ILLINOIS POLLUTION CONTROL BOARD
December 6, 1989
IN THE MATTER OF:
)
PROPOSED AMENDMENTS TO TITLE
)
R88-2l, DOCKET A
35, SUBTITLE C (TOXICS CONTROL)
PROPOSED REGULATIONS
SECOND NOTICE
OPINION 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~sregulations for the
control of toxic substances in surface waters, as required
pursuant to Section 303(c)(2)(B) of the federal Clean Water Act
“CWA”
Today the Board splits the docket into two parts, sending
materials of Docket A to Second Notice and the materials of
Docket B to First Notice. The Docket A materials consist of
those portions of the proposal which have already received First
Notice publication in their substantive form. These portions
constitute the core of the proposal, including all elements which
are necessary to meet the federal requirement. Today the Board,
by separate Order, adopts these portions for Second Notice.
Docket B contains several amendments which ha~.’e not yet been
published for First Notice, but which have been recommended by
various participants as necessary adjuncts to the materials
adopted for Second Notice. Today the Board, by separate Opinion
and Order, adopts these portions for First Notice. It is the
Board’s present anticipation that no additional hearings will be
necessary for the Docket B proposal, and that the proposal can
therefore proceed expeditiously toward promulgation.
The Board believes that this splitting of the docket is
necessary to: (1) keep those portions of the proposed amendments
which are federally required on a schedule which will allow their
adoption by February, :990, and (2) allow for Illinois
Administrative Procedure Act (“APA”) First Notice for sections
not previously given First Notice. The Board notes that it is
not sure that all of the materials which it includes in Docket B
would necessarily be APA—impermissable as amendments within
Docket A. However, the Board has generally taken the
conservative approacr~by placing all questionable materials into
Docket B.
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In general, the Board will not repeat today the discussion
presented in the First Notice of Docket A, other than where the
perspectives presented there have evolved.
PROCEDURAL HI STORY
On August 31, 1989 the Board adopted a modified version1 of
the Agency’s proposal for First Notice. First Notice publication
occurred at 13 Ill. Reg. 14152 Septembe. IS, 1929. ~e Board’s
adoption of its First Notice proposal was based upon a record
consisting of 77 Exhibits, 12 Public Corr~oents (“PC”), and
testimony received during seve~~days of public hearinc~ The
interested person is directed to the First Notice Opinion for a
summary of this portion of the record.
Additionally, various procedural matters were addressed
prior to First Notice via pre—hearing cci’~ferences and Hearing
Officer Orders. The interested person is further directed to the
First Notice Opinion for a summary of these matters.
The Agency has certified that adoption of the instant rules
is federally required pursuant to the procedures of Section 28.2
of the Illinois Environmental Protection Act (“Act”). The
resulting deadline date for submission of the EcIS pursuant to
Section 28.2(d) was therefore calculated to be August 9, 1989. A
partial—draft EcIS was duly filed by the Illinois Department of
Energy and Natural Resources (“DENR”) on August 9, 1989,
titled: “Analysis of Proposed Revisions to Subtitle C Toxics
Control Program: Pollution Control Board Docket R88—21” (Exh.
82). Additionally, on November 2, 1989 DENR, filed a
supplemental EcIS document titled: “Analysis of Cost Relating to
Proposed Revisions to Toxics Control Program: Pollution Control
Board Docket R88—2l1’ (Exh. 96). This document was updated and
submitted as Exhibit 108. On November 17, 1989 DENR provided
further economic analysis within PC #24.
In its First Notice Opinion the Board noted its belief that
February 4, 1990 constitutes the State’s deadline for compliance
with Section 303(c)(2)(B) of the CWA. This view is based on the
assertion to that end by the United States Environmental
Protection Agency (“Us:PA”) (Exh. 75). Although public comment
has been requested ann received on this issue, the Board finds
nothing in this comment which causes it to recede from its
earlier belief. The Board has accordingly expedited this
~ Modifications made to the Agency’s proposal by the Board at
First Notice are discussed at pages 22—34 of the First Notice
Opinion: In the Matter of: Proposed Amendments to Title 35,
Subtitle C (Toxics Control), R8B—21, August 31, 989.
1O~458
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proceeding to allow for adoption of final rules by the deadline
date of February 4, 1990.
Post—First Notice Hearing Record
Subsequent to First Notice seven additional days (September
18-19, October 2—3, and November 6—8) of public hearings have
been held. The September hearings included discus~ionby various
participants of the First Notice Opinion and Orders, as well as
presentation by the DENR of its August 9 EcIS document.
At the October hearings additional testimony was received
from the Agency, the Illinois Environmentral Regulatory Group
(“IERG”), and the Illinois Steel Group (“Steel Group”) addressing
issues including replacement of the General Use Standard for
iron, an exception to the TRC standard applicable to intermittent
discharges of TRC, mixing zones for thermal discharges, and
various portions of the Subpart F procedures for calculating
toxicity criteria. The Steel Group also provided the expert
testimony of new witness John A. Lowe (R. at 782 et seq.).
The November hearings focused on the presentation by DENR of
the cost analysis of the proposed rule (Exh. 96) and presentation
of additional testimony by the Agency, IERG, the Steel Group, and
the Village of Sauget (“Sauget”). IERG presented the expert
testimony of new witness Dr. Philip
B. Darn
(R. at 1185 et
seq.),
the Steel Group presented the expert testimony of new witness Dr.
Thomas E. Simpson (R. at 1321 et seq.), and Sauget presented the
expert testimony of new witness Michael R. Corn (R. at 1479 et
seq.).
Collectively, the seven post—First Notice hearings produced
44 additional exhibits, Exh. 78 through Exh. 121.
JCAR Preliminary Review
On October 25, 1989 the Joint Committee on Administrative
Rules of the Illinois General Assembly (“JCAR”) filed a response
to the Bqard request for preliminary review of the instant
proposal~. Additionally, by letters of October 25 and 30, 1989
the Board sought and received expedited preliminary review from
JCAR of incorporations by reference materials.
2 On September 28, 1989 the Board issued a Supplemental First
Notice Opinion in response to some of this discussion, wherein it
addressed some matters not contained in the First Notice Opinion.
Due to Board oversight, the October 25 JCAR document was not
previously entered into the record. It is hereby accepted as
Exhibit 122.
106—159
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Post—l~irst Notice Public Comments
Twenty—one Public Comments have been filed during the First
Notice Comment period. PC# 13—15 consist of questons pre—filed
by the Steel Group, Sauget, and Airerock Corporation (“Amerock”),
respectively, and addressed at the SeptemL-~r hearings. PC #16,
filed by the Administrative Code Division if the Illinois Office
•of the Secretary of State ~“Code Division”)1 consists of cc•rments
regarding con~orming the proposal to Code Division standards. PC
;17 and #18 ci.ntain general comments of the Illinois and National
Wildlife Federations (“IWF/NWF”). PC #19 and #21 contain
comments and analysis of the Illinois Department of Commerce and
Community Affairs. PC #20 and #25 contain general comments of
the Agercy, in part based upon comments the Agency had received
f om the USEPA. PC #22 contains comments of Wildman, Harrold,
A.. ~en & Dixon regarding the acute to chronic ratio found at
p: oosed Section 302.627. PC #23 consists of general comments of
th.. USEPA. PC #24 consists of comments of DENR, including
revised economic imp :~tanalyses. PC #26 and #30 consist of
general comments and z:conomic analysis submited by the Steel
Group. PC #27 consists of gener~..i. comments of Sauget. PC #28
and #32~consist of ommerts of Outboard Marine Corporation
(“OMC’). PC #29~ cc sists of comments of IERG. PC #31 consists
of comments of Anierock. PC #33 consists of comments of the
Agency addressed to questions posed by JCAR (Exh. 122).
OVERVIEW OF PROPOSAL
The purpose of the instant proposal is to respond to the
need to update State regulations, pursuant to Federal Clean Water
Act (“CWA”) and to advances in the sciences of toxicology and
chemical detection, for the control of toxic substances in
Illinois surface waters. Accordingly, the instant proposals both
add to and amend the Board’s ?::isting water quality regulations
(35 Ill. Adm. C~de302.101 et
~
he underlyinc policy of
both the existing regulations and the proposed regulations is
that the waters of Illinois must not be impacted by toxic
substances in toxic amounts.
Implementation of this policy under the instant proposal is
achieved by two basic refinements of the existing regulations.
The first consists of refining the value cf the numeric standards
found at 302.208 to bring them into agreement with the best
PC #32 consists of a corrected version of otherwise identical
PC #28. PC #29 was filed on November 20, 1989 (one business day
after the close of record) with a motion for leave to file
instanter. The motion is hereby granted.
106—160
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available current knowledge. The second consists of providing a
detailed, specific set of directives and procedures, found at
302.210 and 302.Subpart F, via which criteria which define what
constitutes a toxic amount can be determined for those substances
for which numeric toxicity criteria are not provided. For
further explanation of these two refinements, the interested
person is directed to the First Notice Opinion.
Beyond the amendments required to bring these two basic
refinements to fruition, the instant proposal, in both Dockets A
and B, contains a variety of additional amendments which are
required to bring the rest of the Board’s water regulations into
conformity with the basic refinements. These range over such
matters as supplying an Incorporations by Reference section at
201.106 and a Definitions section at 302.100, and refinement of
the Allowed Mixing concept at Section 301.102, Monitorinc and
Reporting requirements at Section 305.102, and NPDES requirements
at Sections 309.103 and 309.152. The interested person is
directed to the First Notice Opinicn for a discussion of how
these conforming amendments dovetail with the basic refinements
to the toxicity prohibition.
DISCUSSION OF ALLOWED MIXING
Today’s rules affirm a long—standing tenet of Illinois
environmental law. That tenet is that a discharger unable to
meet treatment and effluent standards 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, designated portion of the receiving
body of water to effect mixing of the effluent with the receiving
water. This is the “allowed mixing concept”, which is developed
principally in Section 301.102.
There has been much debate, and confusion to some measure,
over a variety of issues related to this concept. The Board here
addresses these issues.
Obligations of the Discharger and Allowed Mixing
In a rulemaking with as many facets as are present in the
instant proceeding, it is not uncommon that controlling
principles are sometimes overlooked by some participants. The
Board believes that one such instance in the instant proceeding
concerns the obligations which reside with a discharger, and how
these interact with the concept of allowed mixing.
It must be recognized that all dischargers are first and
foremost required to comply with all effluent standards specified
in the Board’s effluent regulations, 35 Ill. Adm. Code Part
i06—1E~1
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304. Included in these effluent regulations are not only a
number of specific maximum concentration limits, but also a
requiremen4 to do the best job of treating an effluent before
discharge. In particular, it is specified at Section 304.102
that:
I)t shall he 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 judcement.
(emphasis added)
It is thereby only in the special circumstance where further
treatment is not t~chnclogically 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, this is the status quo circumstance, which we do not
see as being substantially changed under today’s proposal. On
this basis we view as misplaced the fear of those persons wno
believe that today’s proposal would savage the State’s waters by
allowiro massive new in—stream mixing. Similarly, we view as
misplaced the perception of others that today’s proposal would
cause mayhem on large numbers of dischargers for whom in—stream
mixing constitutes an avenue of last resort.
“Zone of Mixing” versus “Mixing Zone”
A second issue concerns the distinction between a “zone of
mixing” as a physical reality and a “mixing zone” as a regulatory
construct. 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 receivL-~gwater body, the~eis also an inherent,
physical “zone of mixing” wherein the two fluids experience
coirringling. A “zone of mixing” is thus a physical reality
associated with all mixing effluents.
As used herein, the term “mixing zone” is a formal
regulatory construct, which is not necessarily identical to the
physically existing “zone ot mixing”. An essential difference is
that the very existence of a mixing zone requires acknowledgement
to that end by the Agency. Also, the bounds of a mixing zone are
106—162
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established with the intent to minimize the region within which
the water quality standards need not be fully met and are
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). Other differences also exist, such as the boundaries
of a mixing zone are fixed over the time period for which the
regulatory mixing zone is acknowledged, rather than fluctuating
in time as is the nature o~any “zone of mixing’.
The specification that a mixing zone is a regulatory
construct is not a departure from the existing allowed mixing
policy. This is apparent from a plain reading of existing
302.102. Existing 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 have more than one
outfall shall be limited to a total mixing area not
larger....
ifl 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
remove all passive voice constructions. Additionally, 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. A second is the Agency, which is
charged with reviewing the application pursuant to its
106—163
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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. The 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.
An aspect of the instant proposal which is new under the
instant proposal is the specification that an NPDES permit may
include a mixing zone as a permit condition. The Board’s purpose
here is, i~,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 involved.
A second reason for linking mixing zones with NPDES permits
is associated with the fact that certainly the most common reason
why a discharger is likely to want a mixing zone is that the
existence of a mixing zone affords the discharcer 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
(and ZIDs) 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 wanteg within the context of an NPDES application
(e.g., R. at 470—3
).
Althouch the Board believes that most of
~ Page numbers citing to the transcribed hearing record (i.e., R.
at
____ )
begin with the hearing in this matter held on June 13,
1989. The transcripts of earlier hearings are independently
numbered.
1 06—1 64
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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 matters such as this, 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
(R. at 452).
Given the intimate association of mixing zones with NPDES
permits which the Board herein envisions, 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). Merits aside, however, the
Board believes that the instant matter has proceeded too far and
is under too severe of a time constraint to warrant a
repositioning now. Moreover, the Board sees no functional
impairment occasioned by the instant placement, but rather only
an arguable organizational awkwardness.
Allowed Mixing’s Applicability to Effluents
Another issue concerns the question: to what type of
discharges does allowed mixing apply? Under present regulations
allowed mixing applies only to the mixing of effluents, as is
apparent in the plain reading of the first sentence of existing
Section 302.102(a) (i.e.,
“...
opportunity shall be allowed for
the mixture of ari 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 current regulations, therefore, allowed mixing is available
only to dischargers of effluent as defined in 301.275. Today’s
proposal does not alter this concept.
No Allowed Mixing in Zero 7QlO Streams/Contaminated Waters
It is important to note that 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.
106—165
-
10—
The interplay between stream flow and water quality
standards is found at 35 Ill. Mm. Code 302.103, which provides
that water quality standards must be met at all times except when
flows are less than the average minimum seven—day, low—flow which
occurs once in 10 years, the “7QlO”. Obviously, when the 7Q10 is
zero, water quality standards must be met by the effluent. In a
similar manner, a receiving water that already violates a water
quality standard is incapable of diluting an effluent containing
that parameter to the safe level represented by the water quality
standard, and the effluent would have to meet the water quality
standard at a minimum.
Allowed Mixing Outside of the Context of NPDES Permits
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 zones studies 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 defining 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 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 a NPDES permit.
We nevertheless again emphasize that allowed mixing must
always occur only as a last resort when there is not otherwise a
tenable alternative ~or 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
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).
1 6A
—11-
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 decision (with the protections
afforded by its due—process provisions), and should not be
allowed multiple “bites at the apple” by later invoking some
other construct of allooed mixing. Similarly, the Agency or any
other person should not be allowed to bring an action 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.
ZID Available Only as a Regulatory Construct
The Board at this time limits the existence of a ZID solely
to a reaulatory construct. That is, a ZID does not exist until
it has been formally recognized by the Agency as an NPDES permit
condition. 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
standerds must be met within all waters of the state unless the
Agency has recognized a ZID pursuant to 302.102(e).
In reaching this determination, 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.
Allowed Mixing for Other Than Toxic Constituents
This record has focused largely on toxic constituents.
Nevertheless, the issue has been raised (e.g., R. at 741-3) as to
whether the allowed mixing provisions of Section 302.102 apply 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~ters within mixing
is allowed have the dimensions of an area (L
)
or of a volume
(L3). The dimensions are those of a volume. This is implicit
106—167
--12—
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 (f)(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.
DISCUSSION OF THE APPLICATION OF “CRITERIA”
“Criterion” Versus “Standard”
Some confusion has existed regarding the distinction between
a criterion, as referenced in SecLion 302.210 and calculated
pursuant to 302.Subpart F, and a standard. A standard is a rule
adopted by the Board, after notice is given and written and oral
comments and testimony are received, pursuant to Title 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
quality protection. Where a discharge has a
reascnable 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. Req. 23872).
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.
—13—
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 APA Rulemaking
Additional confusion has existed concerning the procedures
by which the Agency “promulgates” criteria. ‘The Agency had
construed the First Notice proposal as requiring criteria to be
adopted in an APA rulemaking (PC #20 at 11-13). This was not the
Board’s intent. In addition to the observations above, the Board
notes that if criteria were to be adopted as an APA rule, such
criteria would not be reviewabie by the Board. The Act does
not
provide for appeal of Agency rules to the Board; the Admistrative
Review Act dictates that such appeals would be heard in the
circuit court. 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 situtation
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).
The Agency has testified that in the ordinary course,
criteria would be derived during its review of an NPDES permit
application, based on data supplied by the individual
discharger. Criteria developed would, however, be applied
thereafter in permitting and enforcement situations involving
persons who had no opportunity to provide input into the criteria
derivation process. To ameliorate this situation, the Board had
required the Agency to notify the public by publication of notice
in the Illinois Register, and also provided opportunity to
challenge the validity of the criteria in any proceeding in which
they are applied to that person. The Board had provided that in
such actions, the burden of going forward with proof and of
persuading the Board of the validity and correctness of
application of the criteria rested with the Agency.
Sequential Challenge Opportunities
The USEPA has expressed concern that First Notice Section
302.210(f) might provide sequential opportunities for any given
individual to challenge any single criterion (e.g., PC #23).
This was not the Board’s intent. Rather, First Notice subsection
(f) was intended in pertinent part to specify where, within
various types of actions, a challenge right presently exists
under Illinois law. It was not intended to create new challenge
rights, and certainly not to create an opportunity for sequential
challenges within a single action. The Agency correctly observes
106--169
—14—
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 has been amended to clarify the
Board’s original intention that only one appeal opportunity is
given to any one person. A 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.
Burden of Proof
USEPA is critical of its perception of t:he burden of proof
imposed on the Agency in the proposed rules (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 the non—reviewability by the Board of Agency-adopted 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 it 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
Illiniois law. Moreover, the Board notes that the Agency can
170
—15—
minimize such burden by proposing to the Board that criteria be
adopted as Section 302.208 numeric water quality standards,
reducing the number of challenges to the criteria.
As originally proposed, Section 302.210(f) explicitly stated
that the burden of proof as to the general correctness and
validity of the criterion was on the Agency. ‘The Agency asserts
that, when applied in a permit appeal context, this represents a
conflict with Section 40(a)(l) of the Act, which places the
burden of proof on the petitioner in permit appeals (PC #20 at
13). Section 30~’.2l0(f) has been modified to require the Agency
to include in its permit appeal record all information on which
it has relied in developing and applying criteria in a permit.
The revised Section recites the burden of proof language of
Section 40, but notes 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 of a 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.
DISCUSSION OF SUBPART F
Several witnesses have raised questions regarding both the
purpose and ut’ility of proposed 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 estimate the 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 regulaLed coru’nunity know what the Agency can
and cannot consider when it does such estimations. Moreover, it
is intended to let any person, from the regulated community or
106- 171
—16—
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 particularly, 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 (R. at 1207; PC #25 at
8—9).
This 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
derives from 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 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
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.
1 0~—172
—17-
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.
ECONOMIC CONSIDERATIONS
Estimations
Obtaining estimates of the costs associated with the instant
proposal has proven difficult beyond that normally encountered in
making environmental cost/benefit analyses. Principal
comDcunding factors include: (1) determining marginal costs of
the instant proposal; (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 comoliance 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 proposal. However, it is uncertain, short of doing
site—specf±c 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 TRC 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 by 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
106 173
—18—
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 meet the requirements of the instant
proposal. 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—treatrtient 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
substances in 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
analyticai error or a unique event that is non—representative,
and that the Agency “ciertainly
...
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
probems 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 water quality standards
10(~-i74
—19—
of Section 302.208, and then only as “major6” facilities
might
need to comply with these standards.
Within these limitations, however, the DENR analysis
consists of “worst—case” conditons, 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
allowed mixing, 5 of available flow is allo:ed 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 $728.4 million, $598.1 million, and $514.7
million, respectively1 (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 proposal. DENP. estimates the costs necessary to
comply with current permit limitations to be $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 would be reduced by $63.7, $56.4, and $53.5 million over 30
years for the three mixing scenarios, respectively (PC *24 at
Table l9A, 20A, and 2lA). Margin costs for the instant proposal
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
6 A “major” facility is any facility named on a list
negotiated
between the Agency and the USEPA (R. at 890—1). At present there
are approximately 275
“major” facilities in Illinois
(R. at
1063).
The Board notes that the cost figures cited herein are
different from the figures
originally offered by DENR in Exh.
96. DENR revised its cost 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 the extensive effort DENR has made
to prepare the revised figures in time for their consideration
herein.
106—175
—20—
assumption seems to cause particular difficulties with the costs
assigned to municipal 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 Agency takes something of the same view regarding costs
assigned to municipal dischargers, from which it concludes that
“t’Jhe 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 2lA).
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 proposal.
Benefits
DENR opines that, given the time frame of the instant
proposal, it was not possible for DENR to conduct a formal,
rigorous study of environmental benefits of the instant proposal
(PC #24 at 23). In lieu thereof DENR conducted a spatial
analysis to identify the areas of the State mostly likely to
106 -176
—21—
benefit from adoption of the proposed rules (Id. at 24—36
and
Figures
1—12). On this basis, DENP. finds that waterways in most
of the stream basins of :llinois
are impacted by at least one
tcxic pollutant, and thus that benefits from reduction in
c~scharges 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
to be derived from effective toxics control would 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 whether implementation of the
instant proposal 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 probable
benefit to human health through reduced presence of toxic
substances in the human environment. Given this balance, it
would be difficult to conclude that the instant proposal, in
isolation, is not economically reasonable.
However, the instant proposal is not properly viewed in
isolation. Rather, the instant proposal is but one of two
alternatives, both of which have costs.
If
the instant proposal
is not adopted by the State, then the tJSEPA will impose a
similar, but not necessarily identical, program. The real
question before this Board is therefore whether the instant
proposal is economically reasonable when compared to the only
other alternative, the 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. However, given the relatively little latitude afforded
by the CWA, it is unlikely that either the costs or benefits
106-177
—22—
associated with any alternative program would differ
substantially from those associated with the instant proposal.
Any 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.
MODIFICATIONS IN DOCKET A (SECOND NOTICE) PROPOSAL
Various changes from the First Notice proposal occur in
today’s proposal. These changes are made based upon comment
received subsequent to First Notice. These changes are
identified below in the order in which they occur in the Second
Notice proposal.
Additionally, various changes necessary to conform the
proposal to Code Division standards, as specified in PC #16 and
as requested by JCAR, have been made. Where these are a matter
solely of format, the changes have been made without additional
comment below. Where these possibly affect substance, the nature
of the changes is identified below.
Section 301.106 Incorporations by Reference
Reference to the American Public Health Association’s
“Standard Methods” has been changed to the 16th Edition, 1985.
In the Supplemental Opinion of September 28, 1989 the Board noted
that the 17th Edition was now generally available, and therefore
suggested that the newer edition be cited. However, the USEPA
and the Agency note that the 17th Edition has not yet been
approved by the USEPA (PC #20 at 22). Accordingly, they suggest
that “the Board may want to conform to endorsing only approved
U.S. EPA methods and adopt the 16th Edition of Standard Methods
as the most recent approved edition” (Id.). The Board accepts
this suggestion.
Reference to “Quality Criteria for Water 1986” has been
deleted from subsection (b) in conformity with deletion of this
reference from Section 302.654(b)(7) (see below). In addition,
40 CFR 136 has been added and reference to ATMS Standard D 1126—
86 and ASTr4 Standard D 1253—86 has been deleted in conformity to
the change in citation in the definitions of ‘Hardness” and “TRC”
(see below).
Ten ASTM toxicity testing standards have been added in
response to JCAR’s concern over the lack of identity of ASTM
standards specified in First Notice Section 302.606 (see below).
10(’ ‘17~
—23—
;ect,ion 301.108 Adjusted Standards
A new section has been added at 301.108 which states the
;tatutory language of the Illinois Environmental Act regarding
~djusted standards. It is arguable whether it is necessary to
:epeat statutory language within the body of the Board rules.
‘~evertheless, the Board deems that it is advisable to do so in
:his instance. Substantial discussion has arisen in the context
)f the instant proposal regarding how the adjusted standard
Drocedure interpays with the proposal. Since the adjusted
atandard is a new procedure befc.re the Board, it is likely that
aimilar questions w~: 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 of these current and future questions.
Because new Section 302.108 includes nothing but statutory
language, the Board believes that its introduction at this time
is not inappropriate under the APA.
Section 302.100 Definitions
JCAR requests that the phrase “or other adverse effects” in
the definition of “Acute Toxicity” be clarified (Exh. 122, Part
302, par. 1). In response, the Agency recommends that the phrase
be struck (PC #33 at 2). The result of the Agency’s suggestion
would be to limit the definition of acute toxicity to murtality
caused by a single or short-term exposure. However, the Board
believes that the concept of “other adverse effects” should
remain a critical facet of the definition. Accordingly, the
pharse “or other adverse effects” is retained and a definition of
“Adverse Effect” is added.
The Board notes that the phrase “adverse effect” is also
used in other places within the instant proposal (e.g., Sections
302.603, 302.633, 302.642, 302.645, and 302.663), and that its
definition here accordingly supports all of these usages.
The language “including but not limited to the growth phase,
the reproductive phases or such critical portions of the natural
life cycle of that organism” has been appended to the definition
of “Chronic Toxicity”.
The intent is to clarify the meaning of
“substantial portion” per JCAR’s request (Exh. 122, Part 302,
par. 2) and following the Agency’s recommendation (PC #33 at 2).
The acceptable measurements procedures for Hardness and
Total Residual Chlorine (“TRC”) have been limited to those
specified in 40 CFR 136, which includes the USEPA list of
app::2•vea methods. As IERG notes, there is concern “that adoption
of the definitions as proposed (at First Notice could mislead
dischargers into employing non-approved methods and proposes that
106- 179
—24—
the Board restrict the definition to EPA—approved methods” (R. at
728).
A definition of “Mixing Zone” has been added, consistent
with the content of Section 302.102.
The word “and” in the sixth line of the First Notice
definition of “Toxic Substance” has been replaced with the word
“or”. This is done at the recommendation of the USEPA and Agency
(PC #20 at 22) and is intended to avoid the misconception that
only those substances found in both cited references are to be
considered toxic. Additionally, the phrase “harmful
physiological or behavioral” has been replace by the word
“adverse” in response to JCAR (Exh. 122 at 1).
The definition of “ZID” has been modified to better reflect
the Board’s intentions regarding the nature of ZID’s (see pages
5-12, above) and the movement of the subsidiary definitions of
“immediate” and “rapid” dispersion into the body of Section
302.102(e).
Section 302,102 Allowed Mixing, Mixing Zones and ZIDs
Section 302.102 has been modified in a number of ways to
better reflect the principles of allowed mixing enunciated
earlier in this Opinion. Some rearrangement has also occurred
for the purpose of placing like provisions in proximity.
“Allowed Mixing” has been added to the title of Section
302.102, to better reflect emphasis of the Section on allowed
mixing in general.
At the recommendation of IERG (R. at 1141; Exhs. 109 and
110), the core of the first sentence of existing 302.102(a),
which had been proposed for deletion at First Notice, is here
retained. As the Board has noted above, some confusion regarding
the interplay of effluent standards and allowed mixing has
occurred absent this sentence. Restoration of the sentence is
intended to remove that confusion. Additional clarity is
intended to be added to the sentence by explicitly stating that
the purpose of mixing is to allow for compliance with the
prohibition of Section 304.105 against causing or contributing to
water quality violations, by explicitly stating that mixing is
valid whether or not there is a correspondir!g effluent standard,
and by explicit addition of reference to the discharger’s
obligation under Section 304.102 (see p. 5, ab.ove).
Subsection (b) retains all the basic proscriptions on
allowed mixing present at First Notice. The interested person is
directed to the First Notice Opinion, p. 26-29, for a detailed
exposition of the~e proscriptions. However, subsection (b) as
presented today has been generally modified to allow that the
106-1~30
—25—
proscriptions apply to allowed mixing whether or not a formal
mixing zone has been granted.
Several other clarifying alterations have been made in
subsection (b) at the suggestion of IERG (R. at 1144; Exhs. 109
and 110), the Steel Group (PC #26 at 24), Sauget (PC #27 at 3),
and the Agency (PC #33 at 4-6), in response to JCAR (Exh. 122).
The principal of these is the addition to subsection (h)(4) of
the clause “in sucri a manner that the maintenance of aquatic life
in the body of water as a whole would be adversely affected”.
The Board believes that addition of this qualifier is consistent
with the language of existing Section 302.102(c) and with use of
the identical construction in proposed subsection (b)(7).
A sentence has been added to the end of subsection (h)(8)
and subsection (b)(9) has been inserted. These additions clarify
the circumstance of allowed mixing where thE: 7Q1(J is zero or
where the water quality standard in question is already violated
in the receiving water body (see p. 9, above).
Subsection (c) specifies the requir~ment that water quality
standards must be met outside of any waters within which allowed
mixing occurs. This requirement exists in both the existing and
First Notice Section 302.102(a). It is here given its own
subsection commensurate with its significance. n addition,
subsection (c) contains the proviso that acute toxicity is never
allowed unless there has been provision made for a ZID (see p.
11, above).
Subsection (d) draws together several previously—separated
precepts regarding the regulatory construct nature of a mixing
zone (see p. 6—9, above).
Subsection (e) draws together several previously—separated
precepts regarding ZIDs. Among these is the incorporation of the
definitions of “immediate” and “rapid” into subsection (e).
These at First Notice had been listed only in the definition of a
ZID found at 302.100. In addition, subsection (e) also contains
several changes to the ZID concept based upon the post—First
Notice record. Among these are:
1) The condition that a ZD be “proportional to the width
of the receiving body of water” has been deleted. This
condition is vague to the point of fault (R. at 160—2,
1514—5). Moreover, the Board believes that it is
redundant of several of the conditions in subsection
(b), which apply to ZIDs by virtue of ZIDs being
components of mixing zones.
2) The 1,000 square—foot limitation on ZID size has been
deleted. Such limitation has been reasonably shown to
be arbitrary (R. at 173, 268, 302—305, 329—47, 353,
106--I’ll
—26—
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).
Subsection (f) brings together concepts regarding the
Agency’s and Board’s authorities in the NPDES process as these
relate to mixing zones. The first sentence is drawn from the
recommendation of IERG (Exh. 110, p. 2), and incorporates IERG’s
and the Steel Group’s (PC #26 at 24) recommendation that there be
explicit statement of the Agency’s authority to require mixing
information as part of an NPDES permit application (R. at 1157,
1168-9). The second sentence is the second sentence of First
Notice subsection (d).
Subsections (g) and (h) give expression to the Board’s
intent regarding the controlling status of decisions made in the
NPDES process. Subsection (i) states the burden of proof where
an NPDES.permit is silent regarding allowed mixing or where no
NPDES permit is in effect. See allowed mixing discussion, pages
5—12 above, for discussion of these provisions.
Section 302.208 Numeric Standards for Chemical Constituents
The Section title has been changed by the addition of the
words “Numeric Standards for” before the existing “Chemical
Constituents”. The change is made upon the recommendation of the
Agency (PC #20 at 23). The Board agrees with the Agency that the
revised title more correctly describes the contents of the
Section.
Subsection (c) has been generally amended to better conform
its language to concepts regarding allowed mixing, mixing zones,
and ZIDs, as enunciated previously in this Opinion. In
particular, “mixing zone” is replaced by “waters within which
mixing is allowed”, or a similar phrase, to emphasize that the
conditions apply whether or not a mixing zone has been formally
established. Similarly, it specified that the acute “toxicity
standards apply everywhere except in a ZID.
Several changes have also been made in this Section to
conform the table of subsection (d) to Code Division standards.
Code Division notes:
In Section 302.208(d) please move the table to the
right 1/2 inch. Since you have text at subsection
106— 1~2
—27—
(d), this table equates to text at the next level of
subsection and must be indented appropriately.
(PC
#16 at p. 2).
Due to the required line length of the materials in the
subsection (d) table, the Board finds it impractical to move the
table the requisite distance to the right. In alternative,
therefore, the Board has deleted the leading text at subsection
(d), thus eliminating the need for additional indehtaticn.
Further, the text deleted from subsection (d) has been
incorporated into subsections (a) and (b). This is acccmpl±shed
by adding the phrase “for the chemical constituents listed in
subsection (ci)” after “AS” and “CS”, respectively.
Four additiona changes have been made in subsection (b) to
improve clarity. The first is addition of the word “arithmetic”
before the word “average” to indicate the type of average
intended (PC #20 at 24). The second is the addition of the
phrase “except as provided in subsection (c)” to the end of the
first sentence to provide a parallel structure to that present in
subsection (a). The third is movement of the word “consecutive”
from its position prior to the word “days” to a position prior to
the word “samples”. The third change is made upon ~he
recommendation of the Agency (Id. at 23—4) following questions
raised at hearing concerning the meaning intended by the Agency
(R. at 515, 696, 711—6, 719—21). As the Agency points out, its
intention has been that the samples may be taken over any period
of time equal to or greater than four days, but that no sample
taken during that interval may be omitted (PC #20 at 23—4).
Movement of the word “consecutive” effectuates this intent. The
fourth change consists of replacing “four day period” with
“sampling period” at the end of the last line in conformity with
the third change.
Due to a typographical error, the acute toxicity standard
for lead found at First Notice Section 302.208(d) incorrectly
contained the limit “not to exceed 50 ug/l” (R. at 499). This
should have read “not to exceed 100 ug/1’ per the Board’s current
General Use Standard for lead and per the Agency’s recommendation
to retain this value. There is no justification in the record
for other than the 100 ug/l ceiling. The Board notes that this
errata was identified at hearing in thc Board’s Supplemental
Opinion of September 28, 1989.
Although not so noted in the Code Division’s Public Comment,
the requirement for indentation of tables would also apparently
apply to the table of subsection (e). Because line length does
not restrict the ability to additionally indent this table, the
indentation has been made.
Finally, “mixing zone” has been replaced in subsection (e)
with “waters for which mixing is allowed pursuant to Section
106--183
—28—
302.102” to again specify that it is not required that the
standards be met in allowed mixing waters.
Section 302.210 Other Toxic Substances
Pursuant to a recommendation by IERG (R. at 1154—5), the
second sentence of this section has been changed from:
Individual chemical substances listed in Section
302.208 are not subject to this Section.
to:
Individual chemical substances or parameters for
which numeric standards are specified in this Subpart
are not subject to this Section.
As IERG correctly observes, it has been the intention to limit
the applicability of Section 302.210 to only those substances for
which the Board has not already adopted numeric General Use Water
Quality Standards. Numeric General Use Standards occur at more
locations than just Section 302.208. IERG suggests a remedy by
way of listing in the amended sentence those Sections, in
addition to 302.208, wherein specific numeric General Use
standards occur. The Board has alternatively chosen the
construction above, which it believes is less likely to lead to
error by omission.
Various changes have been made in subsections (a) through
(c) to better express the nature of the criteria derived pursuant
to Subpart F (see pages 12—17, above). Among these is the
replacement of the three occurrences of the phrase “developed
pursuant to” found in First Notice subsections (a)(l), (a)(2),
and (b) by the phrase “validly derived and correctly applied
pursuant to”. The word “presumed” has also been altered to
“deemed” in subsections (a), (b), and (c), and the phrase
“validly derived and correctly applied” has been inserted after
the word “criteria” in subsection (c).
Subsection (ci) has been generally amended to better conform
its language to concepts regarding allowed mixing, mixing zones,
and ZIDs, as enunciated previously in this Opinion. In
particularly, “mixing zone” is replaced by “waters within which
mixing is allowed”, or a similar phrase, to emphasize that the
conditions apply whether or not a mixing zone has been formally
established. Similarly, it specified that the acute toxicity
limitations apply everywhere except in a ZID.
Two new sentences have been added to the end of subsection
(e). These sentences explicitly establish the basis for
challenges to criteria, as previously discussed (see pages 13—14,
above).
106 -U34
—29—
Subsection (f) has been modified to conform it with the
preceding discussion regarding challenges to criteria
calculations (see pages 13—14, above). Additionally, the Board
has deleted that portion of subroction (f) which previoulsy
provided that publication of a criter~on in the Illinoj~s~r
or inclusion of a condition based on a criterion in an NPDES
permit was a necessary precondition to an enforcement action
alle~ingexcursion of the criterion as a basis for violation of
the tc:~icity water quality standard.. AE the complainant bears
the burden of establishing the vaitdity and correctness of any
criterion derived from the regulation, upon reflection
the
Bcarh
finds that no’ prejudice would result to a respondent whc wcud
still be subject to suit for violation of the “no toxic substance
in toxic amount standard” regardless of derivation of any
criterion.
The three uses of the modifier “enforcement” before the word
“action” have been deleted from suosection (f), pursuant to the
recommendation of IEPG (R. at 1140—1; Exh. 109, p. 4). This
change is intended to avoid controversy over what constitutes an
enforcement action. Finally, to enhance readability, Section
302.210(f) has been divided into subsections.
Reference to the Act citing the Illinois Department of
Agriculture and Illinois Department of Public Health has been
deleted from subsection (g). As the Code Division notes, this
Act
was
repealed by P.A. 81—197, effective July 1, 1980 (PC #16
at p. 2). The name of the Act re’erenced with the Department of
Energy and Natural Resouoes has also been added, per the request
of the Code Division (Id.).
Section 302.603 Definitions
The word “substantial” has been replaced by the words
“statistically significant” in the definition of “Carcinogen” in
accordance with JCAR’s request for clarification of “substantial”
(Exh. 122, Part 302, par. 14; PC #33 at 10).
The definitions of “LOAEL” and “NOAEL” have been amended in
general accordance with the recommendation of the Steel Group
(Exh. 119 at p. 3). A principal change is reference to “adverse
effects”, as defined in Section 302.100.
Section 302.606 Data ~equirements
JCAR questions the sufficiency of identification of the ASTM
methods cited at First Notice Section 302.606 (Exh. 122 at par.
18). In response, the Board adds citation to specific ASTM
standards, as incorporated by reference in Section 301.106.
106 185
—30—
Section 302.615 Determining the Acute Aquatic Toxicity
Criterion
-
Toxicity Independent of Water
Chemistry
The word “be” has been inserted at the end of line 6 of
subsection (f). As noted at hearing (R. at 523, 701) and in the
Board’s Supplemental Opinion of September 28, 1989, this change
is necessary to supply grammatical sense.
Additionally in subsection (f), the First Notice use of the
word “families” has been replaced with the word “taxa” in lines
9, 11, 13, 14, 17, and 18 (PC #20 at 24). These changes are made
at the request of the Agency, which notes:
Taxonomic families are not consistently used when
listing required types of organisms to be used in
toxicity tests. Sometimes organisms from a specific
family are required while other requirements can be
satisfied with any member of an Order or Phylum. The
term “taxa” refers to any unit of taxonomic hierarchy
and is therefore more appropriate than the
restrictive term “family”. (R. at 701).
The phrase “family from a” has also been stricken from
subsection (f)(2), in conformity with the same argument (R. at
702).
The last sentence of subsection (f) has also been changed
from:
When toxicity.data on the three taxa listed are
available, they must be used along with the data sets
obtained for subsection (a)
to:
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.
The change is made principally to address the incorrect reference
to subsection (a) used in the First Notice version. This
reference should properly be to Section 302.612 (PC #8, Proposal
p. 12). The remaining changes to the sentence are ntended
solely to provide greater clarity.
Section 302.618 Determining the Acute Aquatic Toxicity
Criterion
-
‘Toxicity Dependent on Water
Chemistry
IERG has expressed concern as to whether First Notice
subsections (b) through
(j)
of Section 302.618 mandate adherence
1,06-106
—31—
to a log—log relationship in all circumstances, whereas
subsection (a) clearly states that other relationships
may
be
used (e.g., R. at 1244, 1254-6). IE~Ghas also questioned some
of the formulations used in Section 302.618 a~dcompanion Section
302.621 (Exh. 111 at 4—5).
The Board fully understands thar Section 302.618 is
drawn
essentially unaltered from USEPA guidance documents. The Board
also appreciates mat toe Agency’s
purpose in toe construction it:
offers for Section 302.618 is to, Dy wa~of example, “fami1iariz~
interesteu parties with a proven way in which these relationships
between a substance’s toxicity ano son’~’ water quality constituent
are treated” (PC #25 at 20). The Board is also aware t”~at in a
scientific context an investigator
would
proceed in manner such
as outlined in the Agency’s proposed Sectic’n 302.612. Finally,
the Board is aware, as the Agency properly points out, that the
number of possible relationships is “almost infinitely varied’ in
a mathematical sense, and thus not easily amenable to treatment
other than proposed by the Agency (Id.).
Nevertheless, the Board believes that ~ect~on 302.618 co be
made both more explict and more clear, as proposed by IERG
(PC
#29 at Exhibit A). Accordingly, the Board
is
today proposing
revised language for Section 302.618. The new form of Section
302.618 follows the general outline of IERG’s proposal, with the
only changes intended to provide still greater clarity an~ to
conform the IERG proposal
with
Code
Division
strictures regarding
indentation and subscripting.
Section 302.621 Determining the Acute Aquatic Toxicity
Criterion
—
Procedure for Combinations of
Subs t a nces
At the recommendation of the Agency (R. at 523, 702—3), the
last sentence of subsection (b) has been modified for the purpose
of increased clarity. At First Notice this sentence read: “If
data are not available for resident or indigenous species, data
from 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 replacement sentence reads: “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 302.630 Determining the Acute Chronic Toxicity
Criterion
—
Procedure for Combinations of
Substances
An identical substitution of sentences has oeen made in
Section 302.630(b) as has been made in Section 302.621(b) (see
above).
106- 107
—32—
Section 302.642 The Human Threshold Criterion
The wording of the first sentence has been altered to make
clear that the Human Threshold Criterion is a concentration of
substance.
Section 302.645 Determining the Acceptable Daily Intake
The title of this Section has been changed and shortened to
reflect the actual content ot the Section.
Section 302.648 Determining the Human Threshold Criterion
The Steel Group recommends replacement of the First Notice
incidental “ingestion” factor of 0.01 liters per day with a new
factor of 0.0025 liters per day, as found at proposed Section
302.648 (Exh. 119 at 7; PC #26 at 27). The Steel Group contends
that the First Notice factor is too conservative, since it does
not recognize that Illinois climate does not permit year-around
swimming. The Steel Group apparently arrives at its recommeded
factor by reducing the First Notice factor in proportion to the
number of days Illinoians are expected not to swim (Id.).
Initially, the Board notes that the factor in question
is
not simply an “ingestion” factor, as apparently assumed by the
Steel Group. Rather, it is a factor for “incidental exposure
through body contact or ingestion” (proposed Section 302.648,
emphasis added). Thus, it is intended to allow not only for
ingestion exposure, but for exposure through other routes, such
as dermal absorption (e.g., PC #18 at 2; PC #25at 21), as
well. Moreover, the First Notice incidental exposure factor
expressly is not limited to exposure related to swimming, but
rather as well to “other recreational activities in General Use
waters” (proposed Section 302.648), such as boating and fishing,
which have much less restricted “seasons” where they have seasons
at all.
However, the Board believes that the Steel Group’s
observations are well take’n to the extent that not all Illinois
waters are used for either swimming or other recreational
activities because of natural limitations of the water bodies.
For these waters the 0.01 L/d lifetime average consumption rate
would indeed appear to be too restrictive. The Board recognizes
this circumstance by redefining the incidental exposure rate as
follows:
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 eqnal to 0.01 liters per day (L/d) which
represents incidental exposure through contact or
ISO
—33—
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
USC
waters.
Section 302.651 The Human Nonthreshold Criterion
The acceptable cancer risk lev~lsassociated with single and
ad~itive substances are explicitly stated to be
1 in
1,000,000
and 1 in 100,000, respectively. At First Notice these figures,
as used in related Sections, were 1 in 100,000 and I in 10,000,
respectively.
IWF/NWT
contends that the First Notice singI~—substance risk
level “is
not.
adequately protective of human hea~,,nand does not
represent a socially acceptable cancer risk level” (PC #18 at
2).
IWF/NWF
further contends that USEPA recommends a 1 in
1,000,000 risk level (Id.). In contrast, both the Agency and
Sauget contend that the 1 in 100,000 level is well within the
range commonly used in cancer risk assessments (PC #11 at 21—2;
PC #25 :.t 22-23 and Attachment 6). They also argue that the
USEPA guidelines do not recommend 1 in 1,000,000, but rather a
number ranging between 1 in 10,000 and 1 in 10,000,000 (Id.).
The Board does not contest that the 1 in 100,000 value would
be
within
the range used in some cancer risk assessments.
Similarly, however, the 1 in 1,001,000 value is also within this
range. In general the Board agrees with IWF/NWF that the 1 in
1,000,000 level achieves more adequate protection of human health
and is the more socially acceptable cancer risk level The 1 in
100,000 additive risk level is chosen as one—tenth of the single—
substance risk factor, consistent both with accepted practice and
with the theory of additivity (PC #25 at 23—5).
The first sentence of the Section has also been slightly
modified consistent with similar changes to the first sentence in
Section 302.642 (see above).
Section 302.654 Determining the Risk Associated Intake
The title of this Section has been changed and shortened to
reflect the actual content of the Section.
The cancer risk levels, as introduced in Section 302.651
(see above), are explicitly stated in the introductory section
and in the definition of “K” in subsection (b).
The units for the Risk Associated Intake (“RAI”) have been
corrected to milligrams per day. within the First Notice rule
the units were incorrected expressed as milligrams per kilogram—
day.
106-489
—34—
The equation in subsection (b) has been recast to conform it
to the format used for other equations within the present Part.
There is
no
change in the content of the equation.
The word “must” has been replaced by the word “shall” in
subsection (b)(l), as recommended by the Agency (R. at 526).
At the recommendation of the Agency (FL at 527—8, 695, 705-
61, reference
to
“Quality Criteria
for Water
1986” in First
~otice subsection (b) (7) has been replaced
by
reference to the
USEPA document “Mutagenicity and Carcinogenicity Assessment of
1,3—butadiene”. The latter reference is the same reference used
in subsection (b)(2), and is the more appropriate reference for
pr•ovid’no the guidance required in subsection (b)(7). Reference
to
“Quality
Criteria for Water 1986” has also been deleted from
the Inoorporations by Reference, Section 301.106, in conformity
with the change to subsection (b)(7).
Additionally, various rephrasings have been made to provide
b?:ter clarity to the Section in general.
Section 302.657 Determining the Human Nonthreshold Criterion
The cancer risk factor specified in the definition of “RAI”
has been decreased to 1 in 1,000,000, consistent with the
discussion above. In addition, the definition of “W”, as it
relates to incidental exposure, has been modified consistent with
the modification of this term in Section 302.648 (see above).
Section 302.663 Determination of Biocentration Factors
The equation for calculating the bioconcentration factor
found at First Notice Section 302.663(c) has been altered to a
generic form in response to questions regrading the appropriate
constants to be used in the equation (R. at 1197, 1423; Exh. ill
at 6). Additionally, it is specified that the constants shall be
—0.23 and 0.76, which are the constants recommended by the Steel
Group and IERG (Id.), unless scientifically valid alternative
constants can be demonstrated.
Section 302.669 Listing of Derived Criteria
Two subsections, (b) and (c), have been added to the First
Notice language. Subsection (b) notes that the criteria
published in the Illinois Register may at any time be proposed
for adoption as numeric standards. Subsection (c) specifies that
the Agency shall keep appropriate records of its criteria
derivations, as necessary support to any appeal.
106—190
—35—
Section 304.362 Horseshoe Lake Mixing Zone and ZID
Section 304.362, as proposed as First Notice, has been moved
to Docket B. Interested persons are directed to the Docket B
Opinion and Order of this date for discussion.
Section 309.103 Application
—-
General
Code Division requests that the references to “NPDES” and
“Agency” in Section 309.103 (a) and to “CWA in Section 309.103(d)
be spelled out in fail r’t some place withLn Part 309. This Code
Division request is made in spite of the tact that each of these
terms is fully defined in the general definitions portion of
Subtitle C, specifically at Sections 301.325, 301.215, and
301.240, respectively. Pursuant to Section 301.200 the
definitions of Part 301 apply to Subtitle C aenerally. This
notwithstanding, in acquiescence to Code Division’s request, the
Board is today fully spelling out ohs three terms.
The Board notes that the terms are first used within Part
309 at Sections 309.101 and 309.102, and it would seem that the
sensible position at which to fully spell out the terms, if at
all, would be there at their first usage. This would be the
option preferred by the Board. However, it would necessitate
opening Sections 309.101 and 309.102, which have not previously
been given First Notice in this proceeding. JCAR proposes to
object to this tactic even though the only purpose of opening
Sections 309.101 and 309.102 would be to spell out the
abbreviated terms. The Board is therefore forced to take the
only avenue available to it, which is to fully spell out the
terms within Section 309.103.
A clarification change has also been in subsection (a)(3),
where the phrase “Shou~daquatic toxicity be apparent” has been
replaced with “If this toxicity testing shows the effluent to be
toxic”.
Section 309.152 Toxic Pollutants
Amendments to Section 309.152(a) and (b), as proposed as
First Notice, has been moved to Docket B. Interested persons are
directed to the Docket B Opinion and Order of this date for
discussion.
Miscellaneous
Among miscellaneous modifications is the replacement of the
lower case “I” with the upper case “L” in abbreviations of the
form “mg,’L” (milligrams per liter) and “L/d” (liters per day).
This is
done to prevent confusion of
the
lower case “1”
with the
numeral “1”. This modification occurs in many places within the
proposed rule.
106 191
—36—
PROPOSED MODIFICATIONS NOT ACCEPTED FOR SECOND NOTICE
The Board declines to accept various requests to modify the
First Notice proposal. The bases of these actions are identified
below.
Deletion of Severability Clause found at Section 301.108
The Steel Group recommends that the severability clause
added by the Board at First Notice be stric~en (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 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
flaunted if, through the Board’s failure to affirmatively assert
otherwise, a judgement 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.
Village of Sauget ZID Demonstration at Section 302.102
Sauget requests that the Board adopt a new subsection within
Section 302.102 “which would permit the Village of Sauget to make
a
demonstration of a ZID” (R. at 1473). Sauget opines:
The reason that we make this proposal is that
Sauget has a very real concern that if the 1,000 foot
limitation on a ZID is finally adopted by the Board
as part of the rules, that that might be relied upon
in issuing a new permit to Sauget.
And that if that were to happen
——
there might be
effluent limits that suddenly are engraved in stone
somewhere in Washington, D.C. from which we would
never be able to backslide.
R. at 1475—6
To the extent that Sauget’s concerns arise from the 1000
square—foot limitation on a ZID proposed at First Notice, the
Board observes that this limitation is today deleted from the
proposal (see pages 25—26, above). This appears to be sufficient
to address Sauget’s concerns (PC #27 at 5).
106—192
—37-
However, to the extent that Sauget’s concerns arise from
uncertainty regardiro “antihacksliding”, the Board observes that
it shares the general concern, but does not believe that Sauget’s
proposal clarifies that uncertainty either for Sauget or for the
broader audience desirous of clarification. As the record
indicates, antibackslidina is an issue under interpretation by
the USEPA, but that no official release of the interpretation has
yet been made (e.g., P. at 1107—9). It il the Board’s
understanding that, since antibackslid~na ~,s a provision of the
Clean Water Act, Illinois discharaers will be subject to the
USEPP~’s official interpretation notwithstanding what might be
done in the instant proceeding.
“Flexibility” Regarding Section 302.102(b) Limitations
0CM contends that the limitations proposed on allowed mixing
at Section 302.102(b) are unnecess~irilyrigid and inflexible (PC
#28 at 2-3)
.
As remedy, OMC suggets that the Board make no
alteration to the existing allowed mixing rule, or, in the
alternative, either change some “must nots” to less explicit
prohibitions (Id. at 3) or add to the Section a provision
allowing the Agency to in effect waive certair. of the limitations
upon proper showing by a permittee (Id. at 4).
The Board initially notes that it does not accept that the
Section 302.102(b) limitations are unnecessarily rigid or
inflexible. Each of the limitations is fully appropriate for a
rule of general applicability such as Section 302.102.
The Board also strongly believes that it is inadvisable to
leave Section 302.102 in its present form. As the abundant
record regarding Section 302.102 clearly attests, this Section
has been the source of much confusion. It is the Board’s
intention to remove as much of this confusion as is possible.
For this reason we proposed a major reorganization of Section
302.102 at First Notice, and today offer further fine tuning and
extensive discussion (see pages 5—12, above).
We do not view as meritorious OCM’s suggestions that we
either soften the prohibitions of Section 301.102(b) or allow the
Agency to waive certain of the limitations. We believe each of
the limitations is necessary to insure that allowed mixing
produces the minimum detrimental environmental impact, as a rule
of general applicability. The Board does note, as OMC is
certainly aware, that the “adjusted standard” provisions at
Section 28.1 of the Act allow any person to obtain relief from a
rule of general applicability where appropriate justification can
be shown.
106—103
—38—
Allowed Mixing for Section 302.203 “Offensive Conditions”
IERG requests 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 (P. at 1148—9). This the Board
declines to do. The Board believes that mixing is a concept not
ap~licable to some of the “~3ffensiveConditions”, such as sludge
or bottom deposits, floatio~ deh~is, and plant or algal growth,
since these are not diluta~e i the receiving water. For the
other listed “Offensive Con •iti. ..s” the Board finds that the
water quality standard of I ~2.2~33 is no more restrtc~tve than the
effluent standard found at 35 Ill. Adr.. Code 304.106°. Since
mixing h~sbeen allowable pursuant to 302.102 only when “a water
quaity standard is more restrictive than its corresponding
effluent standard”, the Board views mixing as never hav:.ng 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.
Equation for Cadmium AS at Section 302.208
The Board at First Notice requested that the Agency comment
on whether the “A” term in the equation defining the acute
toxicity standard for cadmium at i~02.208was the correct term.
The Board accepts the Agency’s explanation. As the Agency notes,
the term as proposed does differ from the term present in the
cadmium criterion document (Exh. 5). However, 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 (P. 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 was proposed to the
Board by the Agency and adopted by the Board at First Notice. No
change is today made.
Background Concentration at Subsection 302.210(h)
IERG proposed a rule at Section 309.141(i) (Exh. 59 at 16)
which it subsequently reproposed for plscement at Section
302.210(h) (P. at 1154). The proposal language addresses a
dischargers responsibilities when in—stream background
8 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.
106 .194
—39—
concentrations are high. IERG opines “by remaining silent as
to background it could be concluded that the Board intends that a
discharger be responsible for all contamination in
a water
body
whether or not the contamination was resultant from that
dischargers effluent stream” (P. at 1153).
The Board believes that the matter of background
concentrations is already adequately addressed in Section
304.103, and that repeat of the provisions of that Section is not
needed within Part 102.
Definitions at Section 302.603
Both the Steel Group and the Agency propose that the
definition of “carcinogen” at First Notice Section 302.603 could
be made more detailed (R. at 1387—7; Exh. 119 at 2—3; PC #25 at
14—15; PC #26 at 22). The Board agrees. However, a practical
problem is raised in that the replacement definition recommended
by the Steel Group and the Agency, as well as the alternative of
adding a new Section 302.640 as proposed by the Agency (PC #25 at
14 and Attachment 3), both require an incorporation by
reference. The Board is prohibited under the APA from making a
new incorporation by reference at this stage in this proceeding.
The Board itself has considered whether the Steel
Group/A~ency definition might be inserted in Docket B. However,
this seems impossible since the definition is contained in and
contains reference to Sections not yet adopted. Thus, the Board
cannot propose to amend the definition until the pertinent
Sections are themselves promulgated (i.e., after final action in
the instant Docket). Although this entire matter smacks of a
bureaucratic catch—22, nevertheless the Board’s hands are tied.
The Board believes that the only course of action at this
time is to retain the First Notice definition. While the Board
accepts that this definition may not be the ideal definition,
there is no basis to doubt that it is a fully workable
definition. The Board would, of course, entertain appropriate
modifications of the definition when a mechanism for modification
becomes ripe.
An IERG witness, Dr. Philip B. Dorn, apparently recommends
replacement of the definitions of “EC—SO” and “LC—SO” found at
First Notice 302.603 (Exh. 111 at 8). However, no specific
replacement language, nor analysis of how replacement would
better the existing definitions, has been offered. The Agency
believes that the “current definitions are valid and functional”
(PC #25 at 9), which the Board accepts in the absence of contrary
evidence.
Dr. Dorn also recommends replacement of the terms “NOAEL”
and “LOAEL” with “NOEL” and “LOEL”, respectively, apparently
106 1.5
—40—
generally within Subpart F (Exh. ill at 3). The Board sees no
apparent justification for, nor analysis of the effects of, this
general replacement (P. at 1421—2), and accordingly declines to
make it.
Acute/Chronic Patio at Section 302.627
The Board itself proposed the possible change of the value
for the acute—chronic ratio specified in Section 302.627, the
change to be from t~eFirst ~otice value of 25 to some larger
number (see First Notice Opinion at p. 32). Comment on this
matter at post—First Notice hearings (R at 524—5, 703—5, 718)
and in ~2 #22 and PC #27 at pages 6—9 convinces the Board that
the value of 25, as proposed at First Notice, is appropriate.
Exposure Assumption at Sections 302.648 and 302.654
IWF/NWF questions whether additional safety factors should
be built into the Human Threshold Criterion calculation at
Section 302.648 and the “uncertainty factor” now found at Section
302.654(b)(7) (PC #18 at 2). The Agency responds, and we accept,
that safety factors are already built into these Sections, and
there is no “substantial data base which quantitatively supports”
more restrictive safety factors (PC #25 at 21—22).
Lipid Factor at Section 302.666(a)(2)
IERG through Dr. Dorn questions the justification for the
7.6 percent lipid factor cited in Section 403.666(a)(2) (Exh. 111
at 6). The Agency responds that this value represents the mean
lipid content of the fathead minnow (PC #25 at 11), a standard
bioassay species. The Agency also points out that a correction
mechanism is provided if a species other than a fathead minnow is
used (Id.). On this basis the Board sees no justification for
altering the cited factor.
IWF/NWF “Application Issues”
IWF/NWF raises in both Public Comments #6 and #18 several
issues characterized as “application issues”. Among IWF/NWF’s
concerns is that special restrictions should occur where the
toxicant is either a persistent or bioaccumulative substance.
Among the suggested restrictions is a prohibition against mixing
zones for discharges to Lake Michigan for any persistent or
bioaccumulative substance (PC #18 at p. 4). The Agency observes
as follows, with which the Board concurs:
IWF/NWF expressed concern over application of these
regulations to Lake Michigan. The Agency continues
to support the position that these water quality
standards should apply to Lake Michigan in the same
manner that the current General Use standards
106 196
—41—
apply. By operation of Sect!cn 302.501 they are
cummula~ive with Public and Food Processing Water
Supply Standards and Lake Michigan specific standards
in their applicabitity to Lake Michigan. At the
present time a USEPA initiative is underway to
develop national water quality criteria for specific
application to the Great Lakes. The purpose of the
effort as to have nationally developed and. publis~’od
criteria oy 1992 to assast Great Lakes Stateu an
conductinc their r~ext triennial review. Issues of
r.lixing zones and antidegradation impiemenrat on
procedures are incThded on the agenda for the
initiative. Environmental Agencies from each Great
Lake State and the NWF, along with representatives of
other interest groups and agencies are participants
in this initiative, Until such time as the national
criteria become available, the Agency recommends the
standards emerainq fr tm this proceeding be applied to
Lake Michigan in the same manner they would be
applied to General Use waters. (PC #25 at 25—26)
IWF/NWF’s request that an “antidegradation policy” be
incorporated within the instant amendments is apparently based on
IWF/NWF’s understanding that this policy is absent in the current
Illinois surface water regulations (P.C. #6 at p. 6 and PC #18 at
p. 7). However, the Board notes that existing regulations do
contain a nondegradaticn rule. The Board is uncertain as to
whether the IWF,/NWF is a are of this existing rule, whether the
IWF/NWF considers the existing rule to be something different
than an “antidegradation policy”, and whether and how the IWF/NWF
would have the Board amend the existing nondegradation rule. At
any rate, neither nondegradation nor antidegradation are issues
raised by the instant need to comply with Section 303(c)(2)(B) of
the CWA. Likewise, there is insufficent record developed
on
this
matter to justify the Board’s proceeding on the subject in the
instant docket.
“Tiered Approach” to Toxicity Testing
IERG witness Dorn noted his concern, based upon analysis of
302.Subpart, regarding the absence of allowance for a tiered
approach to toxicity testing (P. at 1189). As the Agency points
out, the tiered approach is available in the instant rule
pursuant to provisions of Part 309 (PC #25 at 8, 10). The Board
agrees, and cannot find that the proposal is in any way deficient
in this regard. The allowance for tiered testing also apparently
addresses Dr. Dorn’s questions regarding additivity (Exh. 111 at
4—5; PC #25 at 11).
Inclusion of Controls on Sediments
It has been suggested that the proposed toxic control
program is not complete because it does directly address control
106 197
—42—
of toxic substances in aquatic sediments (R. at 30; Exh. 24 at
Attachment III). The Board does not disagree with this
suggestion. However, the Board believes that the direct control
of toxic substances in sediments is beyond the CWA mandate which
the instant proposal is intended to address.
IT IS SO ORDERED.
Board Member J.D. Dumeile concurred.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board; hereby certify that the above Ocinion was adopted on
the ~
day of
(,Lo~c
~
,
1989, by a vote of
~
/
1/)
U
.
Dorothy M.,’Gunn, Clerk
Illinois Pollution Control Board
106—193
