost

(PC #25

at

 6—7).

Lastly,

 there

 is uncertainty which arises concerning the

number of potentially affected facilities.

 This uncertainty

is

of two types: uncertainty related

 to projected performance

of

facilities,

 and uncertainty

 related to presence of

 regulated

107—302

—37—

substances

 imi Illinois effluents

 in general.

 In the first

context,

it

 is uncertain whether past discharge records are a

significant predictor of future ability

 to comply with the

proposed

 regulations.

 As the Agency points out,

 a single past—

exceedance

 of one of the proposed standards

 is not evidence

of

a

need

 for remediation,

 given that the “quality,

 reliability and

representativeness of

 individual measurements must receive some

consideration

 in formulating reasonable assumptions before any

remediation

 is warranted”

 (PC.

#25

at

6).

 The Agency adds

 that

a

single value exceeding a standard could be

 the result of

analytical

 error

 or a unique event

 that

is

 non—representative,

and that the Agency “certainly

.

.

.

 would

 not impose additional

treatment

 on a discharger with such an information base”

 (Id.).

The second context within which there

 is uncertainty

regarding the number

 of affected facilities

 relates

 to inadequate

data on the number

 of potentially regulated substances,

and

to

what degree these might occur

in

 Illinois discharges.

 The data

base

 is simply not available

 to say that there are “x” number

of

facilities which discharge substance

 “y”

 in such

 a manner

as

to

cause toxicity in Illinois waters,

 let alone

 to identify the

various

 “y” substances which may exist.

 This condition relates

to the fact that Section

 302.210

is

 intended

 to cover all toxic

substances

 capable of

 causing toxicity

 in Illinois waters.

 No—

one knows either the identity or number of all such substances.

It

 is only known

 that when they are recognized

 to be toxic and to

occur

 in toxic amounts, action

 to control

 them below toxic

amounts must

 be undertaken.

DENR Cost Analysis

In spite of

 the inherent problems associated with doing

a

cost analysis

 in the instant

 arena,

 as noted above,

 DENR has

taken on

 the difficult

 task

 of attempting

 to quantify the costs

of the proposed

 rule.

 The DENR analysis

 is of limited scope.

It

only addresses costs

 related to compliance with the arsenic,

cadmium,

 TRC,

 chromium,

 cyanide, and lead w~terquality standards

of Section 302.208, and then only as “major°” facilities might

need

 to comply with these standards.

Within these limitations,

 however,

 the DENR analysis

consists

of

 “worst—case” condirons,

 in that

 it assumes that

(1)

one past occurrence of

 an exceedance warrants remediation,

and

(2) all remediations will

 be via add—on control

 systems.

 Within

this framework, DENR presents three scenarios wherein there

is

no

8 A “major”

 facility

 is any facility named

 on a list

 negotiated

between

 the Agency and the USEPA

 (R2.

at

 890—1).

 At present

there are approximately 275

 “major”

 facilities

 in Illinois

 CR2.

at 1063).

107—303

—38—

allowed mixing,

5

 of available flow

 is allowed

 for mixing, and

25

 of available flow

 is allowed

 for mixing.

 DENR initially

estimates

 the total costs

 of these three scenarios,

 over

a

 30—

year period,

 to be $7~8.4million,

 $598.1 million, and $514.7

million,

 respectively~ (PC #24

at

4).

These costs include

 full compliance with current regulations

 and permit limitations,

 and hence are not marginal

 costs related

to

 the instant

 rule.

 DENR estimates

 the costs necessary

to

comply with current permit limitations

 to he

 $478.4 million over

a

 30-year period,

 applicable

 to all three mixing scenarios.

If

this figure

 is subtracted from each

 of the above figures,

the

marginal costs within the three scenarios

 are $300 million,

$119.7 million, and $36.3 million,

 respectively, over

a

 30—year

period

 (PC #24 at

5).

Similarly,

 if recognition of

 the Section 304.211

chlorination exemption

 is made, DENR estimates

 that the total

costs ~ould

 be reduced by $63.7,

 $56.4,

 and $53.5 million over

30

years

 for the three mixing scenarios,

 respectively

 (PC #24 at

Table

 19A,

 20A,

 and 2lA).

 Margin costs for

 the instant rule

become,

in

 turn,

 $280.6,

 $108.4, and $27.1 million over

 30 years,

respectively.

The Board believes the weight given to these “worst case”

figures must

 be tempered with consideration of the assumption

of

universal use of add—on controls,

 and the degree

 to which

the

add—on control assumption

 inflates

 the estimated costs.

 This

assumption

 seems

 to cause particular difficulties with the costs

assigned tomunicipal dischargers.

 A municipal discharger would

not obviously use add—on treatment systems

 to address

 a metals

problem.

 Metals

 in municipal discharges,

 with rare exception,

derive from a few industrial

 sources

 tributary

 to the municipal

treatment works.

 If a municipal works needs to reduce its metals

output,

 it would

 not logically attempt

 to do so after these

sources have mixed with other

 in—coming wastestreams,

 but rather

prior

 to mixing.

It

 is simply not sensible

 to combine

 influent

streams, and then have

 to treat

 the whole, when the offending

smaller portion can be addressed directly at lesser cost.

Moreover,

 the Board’s pretreatment regulations provide

a

regulatory mechanism wherein

 the muncipal discharger

 can bring

about

 this type of program.

The Board notes

 that the cost figures cited herein are

different

 from the figures originally offered by DENR

 in Exh.

96.

 DENR revised its

 c’ost estimates based upon comments at

hearing and has presented

 these

 revised cost estimates

 in PC

#24.

It

 is these latest,

 PC #24 figures, which are herein

cited.

 The Board appreciates me

 extensive effort

 DENP. has made

to prepare

 the revised figures

 in time for their consideration

herein.

107—304

—39—

The Agency takes something

 of the same view regarding costs

assigned

 to municipal dischargers,

 from which

 it concludes that

“the

 extreme costs reported for removal technology and sludge

disposal at municipal treatment plants should be

 removed

 in their

entirety from the impact statement”

 (PC #25 at

7).

 The Board

is

uncertain as

 to what the total effect of

 removing the municipal

costs

 from the DENR estimates would be, since at

 least some

fraction of the costs would seemingly have to

 be shifted

 to the

tributary

 industrial dischargers.

 However, the Board does note

that add—on metals treatment costs attributed

 to municipal

treatment works

 range from 63.4

of

 the total estimated costs

in

the no-mixing scenario

 to 75.7

 of the total estimated costs

in

the 25

 mixing scenario

 (PC #24

 at Tables

 l9A,

 20A,

and

 21A).

Steel Group Estimated Costs

The Steel Group estimates costs

to

 its five facilities which

discharge

to

 Illinois waterways

 to be approximately $19 million

per facility

 (PC #30 at 13—14).

 This figure includes sludge

disposal costs over

 a thirty year period.

 It does not

 include

costs

 to mills which discharge

 to POTWs or costs

 for compliance

with the narrative standard of

 Section 302.208

 (Id.).

The Steel Group’s figures contrast with DENR’s estimated

 30—

year $5.25 million average

 total cost per primary metals facility

(PC #24 at Tables l9A,

 20A,

 and 2lA).

 Additionally,

approximately half of

 the DENR estimated

 cost

 is for compliance

with current regulations

 (Id.

 at Table

 22A),

 rather than for

compliance with the instant

 rule.

Benefits

DENR opines that,

 given

 the time frame of the instant

 rule,

‘it was not possible for DENR

 to conduct

 a formal,

 rigorous study

of environmental benefits of

 the instant

 rule

 (PC #24

at

 23).

In

lieu thereof DENR conducted a spatial analysis

 to identify

the

areas of

 the State mostly

 likely to benefit

 from adoption of

the

pr-posed

 rules

 (Id.

 at 24—36

 and Figures

 1—12).

 On this basis,

DL”~Rfinds

 that waterways

 in most

of

 the stream basins

of

Illinois are impacted by at

 least one toxic pollutant, and thus

that benefits from reduction in discharges

 of toxic pollutants

would occur

 in most stream basins

 (Id.).

DENR has further reviewed the degree

 to which

 Illinois

waterways are impacted by various categories

 of toxic

pollutants.

 From this analysis DENR concludes

 that

 toxic metals,

priority organics,

 and pesticides

 impact 6.2,

 2.2,

 and 0.9

of

Illinois’

 stream miles,

 respectively

 (Exh.

82

 at 3—5).

Similarly,

 DENR concludes

 that

 12.3,

 2.8,

 and 7.9

of

 Illinois’

acreage

 in inland lakes

 is impacted by toxic metals,

 priority

organics,

 and pesticides,

 respectively

 (Id.

at

 306).

 One benefit

107—305

—40—

to be derived from effective toxics control woud

be

 to eliminate

the toxic impact

 in all of these waters.

Conclusion

The Board

is

 charged under

 the Act

 to take into account the

technical feasibility and economic reasonableness

 of all

regulatory proposals before

it

 (Act

 at Section 27(a)).

Compliance with the proposed regulations can be achieved with

existing technology

 (e.g.,

 Exh.

 108).

 Therefore,

 the substantive

issue before the Board is solely ‘vhether implementation of the

instant rule

 is economically reasonable.

The Board has considered the various cost and benefit

analyses presented in the record,

as

 noted above.

 From this

record

it

is

 reasonable

 to conclude that implementation

of

 toxics

control will have costs ranging upwards

 of several million

dollars per year now and into the foreseeable future.

 Expected

benefits include an improved aquatic environment and a benefit

to

human health through reduced presence of toxic substances

 in the

human environment.

 Given

 this balance,

 the Board concludes

 that

the instant

 rule,

 will not be economically unreasonable.

While the Board’s conclusion are not driven by potential

USEPA action,

 if the

 instant rule

 is not adopted by the State,

then the USEPA will impose

 a similar, but not necessarily

identical,

 program.

 Thus,

 another view of

 the question before

this Board

 is whether

 the instant rule

 is economically

 reasonable

when compared to the alternative of

 a USEPA—imposed program.

The USEPA has not specified the details of

 the program

it

would impose upon

 Illinois if Illinois fails

 to adopt

 its own

program.

 While one can speculate that

 the economic difference

may be minimal,

 the Board has focused primarily

 on the record

in

this proceeding

 as the basis for its economic conclusions.

However, given

 the relatively little latitude afforded by the

CWA,

it

 is unlikely that either the costs or benefits associated

with any alternative program would differ substantially from

those associated with the instant rule.

 ~ny program will have

to

cause the elimination of toxic substances

 in toxic amounts

in

Illinois waters.

 Whether

 this

 is done as

a

 result of a Board

mandate

 or a USEPA mandate should not change

 in significant

measure

 the number of dischargers who are required

 to take

corrective

 action.

 Neither should

 it affect the basic methods

and costs of compliance

 (capital, operating,

 and sludge

management costs),

 nor the environmental benefits.

AMENDMENTS MADE

 IN RESPONSE TO JCAR RECOMMENDATIONS

As noted previously

 (see

p.

 5), JCAR recommends certain

alterations

 to the Second Notice proposal intended

 to improve the

107—306

—41—

overall clarity of

 the instant

 rules

 (Exh.

 123,

 124).

 Following

are the changes which are made

 in response

 to JCAR.

 In each

case,

 language which has been added

 to the language of Second

Notice is underlined, and language which has been deleted from

the language of Second Notice is struck—through.

Section 302.l02(b)(6)

configured as

 to assure a ~ea~e~b+e

 zone of passage

Section 302.102(b)(9)

where the water quality standard for the constituent i~n

question

 is already

.

Section 302.102(e)

.For

 the purposes

 of this

 subsection,

 “immediate”

dispersion means

 an effluent’s merging with receiving waters

without delay

 in time after

 its discharge and within close

proximity of the end of

 the discharge pipe,

 so as

to

minimize the length

 of exposure time

 of aquatic life

to

undiluted effluent,

and

 “rapid” dispersion means

an

effluent’s ~~ek

 merging with

 receiving waters

 so as

to

minimize the length

 of exposure time of aquatic life

to

undiluted effluent.

Section 302.615(h)

If

 a resident or indigenous species, whose presence

is

necessary to ~

 the sustain commercial7 or

recreational activities,

 or eeee~4ea~de~

 ~f the

prevent disruptions

 of the waterbody’s

 ecosystem,

 including

but not limited

 to loss of species integrity

or

 a shift

 to a

biotic community dominated by pollution—tolerant

 species,

will

not

 be protected

 by the calculated

 FAV,

 then the EC—50

or LC—50

for

 that species

 is used as

 the FAV.

Section 302.618

If data are available

 to show that

 a relationship exists

between a water quality characteristic

 (WQC)

 and acute

toxicity

 to two or more species,

 an Acute Aquatic Toxicity

Criterion

 (AATC)

~

 shall

 be calculated.

Section 302.627

a)

 A chemical-specific Chronic Aquatic Toxicity Criterion

(CATC)

 is calculated using procedures

 specified

in

subsections

 (b) and te~when chronic toxicity data are

available for

 at least five species from

 five different

North American genera of

 freshwater organisms,

 including

representatives

 from the following

 taxa:

107—307

—42—

1)

 Representatives

of

 two families

 in the Class

Osteichthyes

 (Bony Fishes).

2)

 The family Daphnidae.

3)

 A benthic aquatic macroinvertebrate.

4)

 An alga

 (96—hour test)

 or a vascular aquatic plant.

b)

 No change

c)

 If data are not available

 to meet the requirements

of

subsection

 (a), a CATC

 is calculated by dividing

 the FAV

by the highest acute—chronic ratio obtained from at

least one fish and one invertebrate species.

The

acute—chronic ratio

for

 a species equals

 the acute

toxicity concentration from data considered

 under

Sections

 302.612 through 302.618, divided

 by the chronic

toxicity concentration from data calculated under

See~en 38’~-6~subsections

 (a) and

 (b),

 subject

 to the

following conditions:

1)

 If the toxicity of

 a substance

 is related

 to any

water quality pa~ame~e~

 characteristic

 (WQC),

the

acute—chronic ratio must

 be based on acute and

 chronic toxicity data obtained from organisms

exposed

 to test water with s~m4+ar74? ne~

4den~4eal~~a4t~es ef these we~e~qtia44~yp&rarne~ers

WQC values that are representative

 of the WQC

values of the waterbody under consideration.

Preference under

 this subsection

 must be given

to

data from acute and chronic tests done by the same

author or

 in the same

 reference

 in order

to

increase the likelihood

 of comparable test

conditions.

2)

 No change

3)

 No change

4)

 No change

~

5)

 If acute and chronic ra~+es toxicity data are

unavailable

 to determine an acute-chronic ratio

for

at least

 two North American freshwater

 species,

the

EAP~m~s~be ea~e~±a~ed

 by d4v4d4n~the F~Vby

a

?ee~e~a ratio of

 25 shall

 be used.

ed)

If

 a resident or

 indigenous

 species., whose presence

is

necessary to ma4n~a4n the -sustain commercialT

or

recreational activities,

 or eee~e~4ea~

 d4~’e~s4~y

 ef the

107-308

—43—

prevent disruptions of the waterbody’s ecosystem,

including but not limited to loss

 of species integrity

or

 a shift

to

 a biotic community dominated by pollution-

tolerant species, will

 not be protected by the

calculated CATC,

 then the MATC for that species

 is used

as

 the CATC.

Section

 302.633(b)

one—tenth of the LOAEL may shall

 be substituted for

the

NOAEL.

Section 302.651

HNCs are derived

for

 those

 toxic substances

 for which

any exposure,

 regardless of

 extent, carries some risk

of

damage as

 specified in subsections

 (a) and

 (b).

 Mes~

s~bs~anees~e~u4a~ed

 t~nde~th4s See~4ene~se eanee~

-(-eare4ne~enj- er- mti~a~4ens

 ~en-)--~ Hewever--7 ether-

de+e~er-4ett~e?fee~s may be 4den~4?4ed 4n the ?~thr-e7

Section 302.663(b)(5)

A Bioconcentration Factor calculated using dry tissue

weight may shall

 be converted

Section 302.663(c)

If the Kow

is

 not available from laboratory testing,

it

may shall

 be calculated

Section 305.102(a)

information concerning

 the biological

 impact

of

the

discharge as specified by the Agency,

 pursuant

 to Section

39

of the Act;

Section 309.103(a)(3)

In addition

 to the above application forms,

 the Agency may

require, pursuant

 to Section

39

 of the Act,

the

installation,

 use, maintenance and reporting of

 results from

monitoring equipment and methods,

 including biological

monitoring.

 ‘The Agency may require, pursuant

 to Section

39

of the Act,

 effluent toxicity testing

 to show compliance

with

35

 Ill.

 Adm.

 Code

 302.621 and 302.630.

 If this

toxicity testing shows

 the effluent

 to be toxic,

 the Agency

may require further

 testing and identification of

the

toxicant(s) pursuant

to

35

 Ill. Adm.

 Code 302.210(a).

107—309

—44—

ORDER

The Clerk

 of the Board

 is directed

 to submit the following

adopted

 rule to

 the Secretary

 of State

 for final notice.

TITLE 35:

 ENVIRONMENTAL PROTECTION

SUBTITLE

C:

 WATER POLLUTION

CHAPTER

I:

 POLLUTION CONTROL BOARD

PART

301

INTRODUCTION

Section

301.101

301.102

301.103

301.104

301.105

301.106

 _______________________________

301

.

107

________________

301.108

_____________________

301.200

301.205

301.210

301.215

301.220

301.225

301.230

 Basin

301.235

 Board

301.240

CWA

301.245

301.250

301.255

301.260

301.265

301.270

301.275

301.280

301.285

301.290

301.295

301.300

301.305

301.310

301.315

301.320

301 .325

301.330

301.335

301 .340

301.345

301.350

Authority

Policy

Repeals

Analytical

 Testing

References

 to Other

 Sections

Incorporations by Reference

Severability

Adjusted Standards

Definitions

Act

Administrator

Agency

Aquatic Life

Artificial

 Cooling Lake

Calumet

 River System

Chicago River System

Combined Sewer

Combined Sewer Service Area

Construction

Dilution Ratio

Effluent

Hearing Board

Industrial Wastes

Thstitute

Interstate Waters

Intrastate Waters

Land Runoff

Marine Toilet

Modif ication

New Source

NPDES

Other Wastes

Person

Pollutant

Population Equivalent

Pretreatment Works

‘27—310

—45—

Primary Contact

Public and Food Processing Water

 Supply

Publicly Owned Treatment Works

Publicly Regulated Treatment Works

Sanitary Sewer

Secondary Contact

Sewage

Sewer

Sludge

Standard of Performance

STORET

Storm Sewer

Treatment Works

Underground Waters

Wastewater

Wastewater

 Source

Water c raft

Waters

References

 to Previous Rules

AUTHORITY:

 Implementing

 Section

 13 and authorized

 by Section

27

of the Environmental Protection Act

 (Ill.

 Rev.

 Stat.

 1987,

oh.

111

 1/2,

 pars.

 1013 and

 1027).

SOURCE:

 Filed with the Secretary

 of State January

1,

 1978;

amended at

3

 Ill.

 Reg.

25,

p.

 190,

 effective June

21,

 1979;

amended at

5

 Ill.

 Reg.

 6384,

 effective May 28,

 1981;

 codified at

6

 Ill.

 Reg.

 7818;

 amended

 in R88—l

at

13

 Ill.

 Reg.

 5984,

effective April

18,

 1989;

 amended

 in R88—2l(A)

at

 Ill.

Reg.

,

 effective

Note:

 Capitalization denotes statutory language

Section 301.106

 Incorporations

 by Reference

a)

 Abbreviations.

 The following abbreviated

 names are used

for materials incorporated

 by reference:

“ASTM” means American Society

 for Testing and

Materials

“GPO” means Superintendent

 of Documents,

 U.S.

Government Printing Office

“NTIS” means National Technical Information Service

“Standard Methods” means

 “Standard Methods

for

the

Examination

 of Water and Wastewater”,

 available

from the American Public Health Association

301.355

301.360

301.365

301.370

301.375

301.380

301.385

301.390

301.395

301.400

301.405

301.410

301.415

301.420

301.425

301.430

301.435

301.440

APPENDIX A

“USEPA” means United States Environmental

Protection Agency

107—311

—46—

b)

 The Board incorporates

 the following publications by

reference:

American Public Health Association et al.,

1015

Fifteenth Street,

 N.W., Washington,

 D.C.

20005

Standard Methods for

 the Examination

 of Water

and Wastewater,

 16th Edition,

1985

ASTM.

 American Society for Testing and Materials,

1976 Race Street, Philadelphia,

 PA 19013

 (215)

299—5400

ASTM Standard E 724—80 “Standard Practice for

Conducting Static Acute Toxicity Tests with

Larvae

 of Four Species

 of Bivalve Molluscs”,

approved 1980.

ASTM Standard

 E 729—80 “Standard Practice for

Conducting Static Acute Toxicity Tests with

Fishes,

 Macroinvertebrates,

 and Amphibians”,

approved 1980.

ASTM Standard

 E 857—81 “Standard Practice for

Conducting Subacute Dietary Toxicity Tests

with Avian Species”, approved 1981.

ASTM Standard

 E 1023—84 “Standard Guide

for

Assessing

 the Hazard

of

 a Material

 to Aquatic

Organisms and Their Uses”,

 approved

 1984.

ASTM Standard E

 1103—86 “Method

for

Determining Subchronic Dermal Toxicity”,

approved 1986.

ASTM Standard

 E 1147-87

 “Standard Test Method

for Partition Coefficient

 (n—Octanol/Water)

Estimation

 by Liquid Chromatography”, approved

February

27,

1987

ASTM Standard

F

 1192-88

 “Standard Guide

for

Conducting Acute Toxicity Tests

 on Aqueous

 Effluents with Fishes, Macroinvertebrates and

Amphibians”, approved

 1988.

ASTM Standard

 E 1193—87

 “Standard Guide

for

Conducting Renewal Life-Cycle Toxicity Tests

with Daphnia Magna”, a~proved 1987.

ASTM Standard

 E 1241—88 “Standard Guide

for

Conducting Early Life-Stage Toxicity Tests

with Fishes”,

 approved

1988.

107—312

—47—

ASTM Standard E 1242—88 “Standard Practice

for

Using Octanol—Water Partition Coefficients

to

Estimate Median Lethal Concentrations

 for Fish

due

 to Narcosis”, approved 1988.

ASTM Standard

 E 4429—84

 “Standard Practice

for

Conducting Static Acute Toxicity Tests on

Wastewaters with Daphnia”, approved 1984.

NTIS.

 National Technical Information Service,

5285

Port Royal Road,

 Springfield, VA 22161

 (703)

 487—

4600

SIDES:

 STORET Input Data Editing System,

January,

 1973, Document Number PB—227

 052/8

Water Quality Data Base Management Systems,

February,

 1984, Document Number AD—P004

 768/8

(JSEPA.

 United States Environmental Protection

Agency, Office

 of Health and Environmental

Assessment,

 Washington,

 D.C.

20460

Mutagenicity and Carcinogenicity Assessment

for 1,3—Butadiene,

 September,

 1985,

 Document

Number EPA/600/8—85/004A

c)

 The Board

 incorporates the following federal regulations

by reference:

40 CFR 136

 (1988)

4OCFR

141

 (1988)

40 CFR 302.4

 (1988)

d)

 This Section incorporates

 no future editions or

amendments.

Section

 301.107

 Severability

If any provision of this

 Subtitle

 is adjudged invalid,

or

 if the

application thereof

to

 any person or

 in any circumstance

is

adjudged

 invalid,

 such invalidity

 shall

 not affect the validity

of

 this Subtitle as

 a whole,

 or any Part,

 Subpart, Section,

subsection, sentence

or

 clause thereof

 not adjudged invalid.

Section 301.108

 Adjusted Standards

a)

 AFTER ADOPTING A REGULATION OF GENERAL APPLICABILITY,

*

 THE BOARD MAY GRANT,

 IN A SUBSEQUENT ADJUDICATORY

107—3 13

—48—

DETERMINATION,

 AN ADJUSTED STANDARD FOR PERSONS WHO CAN

JUSTIFY SUCH AN ADJUSTMENT CONSISTENT WITH SUBSECTION

(a) OF SECTION

 27 OF THE ILLINOIS ENVIRONMENTAL

 PROTECTION ACT.

 IN GRANTING SUCH ADJUSTED STANDARDS,

THE BOARD

MAY

 IMPOSE SUCH CONDITIONS AS

MAY

 BE NECESSARY

TO ACCOMPLISH THE PURPOSES OF THE ILLINOIS ENVIRONMENTAL

PROTECTION ACT.

 THE RULE-MAKING PROVISIONS OF THE

ILLINOIS ADMINISTRATIVE PROCEDURE ACT

 (Ill.

 Rev.

 Stat.

1987,

ch.

 127,

 par.

1001

et

 seg) AND TITLE VII OF THE

ENVIRONMENTAL PROTECTION ACT SHALL

NOT

 APPLY TO SUCH

SUBSEQUENT DETERMINATIONS.

 (Section 28.1(a)

 of the Act)

b)

 IN ADOPTING A RULE OF GENERAL APPLICABILITY,

 THE BOARD

MAY SPECIFY THE LEVEL OF JUSTIFICAT:ON REQUIRED OF A

PETITIONER FOR AN ADJUSTED STANDARD CONSISTENT WITH THIS

SECTION.

 (Section 28.1(b)

 of the Act)

C)

 IF A REGULATION OF GENERAL APPLICABI11TY DOES NOT

—

 SPECIFY A LEVEL OF JUSTIFICATION REQ3IRED OF A

PETITIONER TO QUALIFY FOR AN ADJUSTED STANDARD, THE

BOARD MAY GRANT INDIVIDUAL ADjUSTED STANDARDS WHENEVER

THE BOARD DETERMINES UPON ADEQUATE PROOF BY PETITIONER,

THAT:

1)

 FACTORS RELATING TO THAT PETITIONER ARE

—

 SUBSTANTIALLY AND SIGNIFICANTLY DIFFERENT FROM THE

FACTORS RELIED UPON BY THE BOARD IN ADOPTING THE

GENERAL REGULATION APPLICABLE TO THAT PETITIONER

2)

 THE EXISTENCE OF THOSE FACTORS JUSTIFIES

AN

—

 ADJUSTED STANDARD

3)

 THE REQUESTED STANDARD WILL NOT RESULT

IN

*

 ENVIRONMENTAL OR HEALTH EFFECTS SUBSTANTIALLY AND

SIGNIFICANTLY MORE ADVERSE THAN THE EFFECTS

CONSIDERED

 BY THE BOARD

 IN ADOPTING THE RULE OF

GENERAL APPLICABILITY; AND

4)

 THE ADJUSTED STANDARD

 IS CONSISTENT WITH ANY

APPLICABLE FEDERAL LAW.

(Section

 28.1(c)

 of the Act)

107—31.4

—49—

TITLE 35:

 ENVIRONMENTAL PROTECTION

SUBTITLE C:

 WATER POLLUTION

CHAPTER

I:

 POLLUTION CONTROL BOARD

PART 302

WATER QUALITY STANDARDS

Section

302.100

302.101

302.102

302.103

302.104

302.105

Section

302.201

302.202

302.203

302.204

302.205

302.206

302.207.

302.208

302.209

302.210

302.211

302.212

SUBPART A:

 GENERAL WATER QUALITY PROVISIONS

Definitions

$cope and Applicability

Allowed Mixing, Mixing Zones and ZID5

Stream Flows.

Main River Temperatures

Nondegradation

SUBPART B:

 GENERAL USE WATER QUALITY STANDARDS

Scope and Applicability

Purpose

Bnnathr-a+

S+~d~e

Offensive Conditions

pH

Phosphorus

Dissolved Oxygen

Radioactivity

Numeric Standards

 for Chemical Constituents

Fecal Coliform

S~bsthneesPe~4e~e ~qt~a’~4eb4fe Other Toxic Substances

Temperature

Ammonia Nitrogen and Un—ionized Ammonia

SUBPART

D:

 SECONDARY CONTACT AND INDIGENOUS AQUATIC LIFE

STANDARDS

SUBPART

C:

 PUBLIC AND FOOD PROCESSING WATER SUPPLY STANDARDS

Section

302.301

 Scope and Applicability

302.302

 Algicide Permits

302.303

 Finished Water

 Standards

302.304

 Chemical Constituents

302.305

 Other Contaminants

302.306

 Fecal Coliform

Sect ion

302.401

302

.

402

302.403

302.404

302.405

302.406

302.407

302.408

302.409

302.410

Scope and Applicability

Purpose

Unnatural

 Sludge

pH

Dissolved ‘Oxygen

Fecal

Coliform

 (Repealed)

Chemical Constituents

Temperature

Cyanide

Substances Toxic

 to Aquatic Life

107—315

—50—

SUBPART E:

 LAKE MICHIGAN WATER QUALITY STANDARDS

Scope and Applicability

 Dissolved Oxygen

pH

Chemical Constituents

Fecal Coliform

Temperature

Existing Sources

 on January

1,

1971

Sources under Construction But Not

 in Operation

on January

1,

1971

302.509

 Other Sources

Scope and Applicability

Definitions

Mathematical Abbreviations

Data Requirements

Determining

 the Acute Aquatic Toxicity Criterion

 for an

Individual Substance

—

 General

 Procedures

302.615

 Determining

 the Acute Aquatic Toxicity Criterion

—

Toxicity Independent

 of Water Chemistry

302.618

 Determining

 the Acute Aquatic Toxicity Criterion

—

Toxicity Dependent on Water Chemistry

302.621

 Determining

 the Acute Aquatic Toxicity Criterion

—

Procedures

 for Combinations

 of Substances

_______

 Determining

 the Chronic Aquatic Toxicity Criterion

for

an Individual Substance

—

 General Procedures

_______

 Determining the Chronic Aquatic Toxicity Criterion

—

Procedure

 for Combination

of

 Substances

_______

 The Wild and Domestic Animal Protection Criterion

The Human Threshold Criterion

Determining

 the Acceptable Daily Intake

Determining

 the Human

 ‘Threshold Criterion

The Human Nonthreshold Criterion

Stream

Flow

 for Application

of

 Human Nonthreshold

Criterion

Bioconcentration Factor

Determination of Bioconcentration Factor

Utilizing

 the Bioconcentration Factor

Listing of Derived Criteria

APPENDIX A

APPENDIX B

References

 to Previous Rules

Sources of Codified Sections

AUTHORITY:

 Implementing Section 13 and authorized by Section

27

of the Environmental Protection Act

 (Ill.

 Rev.

 Stat.

 1987,

ch.

111 1/2,

 pars.

 1013 and 1027).

Section

302.501

302.502

302.503

302.504

302.505

302.506

302.507

302.508

Section

302.601

302.603

302.604

302.606

302.612

SUBPART

F:

 PROCEDURES FOR DETERMINING WATER QUALITY CRITERIA

302.627

302.630

302.633

302.642

302.645

302.648

302.651

302.654

302.657

302.658

302.660

302.663

302.666

3(1 2.669

Determ:

Determ:

ninq the Risk Associated Intake

.ning

 the Human Nonthreshold Criterion

I

07—3U~

—51—

SOURCE:

 Filed with the Secretary of State January 1,

 1978;

amended

at

2

 Ill. Reg.

44,

p.

 151, effective November

2,

 1978;

amended at

3

 Ill.

 Reg.

20,

p.

 95, effective May 17,

 1979;

 amended

at

3

 Ill. Reg.

25,

p.

 190,

 effective June

21,

 1979;

 codified at

6

Ill. Reg.

 7818,

 effective June

22,

 1982;

 amended at

6

 Ill.

 Reg.

11161,

 effective September

7,

 1982;

 amended at

 6 Ill.

 Reg.

 13750,

effective October

26,

 1982;

 amended at

8

 Ill.

 Reg.

 1629,

effective January 18,

 1984;

 peremptory amendments

at

10

 Ill.

 Reg.

461,

 effective December

 23, 1985;

 amended

 in R87—27 at

 12 Ill.

Reg.

 9911,

 effective May

27,

 1988;

 amended

 in R85—29 at

 12 Ill.

Reg.

 12082, effective July

11,

 1988;

 amended

 in R88—l

at

13

 Ill.

Reg.

 5998,

 effective April

18,

 1989;

 amended

 in R88—2l(A)

at

Ill. Reg.

,

 effective

SUBPART A:

 GENERAL WATER QUALITY PROVISIONS

Section 302.100

 Definitions

Unless otherwise specified,

 the definitions of the Environmental

Protection Act

 (Ill.

 Rev.

 Stat.

 1987,

ch.

 111 1/2,

 par.

1001

et

seq.)

and

35

 Ill.

 Adm.

 Code 301 apply to this Part.

 As used

in

this Part,

 each of

 the following definitions has the specified

meaning.

“Acute Toxicity” means

 the capacity of any substance or

combination of substances

 to cause mortality

 or other

adverse effects

 in an organism resulting from

 a single

or short-term exposure to the substance.

“Adverse Effect” means any gross or overt effect on

an

organism,

 including but not limited to reversible

histotathological damage,

 severe convulsions,

irreversible functional

 impairment and lethality,

as

well

 as any non-overt effect on an organism resulting

in

functional

 impairment

 or pathological

 lesions which may

affect the performance of

 the whole oroanism,

 or which

reduces an organism’s ability

to

 respond to an

additional challenge.

“Chronic Toxicity”

 means

 the capacity of any substance

or combination

 of substances

 to cause

 injurious or

debilitating effects

 in an organism which result from

exposure for a

 time period representin~a substantial

portion of

 the natural

 life cycle

of

 that organism,

including but not limited

 to the growth phase,

the

reproductive phases

 or such critical portions of

the

natural

 life cycle of

 that organism.

“Criterion” means

 the numerical concentration of one or

more

 toxic substances derived

 in accordance with the

procedures

 in Subpart

 F which,

if

 not exceeded,

 would

107—317

—52—

assure compliance with the narrative toxicity standard

of Section

 302.210.

“Hardness” means a water quality parameter or

characteristic consisting

 of the sum of calcium and

magnesium concentrations expressed

in

 terms of

equivalent milligrams

 per liter

 as calcium carbonate.

Hardness

 is measured

 in accordance with methods

specified

in

 40 CFR 136,

 incorporated

 by reference

 in 35

Ill.

 Adm. Code

 301.106.

“Mixing Zone” means

 a portion of the waters

 of the State

identified

as

a

 region within which mixing

 is allowed

pursuant to Section 302.102(d).

“Total Residual Chlorine”

or

 “TRC” means

 those

substances which include combined and uncombined

 forms

of both chlorine and bromine and which are expressed,

by

convention,

 as an equivalent concentration of molecular

chlorine.

TRC

 is measured

 in acc’ordance with methods

specified

 in 40 CFR 136,

 incorporated by reference

 in 35

Ill.

 Adm. Code

 301.106.

“Toxic Substance” means

 a chemical substance which

causes adverse

 effects

 in humans,

or

 in aquatic or

terrestrial animal

 or plant

 life.

 Toxic substances

include, but are not limited

to

those substances listed

in

 40 CFR 302.4,

 incorporated by reference

 in 35

 Ill.

Adm.

 Code 301.106,

 or any “chemical

 substance”

as

defined by the Illinois Chemical Safety Act

 (Ill.

 Rev.

Stat.

 1987,

 ch. lll~, par.

951

 et seq~j

“ZID”

 or “Zone

of

 Initial Dilution” means

 a portion of

a

mixing

 zone,

 identified pursuant

 to Section 302.102(e),

within which acute toxicity standards need not

 be met.

Section 302.101

 Scope and Applicability

a)

 Par-b B82This Part contains schedules of water quality

standards which are applicable throughout

 the State as

designated

in

 Par-f

35

 111. Adm.

 Code 303.

 Site specific

water quality standards are found with the water use

designations in Pare 35

 Ill.

 Adm.

 Code

 303.

b)

 Subpart

 B contains general use water quality standards

which must be met

 in waters of

 the State

 for which there

is no specific designation (See~4en 35

 Ill.

 Adm. Code

303.201)

c)

 Subpart C contains the public and food processing water

supply standards.

 These are cumulative with Subpart B

and must

 be met by all designated waters

 at the point

at

107—318

—53—

which water

 is drawn for treatment and distribution as

a

potable supply

 or for food processing (See~4on35

 Ill.

Adm.

 Code 303.202).

d)

 Subpart D contains the secondary contact and indigenous

 aquatic

 life standards.

 These standards must

 be met

only by certain waters designated

 in Seet4en

 35 Ill.

Adm.

 Code 303.204 and 303.441.

e)

 Subpart

 E contains the Lake Michigan water quality

standards.

 ‘These are cumulative with the Subpart

 B and

C standards and must

 he met

 by the waters of Lake

Michigan and such other waters as may be designated

in

Par-i

35

 Ill Adm.

 Code 303 (See~4en 35

 111. Adm. Code

303.443)

f)

 Subpart

 F contains the procedures

 for determining each

of the criteria designated

 in Section 302.210.

f~9jUnless the contrary

 is clearly

 indicated,

 all references

to “Parts”

 ~r “Sections” are

to

 Ill.

 Adm.

 Code, Title

35: Environmental Protection.

 For example,

 “Part

 309”

is

 35 Ill. Adm.

 Code

 309,

 and “Section 309.101”

is

35

Ill. Adm. Code

 309.101.

Section 302.102

 Allowed Mixi~, Mixing Zones and ZID5

a)

~n

 the app4ea~4en

 ef th4s

 Ehepthr-7 wWhenever

 a water

quality standard

 is more restrictive

 than

 its’

corresponding effluent standard,

 or where there is

no

correspondi~effluent standard

 s’oecified

at

 35 Ill,

Adm.

 Code 304,

 then an opportunity shall

 be allowed

for

the comp~~ce with

35

 Iii.

 Adm.

 Code 304.105

 by mixture

of an effluent with its receiving waters, ~ovided

the

discharger has made every_effort tocom_l~with the

requirements

of

35

 Ill.

 Adm.

 Code 304.102.

 Water

~a~4ty

 standards mast

 he me~at every pe+nt e~ts4dee?

the m4x4n~rene7

 Phe ~42e

 ef the m4x4n~~ene eannet be

~n4ferm+y

 preser-4bed-~

 ~Phe~evern4n~

 ~r4ne4p+e

 is that

the prepertien e?

 any bedy ef

 warer- er segment theree?

within mi,~im~renes mast be e~+tesma+4 4?

 the water

q~a*4tysr-andar-ds are te have any meaning7

 This

pr-ineiple

 sha++ be applied en

 a ease—by-ease ha~is te

enst~rethat neither- any ind4vid~slse~treener the

ar-agate

ef

sot~rees

shall

eatise

exeess’ive

?enes

to

exeeed the standar-ds~

The

water-

 gttality

standards

 mtist

be

mer-

 in the bti±kef the body ef WStCr-7 and ne

 ‘nedy ef

water- may be

 tised r-eta±lyas

 a mixing rone for

 a single

etttfal+

 or eembinarien ef ~titfa++s-~ Mereevery exeept

as

ether-wise previded

 in this EhapterT no single mixing

~ene

shall

exeeed

the

ar-es

 ef a eirele with

 a raditis of

m

-(-688

feet-)--

Single

setirees

of

effluents

whieh

107—319

—54—

have mere than one outfall shall

 be limited

 to a total

mixing ares no larger- than that allowable

if

 a single

outfall were used--

b)

 ~n determining the size of the mixing zone for any

disehar-ge7 the following must be eonsider-ed--

The

portion, volume and area of any receiving waters within

which mixing

 is allowed pursuant

 to subection

(a)

 shall

be limited by the following:

1)

 The ehar-aeter- of the body of water-TMixing must

be

confined

 in an area

 or volume of the receiving

water

 no larger

 than the area or volume which would

result after

 incorporation of outfall design

measures to attain optimal mixing efficiency

of

effluent and receiving waters.

 Such measures may

include,

 but are not limited

 to, use of diffusers

 and engineered location and configuration of

discharge points.

2)

 the present and antieipated future use of the body

of water-rMixing

 is not allowed

 in waters which

include

 a tributary stream entrance

 if such mixinq

occludes the tributary mouth or otherwise restricts

the movement

 of aquatic

 life into or out of

the

tributary.

3)

 the present and antleipated water- guality of the

body of water7Mixing

 is not allowed

 in waters

adjacent

 to bathing beaches,

 bank fishing areas,

boat ramps

 or dockages

 or any other public access

area.

4)

 the effeet of the diseharge

 on the present and

entleipated future

 water- gua±ity7Mixing is not

allowed

 in waters containing mussel

 beds,

endangered species habitat,

 fish spawning areas,

areas

of

 important aquatic

 life habitat,

 or any

other natural features vital

to

 the well being

of

aquatic

 life

 in such

 a manner

 that the maintenance

of aquatic

 life

 in the body of water

as

 a whole

would

 be adversely affected.

5)

 the dilution rat+o7 andMixing

 is not allowed

in

waters wnich contain intake structures

 of public or

food processing water supplies, points

of

withdrawal

 of water

 for irrigation,

 or watering

areas accessed

 by wild or domestic animals.

6)

 the.narure of the eonrsminant7Mixing must allow

for

a zone of passage

 for aquatic life

 in which water

quality standards are met.

107—320

—55—

7)

 The area and volume

 in which mixing occurs, alone

or

 in combination with other areas and volumes

of

mixing,

 must not intersect any area or volume of

any body of water in such a manner that the

maintenance

 of aquatic life

 in the body of water

as

a whole would be adversely affected.

8)

 The area and volume

 in which mixing occurs,

 alone

or

 in combination with other areas and volumes of

mixing, must

 not contain more than

25

of

the

cross—sectional area or volume

 of flow of

 a stream

except for

 those streams where the dilution

 ratio

is less than

 3:1.

 Mixing

 is not allowed

in

receiving waters which have

 a zero minimum seven

day low flow which occurs once in ten years.

9)

 No mixing

is

 allowed where the water quality

standard for the constituent

 in question

 is already

violated

 in the receiving water.

10)

 No body of water may be ‘used totally

 for mixing of

a single outfall

 or combination of outfalls.

11)

 Single sources of effluents which have more than

one outfall

 shall

 be limited

to

 a total area and

volume of mixing

 no larger than that allowable

 if a

single outfall were used.

12)

 ‘The area and volume

 in which mixing occurs must

be

as small

as

 is practicable under

 the limitations

prescribed

 in this subsection, and

 in no

circumstances may the mixing encompass

 a surface

area

 larger than

 26 acres.

c)

 ~n addition to the abover the mixing zone shall

 be so

designed as to assur-e a reasonable zene of passage

 for-

aquatic life in whieh

 the water quality standards

 ar-a

met7

 The mixing zone shall not intersect any area of

any sueh waters

 in sueh

 a manner that the mainrenanee of

aquatic life in the body of water as

 a whole would

~e

adversely affected7

 nor- shall any mixing zone contain

mere than ~

 of the cross—sectional area or volume of

flow of

 a stream except f~rthose streams where the

dilution ratio

 is less than

 B--l-- All water quality

 standards

 of this

 Part must be met

 at every point

outside

 of the area and volume of

 the receiving water

within which mixing is allowed.

 The acute toxicity

standards

 of Sections

 302.208 and 302.210 must

 he met

within the area and volume within which mixing

is

allowed, except

 as provided in subsection

 (e).

107—321

—56—

d)

 Pursuant

 to the procedures of Section

39

 of the Act and

35

 Ill.

 Adm. Code 309,

 a person may apply to the Agency

to include

 as a condition

 in an NPDES permit formal

definition of the area and volume of

 the waters

 of the

State within which mixing

 is allowed for the NPDES

discharge

 in question.

 Such formally defined area and

volume of allowed mixing shall constitute

a

 “mixing

zone”

for

 the purposes of

35

 Ill.

 Adm.

 Code:

 Subtitle

C.

 Upon proof

 by the applicant

 that

 a proposed mixing

‘zone conforms with the requirements

 of Section

 39 of

the

Act,

 this Section and any additional

 limitations as may

be

 imposed by

 the Clean Water Act

 (CWA)

 (33 U.S.C

1251

et seq.),

 the Act or Board regulations,

 the Agency

shall, pursuant

 to Section

 39(b)

of

 the Act,

 include

within the NPDES permit

 a condition defining the mixing

zone.

e)

 Pursuant

 to the procedures

 of Section

39

 of the Act and

35 Ill.

 Adm.

 Code

 309,

 a person may apply

 to the Agency

to include

as

 a condition in an NPDES permit

 a ZID as

a

component portion of

 a mixing zone.

 Such ZID shall,

at

a minimum,

 be limited to waters within which effluent

dispersion

 is immediate and

 rapid.

 For the purposes cf

this subsection,’ “immediate” dispersion means an

effluent’s merging with receiving waters without delay

in time after

 its discha~g~and within close proximity

of

 the end of

 the discharge ,p4pe,

 so as

 to minimize the

length of exposure time of aquatic

 life to undiluted

effluent,

 and “rapid”

 dispersion means an effluent’s

merging with receiving waters

 so as

 to minimize the

length of

 exposure time of aquatic

 life to undiluted

effluent.

 Upon proof

 by the applicant

 that

 a proposed

ZID conforms with the requirements

 of Section

 39 of

the

Act and this Section,

 the Agency shall, pursuant

to

Section

 39(b)

 of the Act,

 include within the NPDES

permit a condition defining the ZID.

f)

 Pursuant

 to Section

39

 of the Act and 35

 Ill.

 Adm.

 Code

309.103,

 an applicant

for

 an NPDES permit shall submit

data

 to allow the Agency

 to determine

 that

 the nature

of

any mixing

 zone or mixing zone

 in combination with

 a ZID

conforms with the requirements of Section

39

of

 the Act

and

 ‘of this Section.

 A permittee may appeal Agency

determinations concerning

 a mixing zone or ZID pursuant

to the procedures

 of Section

 40 of the Act and

35

 Ill.

Adm.

 Code

 309.181.

~j

 Where

 a mixing zone

 is defined in an NPDES permit,

the

waters within that mixing zone,

for

 the duration

of

 that

NPDES permit,

 shall constitute

 the sole waters within

which mixing

 is allowed

 for the permitted discharge.

It

shall

not

be

 a defense

 in any action brought pursuant

to

107—322

—57—

35

 Ill.

 Adm. Code

 304.105 that the area and volume of

waters within which mixing may be allowed pursuant

to

subsection

(b)

 is less restrictive than the area

or

volume or waters encompassed in the mixing

 zone.

h)

 Where

 a mixing zone

 is explicitly denied

in

 a NPDES

permit,

 no waters may be used for mixing by the

discharge

 to which

 the NPDES permit applies, all other

provisions

 of this Section notwithstanding.

i)

 Where an NPDES permit

 is silent

 on the matter of

a

mixing zone,

 or where no NPDES permit

is

 in effect,

the

burden of proof shall be

 on the discharger

to

demonstrate compliance with this Section in any action

brought pursuant

to

35

 Ill.

 Adm. Code

 304.105.

Section 302.103

 Stream Flows

Except as otherwise provided

 in this Chapter

 with respect

to

temperature,

 the water quality standards

 in this Part shall

 apply

at all times except during periods when flows

 are less than the

average minimum seven day low flow which occurs once

 in ten

years.

SUBPART

B:

 GENERAL USE WATER QUALITY STANDARDS

Section 302.203

 ~nnatur-al SludgeOffensive Conditions

Waters of the State shall

 be free from unnatural sludge or bottom

deposits,

 floating debris,

 visible oil,

 odor,

 unnatural plant or

algal growth,

 unnatural color or turbidity of

 other

 than natural

origin.7or matter of ether

 than natural origin in concentrations

or- combinations toxic

 or- harmful

 to human7 plant

 or aquatic

l+fe--

 The allowed mixing provisions

 of Section 302.102 shall

not

be used

 to comply with the provisions of this Section.

Section 302.208

 Numeric Standards

 for Chemical Constituents

Phe following levels

 of chemical constituents shall not be

exeeeded~-

SP8REP

 EeN?ENPR~P5eN

?~NSP+PHEN~

 HBMBER

 tmg~h-~

~rsenie

 (-tota+~-

 8+892

Barium

 -tota+~

 8l98~

 5-~8

Boron

 ~total-)-

 8+822

Eadmium

 -total~

 9+82~

0795

Ehlor-ide

08949

5997

ebremium ~-tota±hexavalent)-

 8lB~2

8705

Chromium

 -(-total trivalent-)-

 8±83-3

+78

Copper-

-(-total-)-

 9±942

8782

107—32 3

—58—

Cyanide

Fluoride

±r-on-(-total-)-

bead ‘(-tota+~

Manganese

‘(-total)-

Mer-eur-y

 -(-total-)-

Nickel

 -(-total-)-

Phenols

Selenium

 -(-total-)-

Silver-

 ‘(-total-)-

Sulfate

~otal Dissolved Solids

sine

O8~28

8995+

9+845

0+95+

8±855

~+98O

9+86~

9±8~

88945

~83e9

9+892

87825

+74

±79

97+

±79

979885

+78

97±

±78

87885

588-7

+9087

±79

a)

 The acute standard

 (AS)

for

 the chemical constituents

listed in subsection

(d)

 shall

 not be exceeded at any

time except as provided

 in subsection

(c)

b)

 The chronic standard

 (CS)

 for the chemical constitutents

listed in subsection

(d)

 shall not

 be exceeded by the

arithmetic average

 of at least

 four consecutive samples

collected over any period of at

 least

 four days,

 except

as

provided

in

 subsection

 (c).

 The samples used

to

demonstrate compliance

or

 lack

 of compliance with

 a CS

must

 be collected

 in a manner which assures

 an average

representative

of

 the sampling period.

c)

 In waters where mixing

 is allowed pursuant

 to Section

302.102,

 the following apply:

1)

 The AS shall

 not be

exceeded

in

any

waters

except

for those waters for which

 the Agency has approved

a ZID pursuant

 to Section 302.102

2)

 The CS shall

not

 be exceeded outside of waters

in

which mixing

 is allowed pursuant to Section

302.102.

d)

STORET

AS

CS

Constituent

 Number

 (ug/L)

 (ug/L)

Cadmium

(total)

01027

 expA

+

 Bln(H),

 expA

+

 Bln(H),

but not

 to exceed

 where A

=

 —3.490

50 ug/L,

 where

 and B

=

 0.7852

A

=

 —2.918 and

B

=

 1.128

Arsenic

(total)

01002

~_~_c~

107—324

—59—

Chromium

01032

(total

hexavalent)

Chromium

(total)

trivalent)

01033

 expA

+

 Bln(H),

where A

=

3.688

and

B

=

0.8190

expEA

+

 Bln(H),

where A

=

 1.561

and B

=

 0.8190

Copper

(total)

01042

 expA

+

 Bln(H),

where A

=

 —1.464

and B

=

 0.9422

expA

+

 Bln(H),

where A

 —1.465

and B

=

 0.8545

Lead

(total)

01051

 expA

+

 Bln(H),

but not

 to exceed

100

 ug,’L,

 where

A

=

 —1.460 and

B

=

 1.273

Not Applied

II

where:

 ug/L

=

 microgram per liter,

expx

=

 base of natural logarithms

raised

 to the x-power,

and

ln(H)

 natural

 logarithm of Hardness

(STORET 00900).

e)

 Concentrations

 of the following chemical constituents

shall not

 be exceeded except

in

 water’s for which mixing

is allowed pursuant

 to Section 302.102.

STORET

Constituent

 Units

 Number

 Standard

16

11

Cyanide

00718

~—~-

Mercury

71900

0.5

 Not Applied

TRC

50060

19

Barium (total)

Boron

 (total)

Chloride

 (total)

mg,”L

mg/L

mg/L

rnq/L

01007

01022

00940

00951

5.0

1.0

500.

1.4

 Fluoride

Manganese

 (total)

 mg/L

mg/L

mg/L

mg/~i

ug/L

mg/L

01055

01067

32730

01147

01077

00945

1.0

1.0

0.1

1.0

5.0

500.

Nickel

 (total)

Phenols

Selenium (total)

Silver

 (total)

Sulfate

107—325

—60—

Total Dissolved

 mg/L

70300

 1000.

Solids

Zinc

 (total)

 mg/L

01092

1.0

where:

 mg/L

=

 milligram per liter and

ug/L

 microgram per liter

Section 302.210

 Substances Poxie

 to Aquatic bife Other

 Toxic

Substances

Any substance toxic to aquatic

 life shall

 not exceed ene—tenth

of

the 96—hour- median tolerance limit

 ‘(-96—hr--

 Pbm-)-

 for- native fish

or essential fish food organismar except for

Waters of the State shall be free from any substances

or

combination of

 substances in concentrations

 toxic

 or harmful

to

human health,

or

 to animal,

 plant or aquatic

 life.

 Individual

chemical substances or parameters

 for which numeric standards are

specified

 in this Subpart are not subject

 to this Section.

a)

 Any substance or combination

 of substances shall

be

deemed

 to be toxic

 or harmful

 to aquatic

 life

 if present

in concentrations that exceed the following:

1)

 An Acute Aquatic Toxicity Criterion

 (AATC) validly

derived and correctly applied pursuant

to

procedures

 set forth

 in Sections 302.612 through

302.618

or

 in Section 302.621;

or

2)

 A Chronic Aquatic Toxicity Criterion

 (CATC)

 validly

derived and correctly applied pursuant

to

procedures

 set forth

 in Sections 302.627

or

302.630.

b)

 Any substance or combination of substances shall

be

-

deemed

 to be toxic or harmful

 to wild or domestic animal

life

 if present

 in concentrations

 that exceed any Wild

and Domestic Animal Protection Criterion

 (WDAPC)

 validly

derived and correctly applied pursuant to Section

302.633.

c)

 Any substance or combination of substances shall

be

deemed

 to be

 toxic or harmful

 to human health

 if present

in concentrations

 that exceed criteria,

 validly derived

and correctly applied,

 based

 on either of

 the following:

1)

 Disease or

 functional

 impairment due

to

a

physiological mechanism for which there

is

a

threshold dose below which no damage occurs

calculated pursuant

 to Sections 302.642 through

302.648

 (Human Threshold Criterion);

or

107—326

—61—

2)

 Disease or functional

 impairment due

 to a

physiological mechanism for which any dose may

cause

 some risk of damage calculated pursuant

to

Sections 302.651

 through 302.658

 (Human

Nonthreshold Criterion).

d)

 The most stringent

 criterion of subsections

 (a),

 (b),

and (c)

 snall apply

 at all points outside of any waters

within which mixing

is

 allowed pursuant

 to Section

302.102.

 In addition,

 the AATC derived pursuant

to

subsection

 (a)(l)

 shall apply

 in all waters e::cept

 that

it shall

 not apply within

 a ZID that

 is prescribed

in

accordance with Section 302.102.

e)

 The procedures

 of Subpart

 F set

 forth minimum data

requirements, appropriate

 test protocols and data

assessment met~hodsfor establishing criteria pursuant

to

subsections

 (a),

 (b), and

 (c).

 No other procedures may

be used

 to establish such criteria unless approved

by

the Board

in

 a rulemaking

 or adjusted standards

proceeding pursuant

 to Title VII of the Act.

The

validity and applicability of the Subpart

 F procedures

may not

 be challenged

 in any proceeding brought pursuant

to Titles VIII or X of the Act,

 although the validity

and correctness of application of the numeric criteria

derived pursuant

 to Subpart

 F may

 be challenged

 in such

proceedings pursuant

 to subsection

 (f).

f)

1)

 A permittee may challenge the validity and

correctness

 of application of

 a criterion derived

by the Agency pursuant

 to this Section only at

the

time such criterion

is

 first applied

 in an NPDES

permit pursuant.to

35

 Ill. Adm.

 Code 309.152

or

in

an action pursuant

 to Title

 VII,I of

 the Act

for

violation of the toxicity water quality standard.

Failure of a person

 to challenge the validity of

a

criterion at the time

 of its first application

shall constitute a waiver

 of such challenge

 in any

subsequent proceeding involving application of

the

criterion

 to that person.

2)

 Consistent

 with subsection

 (f)(1),

if

 a criterion

is included as,

or

 is used

 to derive,

 a condition

of an NPDES discharge permit,

 a permittee may

challenge the criterion

 in a permit appeal pursuant

to Section 40

 of the Act and

35

 Ill.

 Adm.

 Code

309.181.

 In any such action,

 the Agency shall

include

 in the record all information upon which

it

has_relied_in developing and applying the

criterion,

 whether such information was developed

by the Agency or submitted by the Petitioner.

THE

107--327

—62—

BURDEN OF PROOF SHALL BE ON THE PETITIONER TO

DEMONSTRATE THAT THE CRITERION-BASED CONDITION

IS

NOT NECESSARY TO ACCOMPLISH THE PURPOSES OF

SUBSECTION

(a)

 (Section 40(a)(l)

 of the Act),

but

there is

 no presumption

 in favor

 of the general

validity and correctness of

 the application of

the

criterion as reflected

 in the challenged condition.

3)

 Consistent with subsection

 (f)(l),

 in an action

where alleged violation of

 the toxicity water

quality standard

 is based on alleged excursion of a

criterion,

 the person bringing such action shall

have the burdens

 of going forward with proof and of

persuasion

 regarding the general validity and

correctness of application

 of the criterion.

9j

 Subsections

(a)

 through

(e)

 do not apply to USEPA

registered pesticides approved for aquatic application

and applied pursuant

 to the following conditions:

al)

 Application shall

 be made

 in strict accordance with

 label directions;

b2)

 Applicator

 shall

 be properly certified under the

provisions of

 the Federal Insecticide,

 Fungicide,

and Rodenticide Act

 (7 U.S.C.

135

et

 seq.

 (1972));

c3)

 Applications

 of aquatic pesticides must

be

in

accordance with the laws,

 regulations and

guidelines

 of all State and federal agencies

authorized

 by law

 to regulate,

 use or supervise

pesticide applications, among which are

 is included

the Illinois Department of Agriculture and the

Illinois Department of Public Health pursuant to

±1±7Rev~-Stat

 19~9ch--

5-y

pars

 256 through

26~I

and the Department

 of Energy and Natural Resources

pursuant

 to Section

 3 of

 “AN ACT

 in relation

to

natural resources,

 research,

 data collection and

environmental studies”,

 Ill.

 Rev.

 Stat.

 19~987 ch.

96

 1/2,

 par.

 7403.

d4)

 No aquatic pesticide

 shall be applied

 to waters

affecting public or

 food processing water supplies

unless

 a permit

 to apply

 the pesticide has been

obtained from the Agency.

 All permits shall be

 issued so as

not

 to cause a violation

 of the Act

or

of any of the Board’s

 rules or

 regulations.

 To aid

applicators

 in determining

 their responsibilities

under

 this subsection,

 a list

 of waters affecting

public water supplies will be published and

maintained by the Agency’s Division of Public Water

Supplies.

07—328

—63—

SUBPART

F:

 PROCEDURES FOR DETERMINING

WATER QUALITY CRITERIA

Section 302.601

 Scope and Applicability

This Subpart contains

 the procedures

 for determining the water

quality c’riteria set forth

 in Section 302.210(a),

 (b) and

 (c).

Section 302.603

 Definitions

As used

 in this Subpart,

 the following terms shall have the

meanings specified.

“Bioconcentration” means

 an increase

 in concentration

of

a chemical and its metabolites

in

 an organism

(or

specified tissues thereof) relative

 to the concentration

of the chemical in the ambient water acquired through

contact with the water

 alone.

“Carcinogen” means

 a chemical which causes an increased

incidence of benign or malignant neoplasms,

or

a

statistically significant decrease

 in latency period

between exposure and onset

 of neoplasms

 in at least one

mammalian species or man through epidemiological

or

clinical studies.

“EC—SO” means

 the concentration of

 a substance or

effluent which causes

 a given effect

 to 50

 of the

exposed organisms

in

 a given time period.

“LC—SO” means the concentration of

 a toxic substance

or

effluent which

 is lethal

 to 50

of

 the exposed organisms

in a given

 time period.

“LOAEL”

or

 “Lowest Observable Adverse Effect Level”

means

 the lowest tested concentration

of

 a chemical or

substance which produces

 a statistically significant

increase in frequency or severity of

 non-overt

 adverse

effects between the exposed population and

its

appropriate

 control.

“MATC” or

 “Maximum Acceotable Toxicant Concentration”

means the value obtained by calculating the geometric

mean of the lower and upDer chronic limits from

a

chronic

 test.

 A lower

 chronic

 limit

 is the highest

tested concentration which did not cause the occurrence

of

 a specified adverse

 effect.

 An upper chronic

 limit

is the lowest tested concentration which did cause the

 occurrence of

 a specified adverse effect and above which

all tested concentrations caused such an occurrence.

107—329

—64—

“NOAEL”

or

 “No Observable Adverse Effect Level” means

the highest tested concentration

 of a chemical or

substance which does not produce

 a statistically

significant increase

 in frequency or severity of non—

overt adverse effects between the exposed population

and

its appropriate control.

“Resident or

 Indigenous Species” means species which

currently live a substantial portion

 of their

 lifecycle

or

 reproduce

in

 a given body

 of water,

 or which are

native species whose historical

 range includes

 a given

body

 of water.

Section 302.604

 Mathematical Abbreviations

The following mathematical abbreviations have been used

 in this

Subpart:

exp x

 base of

 the natural logarithm,

e,

 raised

 to x:

power

in

x

 natural logarithm of

x

log

x

 logarithm to the base 10

of

x

A**E

 A raised to the B—power

SUM(x)

 summation of the values of

x

Section 302.606

 Data Requirements

The Agency shall

 review,

 for validity,

 applicability and

completeness, data used in calculating criteria.

 To the extent

available,

and

 to the extent not otherwise specified,

 testing

procedures,

 selection of test species and other aspects of data

acquisition must

 be according

 to methods published by USEPA or

nationally recognized standards organizations,

 including but not

limited

 to those methods found

 in “Standard Methods”,

incorporated

 by reference

in

35

 Ill.

 Adm. Code

 301.106,

or

approved

 by the American Society

 for Testing and Materials

as

incorporated

 by reference

 in 35

 Ill.

 Adm.

 Code 301.106.

Section

 302.612

 Determining

 the Acute Aquatic Toxicity

Criterion for

 an Individual

 Substance

—

General Procedures

a)

 A chemical specific Acute Aquatic Toxicity Criterion

(AATC)

 is calculated using procedures specified

in

Sections 302.615 and 302.681

 if acute toxicity data are

available for

at

 least five

 (5) resident

or

 indigenous

species from five

 (5) different North American genera

of

freshwater organisms including representatives

of

the

following taxa:

1)

 Representatives of two families

 in the Class

Osteichthyes

 (Bony Fishes).

—65—

2)

 The family Daphnidae.

3)

 A benthic aquatic macroinvertebrate.

4)

 A vascular aquatic plant

 or a third family in the

Phylum Chordata which may

 be from the Class

Osteichthyes.

b)

 If data are not available

 for resident or

 indigenous

species, data for non—resident

 species may

 be used

if

the non—resident species

 is of the same family

 or genus

and has a similar habitat and environmental tolerance.

The procedures of Section 302.615 must be used

 to obtain

an AATC for individual substances whose toxicity

is

unaffected

 by ambient water quality characteristics.

The procedures of Section

 302.618 must be used

 if the

toxicity of

 a substance

 is dependent upon some other

water quality characteristic.

c)

 If data are not available

 that meet

 the requirements of

subsection

 (a), an AATC

 is calculated

 by obtaining

at

least one EC—50

 or LC-50 value from both

 a daphnid

species and either fathead minnow or bluegill.

 If there

are data available

 for any other North American

 freshwater

 species,

 they must also be included.

 An AATC

is calculated by dividing the lowest Species Mean Acute

Value

 (SMAV),

 as determined according

 to Section

302.615,

by

10.

Section 302.615

 Determining

 the Acute Aquatic Toxicity

Criterion

—

 Toxicity Independent

 of Water

Chemistry

If

 the acute toxicity of the chemical has not been shown

to

be

related

to

 a water quality characteristic,

 including

 but not

limited

 to, hardness,

pH,

 temperature,

 etc.,

 the AATC

is

calculated

 by using

 the procedures below.

a)

 For each species

 for which more

 than one acute

 value

is

available,

 the Species Mean ‘Acute Value

 (SMAV)

is

calculated as the geometric mean of the acute values

from all tests.

b)

 For each genus

 for which one or more SMAVs are

available,

 the Genus Mean Acute Value

 (GMAV)

is

calculated as the geometric mean of

 the SMAVs available

for the genus.

c)

 The GMAVs are ordered from high

 to low.

107—331

—66—

d)

 Ranks

 (R) are assigned to the GMAV5

 from “1”

 for the

lowest to

 “N” for the highest.

 If two or more GMAV5 are

identical,

 successive

 ranks are arbitrarily assigned.

e)

 The cumulative probability,

P,

 is calculated

 for each

GMAV as R/(N

+

1).

f)

 The GMAVs

 to be used

 in the calculations

 of subsection

(g)

 must

 be those with cumulative probabilities closest

to

 0.05.

If

 there are less than

 59 GMAV5

 in the total

data

 set,

 the values utilized must be the lowest

obtained through the ranking procedures

 of subsections

(.c)

and

 (d).

 “T”

 is the number

 of GMAV’s which are to

be used

 in the calculations of subsection

 (g).

T

is

equal

to

 4 when

 the data set includes at

 least one

representative from each of the five taxa

 in Section

302.612 and a representative from each of

 the three taxa

listed below.

 T is equal

to

 3 when the data

 includes

at

least one representative from each

of

 the five taxa

in

Section 302.612 and from one or

 two of

 the taxa listed

below.

 T is equal to

 2 when

 the data

 set meets

the

minimum requirements

of

 Section 302.612 but does

not

include representatives from any

 of the three

 taxa

listed below.

 When toxicity data on any

 of the three

taxa listed below are available,

 they must be used along

with the minimum data required pursuant

 to Section

302.612.

I)

 A benthic crustacean,

 unless such was used pursuant

to Section 302.6l2(a)(3),

 in which case an

 insect

must be utilized.

2)

 A member of

 a phylum not used in subsections

 (a),

(b)

or

 f(l).

3)

 An insect from an order not already

 represented.

9J

 Using

 the GMAV5 and T—value identified pursuant

to

subsection

 (f) and the

 Ps calculated pursuant

to

subsection

 (e),

 the Final Acute Value

 (FAV)

 and the AATC

are calculated as:

FAV

=

 exp(A) and

AATC

=

 FAV/2

Where:

A

=

L

+

 0.2236

5;

L

 LSUM(ln GMAV)

—

 S(SUM(P**0~))/T;

and

107-332

—67—

S

=

 SUM((ln

 GMAV)**2)

—

 ((SUM(ln

GMAV))**2)/T/SUM(P)

—

((SUM(P**0.5))**2)/T**0.5.

h)

If

 a resident or

 indigenous

 species, whose presence

is

necessary

 to sustain commercial

or

 recreational

activities,

 or prevent disruptions of

 the waterbody’s

ecosystem,

 including but not limited to loss

 of species

diversity or

 a shift to

 a biotic community dominated by

pollution—tolerant

 species, will not

 be protected

 by the

calculated FAV,

 then the EC—50

 or LC—50

for

 that

 species

is used as the FAV.

Section

 302.618

 Determining

 the Acute Aquatic Toxicity

Criterion

—

 Toxicity Dependent on Water

Chemistry

If data are available

 to show that

 a relationship exists between

a water

 quality characteristic

 (WQC)

 and acute toxicity

 to two or

more s~ecies, an Acute Aquatic Toxicity Criterion

 (AATC) shall

be

calculated.

 The best documented

 relationship

 is that between the

water quality characteristic,

 hardness and acute toxicity of

metas.

 Although this relationship between hardness and acute

toxicity

is

 typically non—linear,

 it can

be

 linearized

by

a

logarithmic

 transformation

 (i.e.

 for any variable,

K,

 f(K)

=

logarithm of

K)

of

 the variables and plotting the logarithm of

hardness against the logarithm of acute toxicity.

 Similarly,

relationships between acute toxicity and other water quality

characteristics,

 such as pH or temperature,

 may require

a

transformation,

 including

 no transformation

 (i.e.

 for any

variable,

K,

 f(K)

=

K)

 for one

 or both variables

 to obtain least

squares linear regression

 of the tranformed acute toxicity values

on the transformed values

 of the water quality characteristic.

An A~’TC is calculated

 using the following procedures.

a)

 For each species

 for which acute toxicity values are

available at two or more different

 values of the water

quality characteristic,

a

 linear least

 squares

regression of the transformed acute

 toxicity

 (TAT)

values on the transformed water quality characteristic

(TWQC) values is performed to obtain the slope of the

line describing

 the relationship.

b)

 Each of the slopes determined pursuant to subsection

(a)

is evaluated as to whether

or

not

it

 is statistically

valid,

 taking into account

the

 range and number

of

tested values of

 the water quality characteristic and

the degree of agreement

 within and between species.

If

slopes are not available

for

at

 least one fish and one

invertebrate species,

or

if

 the available slopes are too

dissimilar,

or

if

 too few data are available

 to define

the relationship between acute toxicity and the water

107—333

—68—

quality characteristic,

 then the AATC must be calculated

using

 the procedures

 in Section 302.615.

c)

 Normalize

 the TAT values for each species

 by subtracting

W,

 the arithmetic mean

of

 the TAT values of a species

from each of the TAT values used

in

 the determination of

the mean,

 such that the arithmetic mean of

the

normalized TAT values for each species

 individually

or

for any combination of species

is

 zero

 (0.0).

d)

 Normalize the TWQC values

 for each species using

X,

the

arithmetic mean of the TWQC values

 of a species,

 in the

same manner

as

 in subection

 (c).

e)

 Group all the normalized data by

 treating them as

if

they were from

 a single species and perform a least

squares linear regression

 of all the normalized TAT

values on the corresponding normalized TWQC values

to

obtain the pooled acute slope,

V.

f)

 For each species, the graphical

 intercept

 representing

the spec’ies TAT intercept,

 f(Y),

 at a specific selected

value,

Z,

of

 the WQC

 is calculated

 using the equation:

f(Y)

=

W

—

V(X

—

 g(Z))

Where:

f()

 is the transformation used to convert

acute toxicity values to TAT values;

Y

 is the species acute toxicity

 intercept or

species acute

 intercept;

W

 is the arithmetic mean

of

 the TAT values as

specified

 in subsection

 (c);

V

 is the pooled acute slope as specified

in

subsection

 (e);

X

is

 the arithmetic mean

 of the TWQC values as

specified in subsection

 (d);

go

is

 the transformation used

 to convert

the

WQC values

 to TWQC values; and

Z

is

 a selected value

 of the WQC.

For each species, determine

 the species acute intercept,

Y,

 by carrying out an

 inverse transformation of

the

species

 TAT value, f(Y)~

For

 exa1L~ple, in

 the case

of

a

logarithmic transformation,

Y

 antilogarithm of

 (f(Y))

:i

07—334

—69—

or

 in the case where no transformation

 is used,

Y

=

f(Y)

h)

 The Final Acute Intercept

 (FAI)

 is derived by using the

species acute intercepts, obtained from subsection

 (g),

in accordance with the procedures described

 in Section

302.615(b)

 through

 (g),

 with the word “value”

 replaced

by the word “intercept”.

 Note

 that

 in this procedure

geometric means and natural

 logarithms are always used.

i)

 The Aquatic Acute Intercept

 (AAI)

 is obtained by

dividing

 the FAI by

 two.

jj

 The AATC at any value of

 the WQC, denoted by WQCx,

is

calculated using

 the terms defined in subsection

 (f) and

the equation:

AATC

=

 expV(g(WQCx)

—

 g(Z))

+

 f(AAI).

Section 302.621

 Determining the Acute Aquatic Toxicity

Criterion

—

 Procedure for Combinations

of

Substances

An AATC for any combination of substances

 (including effluent

mixtures) must

 be determined by the following toxicity testing

procedures:

a)

 Not more than 50

of

 test organisms from the most

sensitive species tested may exhibit mortality

or

immobility after a 48—hour

 test for invertebrate

 or a

96—hour

 test for fishes.

b)

 Three resident or

 indigenous species of ecologically

diverse

 taxa must be tested initially.

 If resident

or

indigenous

 species are not available for testing, non-

resident species may

 be used

 if the non—resident species

is of the same family or genus and has a similar habitat

and environmental tolerance.

Section 302.627

 Determining the Chronic Aquatic Toxicity

Criterion

 for an Individual

 Substance

—

General Procedures

a)

 A chemical-specific Chronic Aquatic Toxicity Criterion

(CATC)

 is calculated using procedures specified

in

subsection

 (b) when chronic

 toxicity data are available

for

 at least five species

 from five different

 North

American genera of

 freshwater organisms,

 including

representatives from the following taxa:

1)

 Representatives

of

 two families

 in the Class

Osteichthyes

 (Bony Fishes).

107—335

—70—

2)

 The family Daphnidae.

3)

 A benthic aquatic macroinvertebrate.

4)

 An alga

 (96—hour

 test)

or

 a vascular aquatic plant.

b)

 A CATC is derived

 in the same manner

as

 the FAV

in

Sections 302.615

or

 302.618

by

 substituting CATC

 for FAV

or

 FAI,

 chronic

 for acute, MATC for LC-50,

 SMCV

 (Species

Mean Chronic Value)

 for SMAV,

 and GMCV

 (Genus Mean

Chronic Value)

 for GMAV.

c)

 If data are not available to meet the requirements

of

subsection

 (a),

 a CATC

 is calculated

 by dividing the FAV

by

 the highest acute—chronic ratio obtained from at

least one fish and one invertebrate

 species.

The

acute—chronic ratio

for

 a species equals

 the acute

toxicity concentration from data considered

 under

 Sections 302.612 through 302.618, divided

by

 the chronic

toxicity concentration from data calculated

 under

subsections

 (a) and

 (b) subject

 to the following

conditions:

1)

 If the toxicity of a substance

 is related

 to any

water quality characteristic

 (WQC),

the

acute—chronic

 ratio must

 be based on acute and

chronic toxicity data obtained from organisms

exposed

 to test water with WQC values

 that are

representative

 of the WQC values of the waterbody

under consideration.

 Preference under

 this

subsection must

 be given

 to data from acute and

chronic tests done

 by the same author

or

 in the

same reference

 in order

 to increase the likelihood

of comparable test conditions.

2)

 If the toxicity of

 a substance

 is unrelated

to

water quality parameters,

 the acute—chronic ratio

may be derived from any acute and chronic

 test on

a

species regardless

of

 the similarity

 in values of

those water quality Darameters.

 Preference

 under

this subsection must

 be given

 to data from acute

and chronic tests done on

 the same organisms

or

their descendants.

3)

 If there

 is more than one acute—chronic ratio

for

a

species,

 a geometric mean of

 the ratio

is

calculated,

 corrected for the relationship of

toxicity

 to water quality parameters.

4)

 If the acute and chronic toxicity data

 indicate

that the acute—chronic ratio varies with changes

in

107—336

—71—

water quality parameters,

 the acute—chronic ratio

used over specified values of

 the water quality

parameters must be based

 on the ratios

 at water

quality parameter values closest

 to those

specified.

5)

 If acute and chronic toxicity data are unavailable

to determine an acute—chronic ratio for

 at least

two North American freshwater species,

 a ratio of

25 shall be used.

d)

If

 a resident or

 indigenous species whose presence is

necessary

 to sustain commercial

 or recreational

activities,

 or prevent disruptions

 of the waterbody’s

ecosystem,

 including but not limited

 to loss

 of species

diversity or a shift

to

 a biotic community dominated by

pollution—tolerant species,

 will

 not be protected

by

the

calcalated

 CATC,

 then the MATC for

 that species

 is used

as the CATC.

Section 302.630

 Determining the Chronic Aquatic Toxicity

Criterion

—

 Procedur~ for Combinations

of

Substances

A CATC

 for any combination of substances

 (including effluent

mixtures) may

 be determined

by

 toxicity

 testing procedures

pursuant to the following:

a)

 No combination of substances may exceed concentrations

g~ater than

 a NOAEL as determined for the most

sensitive of the species tested.

b)

 Three resident

 or indigenous species of

 ecologically

diverse taxa must be tested initially.

 If resident

or

indigenous

 species are not available for testing, non-

resident species may be used

 if the non—resident

 species

is of

 the same family or genus and has a

 similar habitat

and environmental tolerance.

Section 302.633

 The Wild and Domestic Animal Protection

Criterion

The Wild and Domestic Animal Protection Criterion

 (WDAPC)

is

the

concentration of

 a substance which

 if not exceeded protects

Illinois wild and domestic animals from adverse effects,

 such as

functional

 impairment

 or pathological

 lesions,

 resulting from

ingestion

 of surface waters

of

 the State and from ingestion

of

aquatic organisms taken from surface waters

of

 the State.

a)

 For those substances

 for which

 a NOAEL has been derived

from studies of mammalian

 or avian species exposed to

the substance via oral

 routes including gavage,

the

107—337

—72—

lowest NOAEL among species must

 be used

 in calculating

the WDAPC.

 Additional considerations

in

 selecting NOAEL

include:

1)

 If the NOAEL

 is given

 in milligrams of

 toxicant per

liter

 of water consumed

 (mg/L),

 prior to

calculating the WDAPC,

 the NOAEL must be multiplied

by the daily average volume

of

 water consumed by

the test animals

in

 liters per day

 (L/d)

and

divided by

 the average weight

 of the

 test animals

in kilograms

 (kg).

2)

 If the NOAEL

 is given

 in milligrams

of

 toxicant per

kilogram of food consumed

 (mg/kg), prior

to

calculating the WDAPC,

 the NOAEL must be multiplied

by the average amount

of

 food in kilograms consumed

daily by the test animals

 (kg/’d)

 and divided

 by the

average weight of the test animals

 in kilograms

(kg).

3)

 If the animals

 used

 in a study were not exposed to

the t’oxicant each day

 of the

 test period,

 the NOAEL

must be multiplied

 by the ratio of days

 of exposure

to the total days

 in the test period.

4)

 If more than one NOAEL

 is available for the same

animal

 species,

 the geometric mean

 of the NOAELs

must

 be used

 to calculate the WDAPC.

b)

 For those substances

 for which a NOAEL

 is not available

but the lowest observed adverse effect level

 (LOAEL) has

been derived from studies

 of animal species exposed to

the substance via oral routes including gavage,

one—tenth of the LOAEL shall

 be substituted for

the

NOAEL.

c)

 The LOAEL must be selected in the same manner as that

specified

 for the NCAEL

 in subsection

 (a).

d)

 The WDAPC, measured

 in milligrams per liter

 (mg/L),

is

calculated according

to

 the equation:

WDAPC

=

0.1

 NOAEL

 x Wt/W

+

(F

 x BCF)

Where:

NOAEL is derived from mammalian

 or avian

studies

 as specified

 in subsection

 (a) and

(b),

and

 is measured

 in units

 of milligrams

of

substance per kilogram of body weight per day

(mg/kg—d)

107—338

—73—

Wt

 Average weight

 in kilograms

 (kg)

 of the

test animals;

W

=

 Average daily volume of water

 in liters

consumed per day (L/d)

 by the test animals;

F

=

 Average daily amount

 of food consumed by

the test animals in kilograms

 (kg/d);

BCF

=

 Aquatic life Bioconcentration Factor

with units of liter per kilogram

 (L/kg),

as

derived

 in Sections 302.660 through 302.666

and

The

 0.1 represents an uncertainty factor to

account

 for species variability.

e)

 If no studies pertaining

 to the toxic substance

in

question can be found

 ny the Agency,

 no criterion can be

determined.

Section 302.642

 The Human Threshold Criterion

The Human Threshold Criterion

 (HTC)

of

a

 substance

 is that

concentration’or

 level

of

 a substance at which humans are

protected from adverse effects resulting from incidental exposure

to,

 or ingestion of, surface waters of

 the State and from

ingestion of aquatic organisms taken from surface waters of

the

State.

 HTC5 are derived

 for those toxic substances

 for which

there exists a threshold dosage or concentration below which

no

adverse effect

 or response

is

 likely to occur.

Section 302.645

 Determining the Acceptable Daily Intake

The Acceptable Daily Intake

 (ADI)

 is the maximum amount of

a

substance which,

 if ingested daily

 for a lifetime,

 results

 in no

adverse effects to humans.

 Subsections

 (a) through

(e)

 list,

in

the order of preference, methods

 for determining the acceptable

daily

 intake.

a)

 The lowest

of

 the following ADI values:

1)

For

 those substances which are listed with

a

maximum contaminant

 level

in

 40 C?R 141,

incorporated by reference

in

35

 ll. Adm.

 Code

301.106, or

in

35

 Ill.

 Adm.

 Code 611,

 the ADI

equals the product

 of multiplying the maximum

contaminant level given

 in milligrams per liter

(mg/L)

by

2

 liters per day

 (L/d).

2)

 For those substances which are listed with a

107—339

—74—

maximum allowable concentration standard in

35

 Ill.

Adm.

 Code:

 Subtitle F,

 the acceptable daily intake

equals the product of multiplying the public health

enforcement standard given

 in milligrams per liter

(mg,/L)

by

 2 liters per day

 (L/d).

b)

For

 those substances for which a

 no observed adverse

effect

 level

 (NOAEL—H)

 for humans exposed to the

substance

 in drinking water

 has been derived,

the

acceptable daily intake equals the product

of

multiplying one—tenth of the NOAEL-H given

 in milligrams

of toxicant per liter

 of water consumed

 (mg/’L)

by

2

liters per day

 (L/d).

 The lowest NOAEL—H must

 be used

in the calculation of

 the acceptable

 daily

 intake.

c)

For

 those substances

 for which

 the lowest observed

adverse effect

 level

 (LOAEL—H)

 for humans exposed to the

substance

 in drinking water has been derived,

one—hundredth

 of the LOAEL—H may be substituted

 for the

NOAEL—H

 in subsection

 (b).

d)

 For those substances

 for which

a

 no observed adverse

effect

 level

 (NOAEL—A)

 has been derived from studies of

mammalian

 test species exposed

 to the substance via oral

routes including gavage,

 the acceptable daily intake

equals the product

 of multiplying

 1/100 of the NOAEL—A

given in milligrams

 toxicant

 per day per kilogram of

test species weight

 (mg,/kg—d)

 by the average weight

of

an adult human of

 70 kilograms

 (kg).

 The lowest NOAEL—A

among animal species must

 be used

 in the calculation of

the acceptable daily intake.

 Additional considerations

in selecting the NOAEL—A include:

1)

 If the NOAEL—A is given

 in milligrams

 of toxicant

per

 liter

 of water consumed (mg/L)

 then, prior

to

calculating the acceptable daily intake,

 the NOAEL-

A must be multiplied by the daily average volume of

water consumed by the mammalian test species

in

liters per day

 (L/d)

 and divided by

 the average

weight

of

 the mammalian

 test species

 in kilograms

(kg).

2)

 If the NOAEL—A

 is given

 in milligrams of

 toxicant

per kilogram of

 food consumed

 (mg/kg),

 prior

to

calculating the acceptable daily intake the NOAEL—A

must

 be, multiplied by the average amount

in

kilograms

 of food consumed daily by the mammalian

test

 species

 (kg/’d)

 and divided

 by the average

weight

 of the mammalian

 test species

 in kilograms

(kg).

3)

 If the mammalian test species were not exposed to

I07—340

—75—

the toxicant each day

 of the test period,

the

NOAEL-A must be multiplied by the ratio of days of

exposure

 to the total days of the test period.

4)

 If more than one NOAEL—A

 is available for

 the same

mammalian

 test species,

 the geometric mean of

the

NOAEL-As must be used.

e)

 For those substances

 for which

 a NOAEL-A is not

available’ but the lowest observed adverse effect level

(LOAEL-A)

 has been derived from studies

 of mammalian

test species exposed

 to the substance via oral routes

including gavage, one—tenth of the LOAEL—A may be

substituted for

 the NOAEL—A

 in subsection

 (d).

The

LOAEL—A must

 be selected

 in the same manner

as

 that

specified

 for the NOAEL—A

 in subsection

 (d).

f)

If

 no studies pertaining to the toxic substance

in

question can be found

 by the Agency,

 no criterion can be

determined.

Section 302.648

 Determining

 the Human Threshold Criterion

The HTC

 is calculated according

 to the equation:

HTC

 ADI,/W

+

(F

 x BCF)~

Where:

HTC

=

 Human health protection criterion

 in milligrams

per liter

 (mg,’L);

ADI

=

 Acceptable daily intake of substance

 in milligrams

per day

 (mg/d)

 as specified

 in Section 302.645;

W

=

 Per capita daily water consumption equal

to

 2 liters

per day

 (L/d)

 for surface waters

 at. the point

 of intake

of

 a public or

 food processing

 water supply,

 or equal

to

0.01

 liters per day

 (L/d)

 which represents

 incidental

exposure through contact

or

 ingestion of

 small volumes

of water while swimming or during other

 recreational

activities

 for areas which are determined

 to be public

access areas pursuant to Section 302.201(b)(3),

or

 0.001

liters per day

 (L/d)

 for other General Use waters;

F

=

 Assumed daily

 fish consumption

 in the United States

equal

 to 0.020 kilograms per day

 (kg,’d); and

BCF

=

 Aquatic organism Bioccncentration Factor with

units

 of liter per kilogram

 (L/kg)

 as derived

in

Sections 302.660 through 302.666.

107—34 1

—76—

Section 302.651

 The Human Nonthreshold Criterion

The Human Nonthreshold Criterion

 (HNC)

 of a substance

 is that

concentration or level of

a

 substance at which humans are

protected from an unreasonable

 risk of disease caused by

a

nonthreshold toxic mechanism

as

 a result of

 incidental exposure

to or ingestion of surface waters

 of the State and from ingestion

of aquatic organisms taken from surface waters of

 the State.

HNCs are derived for

 those toxic substances for which any

exposure,

 regardless of extent,

 carries some risk of damage as

specified

 in subsections

 (a) and

 (b).

a)

 For single substances,

a

 risk

 level

 of one

 in one

million

(1

 in 1,000,000)

 shall

 be allowed

 (i.e,

considered acceptable)

for

 the purposes of determination

of an HNC.

b)

 For mixtures

 of substances, an additive risk

 level

of

one

 in one hundred thousand

(1

 in 100,000)

 shall

be

allowed

 (i.e,

 considered acceptable)

for

 the purposes

of

determination of

an

 HNC.

Section 302.654

 Determining

 the Risk Associated Intake

The Risk Associated Intake

 (RAI)

is

 the maximum amount

of

a

substance which

if

 ingested daily

for

 a lifetime

 is expected

to

result

in

the

 risk of one additional case of

 human cancer

 in a

population of one million.

 Where more than one carcinogenic

chemical

 is present,

 the RAI shall

 be based on an allowed

additive risk

 of one additional

 case

of

 cancer

 in a population

of

one hundred thousand.

 The PAl must

 be derived as

 specified

in

subsections

(a)

 through

 (c).

a)

For

 those substances for which

 a human epidemiologic

study has been performed,

 the RAI equals the product

of

the dose from exposure

 in units

 of milligrams

 toxicant

per kilogram body weight per day

 (mg/kg—d)

 that

 results

in

 a 70—year lifetime cancer probability of

one

 in one

million,

 times the average weicht

of

 an adult human

of

70 kilograms

 (kg).

The

 resulting PAl

 is expressed

in

milligrams toxicant per day

 (rnq/d)

.

 If more than one

human eDidemioloqic study

 is available,

 the lowest

exposure level resulting

in

 a 70—year lifetime

probability

 of cancer equal

to

 a ratio of one

 in one

hundred thousand must be used in calculating the PAl.

b)

 in the absence, of an epidemiologic study,

 for those

toxic substances

 for which

 a carcinogenic potency

 factor

(CPF) has been derived from studies

 of mammalian test

species

 the risk associated intake

 is calculated

 from

the equation:

1,07—342

—77—

RAI

=

 K/CPF

Where:

RAI

=

 Risk associated intake in milligrams

per

day (mg/d);

K

 A constant consisting

of

 the product

of

the average weight of an adult human, assumed

to be

 70 kg, and the allowed cancer risk

 level

of one in one million

 (1/1,000,000);

and

CPF

=

 Carcinogenic Potency Factor

 is the risk

of one additional cancer per unit dose

 from

exposure.

 The CPF

 is expressed

 in units

of

inverse milligrams per kilogram-day

 (l/mg,/kg—

d)

 as derived in subsections

 (b)(l)

 through

(b) (7).

~

 Only those studies which fulfill

 the data

requirement criteria

 of Section 302.606 shall

be

used

 in calculating the CPF.

2)

 The linear non—threshold dose—response relationship

developed

 in the same manner

as

 in the USEPA

document “Mutagenicity and Carcinogenicity

Assessment

 of 1,3—butadiene”,

 incor,porated by

reference

in

35

 Ill. Adm.

 Code 301.106,

 shall

be

used in obtaining the unit risk,

 defined as

the

95th percentile upper bound

 risk

 of one additional

cancer resulting from

 a life time exposure

 to a

unit concentration of

 the substance being

considered.

 The CPF shall

 be estimated from the

unit

 risk

 in accordance with subsection

 (b)(7).

In

calculating

 a CPF,

 the Agency must review alternate

scientifically valid protocols

if

 so requested.

3)

If

in

 a study of

 a single species more

 than one

type of

 tumor

is

 induced by exposure

to

 the toxic

substance,

 the highest of

 the CPF5

 is used.

4)

 If two or more studies vary

 in either species,

strain or

 sex of

 the test animal,

or

 in tumor

 type,

the highest CPF

is

 used.

5)

 If more than one tumor

of

 the same type

is

 found

in

some of

 the test animals,

 these should be pooled

so

that the dose response relationship

 is dose versus

number of tumors per animal.

 ‘The potency estimate

for this dose response relationship

 is used

if

it

is higher than estimates resulting from other

107—343

—78—

methods.

6)

 If two or more studies are identical

 regarding

species, strain and sex

of the test animal,

and

tumor type,

 the highest of the CPFs

 is used.

7)

 Calculation of an equivalent

 dose between animal

species and humans

 using

 a surface area conversion,

and conversion of units

 of exposure

 to dose

in

milligrams

 of toxicant

 per kilogram of body weight

per day

 (mg/kg—d) must

 be performed as

 specified

in

the USEPA document “Mutagenicity and

Carcinogenicity Assessment

of

 1,3—butadiene”,

incorporated by reference

in

35

 Ill.

 Adm.

 Code

301.106.

c)

 If both a human epidemiologic study and a study of

mammalian test species are available

 for use

in

subsections

 (a) and

 (b),

the

 risk associated intake

is

determined

 as follows:

1)

 When the human epidemiologic study provides

evidence of

 a carcinogenic effect on humans,

the

RAI

 is calculated

 from the human epidemiology study

as specified

 in subsection

 (a).

2)

 When the mammalian study provides evidence of

a

carcinogenic effect on humans, but the human

epidemiologic study does

 not,

 a cancer

 risk

to

humans

 is assumed and the risk associated

 intake

is

calculated as specified

 in subsection

 (b).

Section

 302.657

 Determining the Human Nonthreshold Criterion

The HNC is calculated according

 to the equation:

HNC=RAI/W+

 (FxBCF)

Where:

HNC

=

 Human Nonthreshold Protection Criterion

in

milligrams

 per liter

 (mg/L)

PAl

=

 Risk Associated Intake

of

 a substance

in

milligrams

 per day

 (mg/d) which

 is associated with

a

lifetime cancer risk

 level equal

to

 a ratio of one

to

1,000,000 as derived

 in Section 302.654;

W

=

 Per capita daily water

 consumption equal

to

2

 liters

~er day (L/c~ for su:foce waters

 at the point of intaKe

of

 a public or

 food processi~g,,~watersupply,

 or equal

to

0.01

 liters per day

 (L/d) which represents

 incidental

107—344

—79—

exposure through contact

or

 ingestion of small volumes

of water while swimming

 or during other recreational

activities

 for areas which are determined

 to be public

access areas pursuant to Section

 302.20l(b)(3),

or

 0.001

liters per day (L/d)

 for other General Use waters;

F

=

 Assumed daily fish consumption.

in

 the United States

equal

 to 0.020 kilograms

 per day

 (kg/d); and

BCF

=

 Aquatic Life Bioconcentration

 Factor with units

of

liter per kilogram (L/kg)

 as derived

 in Section 302.663.

Section 302.658

 Stream Flow

 for Application

 of Human

Nonthreshold Criterion

The HNC shall apply at all times except during periods when flows

are less than the harmonic mean flow (Qhm),

 as determined by:

Qhm

=

N

/

 SUM(l,/Qi)

Where:

Qhm

=

 harmonic mean flow,

N

=

 number

 of daily values

 for stream flows,

and

Qi

=

 daily streamflow value on day

i.

Section 302.660

 Bioconcentration Factor

A Bioconcentration Factor

 is used

 to relate substance residue

in

aquatic organisms

 to the concentration

 of the substance

 in the

waters

 in which the organisms reside.

Section 302.663

 Determination of Bioconcentration

 Factors

A Bioconcentration Factor equals the concentration of a substance

in all or part of an aquatic organism

 in milligrams per kilogram

of wet

 tissue weight

 (mg/kg), divided

 by the concentration

of

the

substance

 in the water

 to which the organism

 is exposed

in

milligrams

 of the substance per liter of water

 (mg/L)

a)

 The Bioconcentration Factor

is

 calculated from

a

 field

study

 if the following conditions are met:

1)

 Data are available

 to show that the concentration

of the substance

 in the water

 to which

 the organism

was exposed remained constant over

 the range of

territory

 inhabited by

 the organism and for

a

period

of

 time exceeding

 28 days

2)

 Competing mechanisms for removal of the substance

107—345

—80—

from solution did not affect the bioavailability

of

the substance; and

3)

 The concentration of

 the substance

 to which the

organism was exposed

 is less than the lowest

concentration causing any adverse effects

 on the

organism.

b)

 In the absence of

 a field—derived Bioconcentration

Factor,

 the Bioconcentration Factor

 is calculated

 from

a

laboratory

 test

if

 the following conditions are met:

1)

 The Bioconcentration Factor was calculated from

measured ‘concentrations of the toxic substance

in

the test solution

2)

 The laboratory

 test was of sufficient duration

to

have

 reached steady—state which

 is defined as

a

less

 than

 10 percent change

 in the calculated

Bioconcentration Factor over

a

 2—day period or

16

percent

of

 the test duration whichever

is

 longer.

In the absence

of

 a laboratory test which has

reached steady—state,

 the Bioconcentration Factor

may

 be calculated from

 a laboratory

 test with

a

duration greater

 than

 28 days

 if more than one test

is available

 for the same species of organism

3)

 The concentration of

 the toxic

 substance

 to which

the test organism was exposed

 is less than the

lowest concentration causing any adverse effects on

the organism

4)

 If more than one Bioconcentration Factor for the

same species

 is available,

 the geometric mean

of

the Bioconcentration Factors

is

 used;

and

5)

 The Bioconcentration Factor

 is calculated on a wet

tissue weight basis.

 A Bioconcentration Factor

calculated using dry tissue weight shall

be

converted

to

 a wet tissue weight basis

by

multiplying

 the dry weight bioconcentration value

by

0.1

 for plankton and by 0.2 for individual

species of

 fishes and invertebrates.

c)

In

 the absence of any Bioconcentration Factors measured

from field studies

as

 specified

 in subsection

(a)

or

laboratory

 studies which have reached steady—state

as

specified

 in subsection

 (b),

 the Bioconcentration Factor

is calculated according

 to the equation:

log BCF

=

A

 B log Kow

107—34~

—81—

Where:

BCF

=

 Bioconcentration Factor;

Kow

 The octanol/water partition coefficient

measured as specified

 in ASTM E 1147,

incorporated by reference

in

35

 Ill.

 Adm.

 Code

301.106

 (If the Kow

 is not available from

laboratory testing,

it

 shall be calculated

from structure—activity relationships or

available regression equations.);

and

The constants A

=

 —0.23 and B

 0.76 shall be

used unless

 a change

 in the value

of

the

constants

 is requested

 (The Agency shall honor

requests for changes only

 if such changes are

accompanied by scientifically valid supporting

data.).

Section 302.666

 Utilizing the Biocoricentration Factor

The Bioconcentration Factor derived

 in Section

 302.663

 is used

to

calculate water quality criteria for a substance

 as specified

be

low:

a)

 When calculating

 a WDAPC as described

 in Section

302.633,

 the geometric mean of all available

steady—state whole body Bioconcentration Factors

for

fish and shellfish species which constitutes or

represents

 a portion of the diet

of

 indigenous wild and

domestic animal

 species

 is used.

 Additional

considerations

 in deriving a Bioconcentration Factor

include:

1)

 An edible portion Bioconcentration Factor

is

converted

to

 a whole body Bioconcentration Factor

for a

 fish or shellfish species by multiplying

the

edible portion Bioconcentration Factor

 by the ratio

of

 the percent lipid

 in the whole body

 to the

percent

 lipid

 in the edible portion of

 the same

species.

2)

 A Bioconcentration Factor calculated

 as described

 in Section

 302.663(c)

 is converted

to

 a whole body

Bioconcentration Factor

 by multiplying the

calculated Bioconcentration Factor by the

 ratio of

the percent lipid

 in the whole body to 7.6.

b)

 When calculating either

 a human threshold criterion

 or a

human nonthreshold criterion as described

 in Sections

302.642 through 302.648 and Sections 302.651 through

302.657,

 respectively, the geometric mean of all

10 7—347

—82—

available edible portion Bioconcentration Factors

for

fish and shellfish species consumed by humans

 is used.

Additional considerations

 in deriving

 a Bioconcentration

Factor

 include:

1)

 Edible portions include:

A)

 Decapods

-—

 muscle tissue.

B)

 Bivalve molluscs

——

 total living tissue.

C)

 Scaled fishes

——

 boneless,

 scaleless filets

including

 skin except for bloater chubs

in

which

 the edible portion

 is the whole body

excluding

 head,

 scales and visera.

D)

 Smooth—skinned fishes

——

 boneless,

 skinless

filets.

2)

 A whole body Bioconcentration Factor

 is converted

to an edible portion Bioconcentration Factor by

multiplying the whole body Bioconcentration Factor

of

 a species

 by the ratio of the percent lipid in

the edible portion

to

 the percent lipid

 in the

whole body of

 the same species.

3)

 A Bioconcentration

 Factor calculated as described

in Section

 302.663

 is converted

 to an edible

portion Bioconcentration

 Factor by multiplying the

calculated Bioconcentratio’n

 Factor by the

 ratio of

the percent lipid

 in the edible portion

to

 7.6.

Section 302.669

 Listing of

 Derived Criteria

a)

 The Agency shall develop and maintain

a

 listing of

toxicity criteria pursuant to this Subpart.

 This list

shall

 be made available

 to the public and updated

periodically but no less frequently

 than quarterly,

and

shall

 be published when updated

 in the Illinois

Register.

b)

 A criterion published pursuant

 to subsection

 (a) may be

proposed

 to the Board

 for adoption as

 a numeric water

quality standard.

c)

 The Agency shall maintain

 for inspection all information

including,

 but not limited to,

 assumptions,

 toxicity

data and calculations used

 in the derivation

 of any

toxicity criterion listed pursuant

 to subsection

(a)

until adopted by the Board as a water quality standard.

107-348

—83—

TITLE 35:

 ENVIRONMENTAL PROTECTION

SUBTITLE C:

 WATER POLLUTION

CHAPTER

I:

 POLLUTION CONTROL BOARD

PART 305

MONITORING AND REPORTING

Section

305.101

 Preamble

305.102

 Reporting Requirements

305.103

 Effluent Measurement

APPENDIX A

 References

 to Previous Rules

AUTHORITY:

 Implementing Section

 13 and authorized by Section 27

of the Environmental Protection Act

 (Ill.

 Rev.

 Stat.

 1987,

ch.

111

~,

 pars.

 1013 and 1027).

SOURCE:

 Filed with the Secretary of

 State January

1,

 1978;

amended at

3

 Ill.

 Reg.

25,

p.

 190, effective June

21,

 1979;

codified at

6

 Ill. Peg.

 7818;

 amended at

8

 Ill.

 Peg.

 1600,

effective January

18,

 1984;

 amended

 in P88—i

at

13

 Ill.

 Peg.

5989,

 effective April

18,

 1989; amended

 in P88—21(A)

at

 Ill.

Reg.

,

 effective

Section 305.102

 Reporting Requirements

a)

 Every person within this State operating

 a pretreatment

works,

 treatment works,

 or wastewater source shall

submit operating

 reports

 to the Agency at a frequency

to

be determined

 by the Agency.

 “Agency” means

the

Illinois Environmental Protection Agency.

 Such reports

shall contain information regarding

 the quantity of

influent and of effluent discharged,

 of wastes bypassed

and of combined sewer overflows;

 the concentrations

of

those physical,

 chemical,

 bacteriological and

radiological parameters which shall be specified

by

the

Agency;

 information concerning

 the biological

 impact

of

the discharge as

 specified

 by the Agency,

 pursuant

to

Section

39

 of the Act

 and any additional information

the Agency may reasonably

 require.

 This reportinc

requirement for pretreatment works

 shall only app~y to

those pretreatment

 works which~are required

 to have

a

pretreatment permit

 or authorization

 to discharge

pursuant

to

35

 Ill. Adm.

 Code

 310.

±j-

 Discharge toxic pol±utants7 as defined

 in Section

562-(-lB-)- of the elean Water Act7

 or pollutants which

may interfere with the treatment process7 into the

receiving treatment works or are sub~eet to

regulations promulgated

 under- Section S8~of the

Clean water- Act -~-eWM-~-?BB B-~-S~?--125±et seq7’~ or-

107—349

—84—

~

 Bisehar-ge 15

 or more of the total hydraulic flow

r-eeeived by the treatment

 wer-ks-- or

3~

 Discharge ±5

 or more of the total biological

loading received by the treatment works as measured

by S—day biochemical oxygen demand7

b)

 Every holder of

 an NPDES (National Pollutant Discharge

Elimination System)

 permit

 is required to comply with

the monitoring,

 sampling,

 recording and reporting

requirements set forth in.the permit and this cçhapter.

c)

 Compliance with the reporting requirements

of

35

 Ill.

Adm.

 Code 310 satisfies this reporting requirement.

107—350

—85—

Sect ion

309.101

309.102

309.103

309.104

309.105

.309.106

309.107

309.

08

309.109

309.110

309.111

309.112

309.113

309.114

309.115

309.116

309.117

309.118

309. 119

309.141

309.142

309. 143

309.144

309.145

309.146

309.147

309.148

309.149

TITLE

 35 ENVIRONMENTAL PROTECTION

SUBTITLE C:

 WATER POLLUTION

CHAPTER

I:

 POLLUTION CONTROL BOARD

PART

309

PERMITS

SUBPART

A:

 NPDES PERMITS

Preamble

NPDES Permit Required

Application

—

 General

Penewa 1

Authority

 to Deny NPDES Permits

Access to Facilities and Further

 Information

Distribution

 of Applications

Tentative Determination and Draft Permit

Public Notice

Contents of Public Notice of Application

Combined Notices

Agency Action After Comment Period

Fact

 Sheets

Notice

 to Other Governmental Agencies

Public Hearings on NPDES Permit Applications

Notice

 of Agency Hearing

Agency Hearing

Agency Hearing File

Agency Action After Hearing

Terms and Conditions

 of NPDES Permits

Water Quality Standards and Waste Load Allocation

Effluent Limitations

Federal New Source Standards of Performance

~iration

 of Permits

Authority

 to Establish Recording,

 Reporting,

 Monitoring

and Sampling Requirements

Authority

 to Apply Entry and inspection Requirements

Schedules of Compliance

Authority

 to Require Notice of

 Introduction

of

Pollutants into Publicly Owned Treatment Works

309.150

 Authority to Ensure Compliance

 by Industrial

 Users with

Sections 204(b),

 307 and 308

of

 the Clean Water Act

Maintenance and Equipment

Toxic Pollutants

Deep Well Disposal

 of Pollutants

 (Repealed)

Authorization

 to Construct

Sewage Sludge Disposal

‘Total Dissolved Solids Resorting and Monitoring

Appeal

 of Final Agency Action on

 a Permit Application

Autnority

 to Modify,

 Suspend

 or Revoke Permits

Revision of

 Schedule of Compliance

Permit Modification Pursuant

 to Variance

Public Access

 to Information

Effective Date

309.151

309.152

309.153

309.154

309.155

309.156

309.181

309.182

309.183

309.184

309.185

309.191

107—351

—86—

SUBPART

B:

 OTHER PERMITS

Section

309.201

 Preamble

 309.202

 Construction Permits

309.203

 Operating Permits; New or Modified Sources

309.204

 Operating Permits; Existing Sources

309.205

 Joint Construction and Operating Permits

309.206

 Experimental Permits

309.207

 Former Permits

 (Repealed)

309.208

 Permits for Sites Receiving Sludge

 for Land Application

309.221

 Applications

—

 Contents

309.222

 Applications

—

 Signatures and Authorizations

309.223

 Applications

—

 Registered

 or Certified Mail

309.224

 Applications

—

 Time

 to Apply

309.225

 Applications

—

 Filing and Final Action by Agency

309.241

 Standards

 for Issuance

309.242

 Duration of Permits

 Issued Under Subpart

B

309.243

 Conditions

309.244

 Appeals from Conditions

 in Permits

309.261

 Permit No Defense

309.262

 Design, Operation and Maintenance Criteria

309.263

 Modification of Permits

309.264

 Permit Revocation

309.265

 Approval of Federal Permits

309.266

 Procedures

309.281

 Effective Date

309.282

 Severability

APPENDIX A

 References

 to Previous Rules

AUTHORITY:

 Implementing Sections

 13 and

 13.3 and authorized by

Section

27

of

 the Environmental Protection Act

 (Ill.

 Rev.

 Stat.

1987,

ch.

 lii ~

,

 pars.

 1013,

 1013.3 and 1027).

SOURCE:

 Adopted in R7l—l4,

at

 4 PCB

 3, March

7,

 1972;

 amended

in P73—il,

12,

at

 14 PCB 661, December

5,

 1974,

at

 16 PCB

 511,

April

24,

 1975,

 and at

28

 PCB 509, December

20,

 1977;

 amended

in

P73—li,

12,

at

 29 PCB 477,

at

2

 Ill.

 Req.

16,

p.

 20, effective

April

20,

 1978;

 amended

 in P79—13,

at

 39 ?CB

 263,

at

3

 Ill.

 Peg.

34,

p.

 159, effective August

7,

 1980;

 amended

 in R77—12B,

at

41

PCB 369,

at

5

 Ill.

 Reg.

 6384,

 effective May

28,

 1981;

 amended

in

P76—21, at

 44 PCB 203,

at

6

 Ill.

 Req.

 563,

 effective December

24,

1981;

 codified

6

 Ill. Peg.

 7818;

 amended

 in P82—5,

10,

at

54

PCB ~11, at

8

 Ill. Peg.

 1612,

 effective January

18,

 1984;

amended

 in P86—44 at

12

 Ill.

 Peg.

 2495 effective January

13,

1988; amended

 in R88—l at

13

 Ill. Reg.

 5993,

 effective April

18,

1989; amended

 in P88—21(A)

at

 Ill.

 Peg.

effect ive

107—352

—87—

SUBPART A:

 NPDES PERMITS

Section 309.103

 Application

—

 General

a)

 Application Forms

1)

 An applicant

 for an National Pollution Discharge

Elimination System

 (NPDES)

 Permit shall file an

application,

 in accordance with Section 309.223

hereof,

 on forms provided by the Illinois

Environmental Protection Agency

 (Agency).

 Such

forms shall comprise the NPDES application forms

promulgated by the U.S. Environmental Protection

Agency for

 the type of discharge

 for which

 an NPDES

Permit

 is being sought and such additional

information as the Agency may reasonably require

in

order

 to determine that the discharge

 or proposed

discharge will

be

 in compliance with applicable

state and federal requirements.

2)

 In addition

 to the above application forms,

the

Agency may require the submission of plans and

specifications

 for treatment

 works and summaries of

design criteria.

3)

 In addition

 to the above application forms,

the

Agency may require, pursuant

 to Section

39

 of the

Act,

 the installation,

 use, maintenance and

reporting

of

 results from monitoring equipment and

methods,

 including biological monitoring.

The

Agency may require, pursuant

 to Section

 39 of the

Act,

 effluent toxicity testing

 to show compliance

with

35

 Ill.

 Adm.

 Code 302.621 and 302.630.

If

this toxicity

 testing shows

 the effluent

to

be

toxic,

 the Agency may require further testing and

identification

of

 the toxicant(s)

 pursuant

to

35

Ill. Adm.

 Code 302.210(a).

b)

 Animal Waste Facilities

An applicant

 for an NDPES Permit

 in connection with the

operation

 of an animal waste facility shall complete,

sign,

 and submit an NPDES application

 in accordance with

the provisions of Part

35

 Ill. Adm.

 Code 500 et

 seq.

c)

 Mining Activities

1)

If,

 as defined by Section

 35 111.

 Adm.

 Code

402.101,

 mining activities are to

 be carried out on

a facility for which an NPDES Permit

 is held or

required,

 the applicant must submit

 a permit

application as required by Section

35

1l.

 Adm.

107— 353

—88—

Code

 403.103, 403.104 and 405.104.

 If the facility

will have

 a discharge other than a mine discharge

or non-point source mine discharge

 as defined by

Section

35

 Ill.

 Adrn.

 Code 402.101, the applicant

shall also submit an NPDES Permit application

in

accordance with Section 309.223 on forms supplied

by the Agency.

2)

 As provided by Section

35

 Ill.

 Adm.

 Code 403.101,

except

 to the extent contradicted

in

35

 Ill.

 Adm.

Code:

 Subtitle

D,

 Chapter

I,

 the rules contained

in

this Subpart

 A of

35

 ill-- Adm7 Code 399 apply

to

35

Ill Adm.

 Code:

 Subtitle

D,

 Chapter II NPDES

Permits.

3)

 As provided by Section

35

 Ill.

 Adm.

 C’ode 406.100,

except

 to the extent provided

in

35

 Ill. Adm.

 Code:

Subtitle

D,

 Chapter

I,

 the effluent and water

quality standards of Parts

35

 lii.

 Adm. Code

 302,

303 and

 304 are inapplicable

 to mine discharges and

non—point

 source mine discharges.

d)

 New Discharges

Any person whose discharge will begin after the

effective date

 of this Subpart A or any person having an

NPDES Permit issued by the U.S. Environmental Protection

Agency for

 an existing discharge which will

substantially change

 in nature,

or

 increase in volume or

frequency,

 must apply

 for an NPDES Permit either:

1)

 No later

 than

 180 days

 in advance of the date

on

which such NPDES Permit will be required;

or

2)

 In sufficient

 time prior

 to the anticipated

commencement

 of the discharge to insure compliance

with the requirements

 of Section

306

of

 the Clean

Water Act

 (CWA)

 (33 U.S.C.

 1251 et

 seq.),

 or with

any applicable zoning

 or siting requirements

established pursuant

 to Section 208(h)(2)(C)

of

the

CWA,

 and any other applicable water quality

standards and applicable effluent standards

and

limitations.

e)

 Signatures

An application submitted by

 a corporation shall be

signed by a principal executive officer of

 at least

the

level

 of vice president,

or

 his duly authorized

representative,

 if such representative

is

 responsible

for the overall operation of

 the facility from which

the

discharge described

 in the application form

107—354

—89—

originates.

 In the case of a partnership or a sole

proprietorship, the application shall be signed by a

general partner or the proprietor,

 respectively.

 In the

case of a publicly owned facility,

 the application shall

be signed by either the principal executive officer,

ranking elected official, or other duly authorized

employee.

IT IS SO ORDERED

Board Members J.D. Dumelle and M. Nardulli dissent; Board

Member J.T. Meyer concurs.

I, Dorothy

 M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that th

 above Opinion and Order

was

adopted on the ~-5qT

 day of

_____________,

 1990,

 by a vote

~

~

‘~,‘

Dorothy M.

 Gur’in, Clerk

Illinois Po1~utionControl Board

107—355

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