ILLINOIS POLLUTION CONTROL BOARD

PROCEDURAL HISTORY
Summary of Public Comments
2005 FIRST NOTICE COMMENTS
1. Opposition to the Proposed Section 302.207(d)
The Radium Water Quality Standard Expressed as a Long-Term A
1. Whether Consideration of Economic Factors Was Proper
2. Sediment Monitoring
New Data Submitted by the City of Joliet
Radioactive Water Treatment Residuals
Consideration of Economic Factors
1. Radium General Use Water Quality Standard Expressed as a Lon
Public and Food Processing Water Supply Standard
CONCLUSION
1. ORDER

December 15, 2005

IN THE MATTER OF:

)

REVISIONS TO RADIUM WATER QUALITY

)

R04-21

STANDARDS: PROPOSED NEW 35 ILL. ADM. )

(Rulemaking – Water)

CODE 302.307 and AMENDMENTS TO

)

35 ILL. ADM. CODE 302.207 and 302.525

)

Proposed Rule. Second Notice.

OPINION AND ORDER OF THE BOARD (by N.J. Melas):

Today the Board proposes revisions to the general use water quality standard for radium

based on new facts and public comments the Board has received since the 2005 second first-

notice publication. At first notice in 2004, the Board adopted the proposal filed by the Illinois

Environmental Protection Agency (Agency). At second first notice in 2005, the Board proposed

a general use water quality standard of 3.75 picocuries per liter (pCi/L) radium 226 and 228

combined (combined radium) applicable to all general use waters of the State. In addition, the

Board proposed a general use water quality standard of 30 pCi/L combined radium applicable to

waters receiving discharge from publicly owned treatment works (POTWs). The 30 pCi/L

standard applied from the point of discharge to one mile downstream of the discharge outfall and

was incorporated as a new Section 302.207(d).

The Board adopts the proposed rule for second-notice review by the Joint Committee on

Administrative Rules (JCAR) pursuant to the Illinois Administrative Procedure Act (5 ILCS

100/1-1

et seq

.). The Board received 13 public comments subsequent to the 2005 first-notice

publication, and the proposal adopted here is substantively changed from that adopted in the

2005 first notice opinion and order in light of those comments. Today the Board amends the

general use water quality standard for combined radium 226 and 228 adopted for the 2005 first

notice. The Board retains the standard of 3.75 pCi/L combined radium 226 and 228, but sets the

standard as an annual average value, rather than an instantaneous maximum standard.

The Board finds that the changes to the Board’s 2005 first-notice proposal adopted today

are warranted. The comments received during the 2005 first-notice period clearly indicate a

need for further amendments to this section. The record consistently demonstrates a need to

maintain a general use water quality standard, protective both of human health and the

environment. The Board invited and received comments on the new Section 302.207(d)

proposed the 2005 first notice. The additional data and comments received enhanced the record

with respect to actual levels of combined radium contained in water before and after treatment by

Northern Illinois publicly owned treatment works. The Board finds that based on the record,

today’s proposal meets the Board’s stated objectives while also tailoring the general use water

quality standard for radium to the nature of radionuclides in Illinois ecosystems.

In this opinion, the Board provides the procedural history of this rulemaking, an

overview of the public comments received, and a discussion of the second-notice proposal.

OVERVIEW OF THE PROPOSED CHANGES IN RADIUM WATER QUALITY

STANDARDS FOR SECOND NOTICE

The Board modifies the general use water quality standard for combined radium 226 and

228 adopted for the 2005 first notice. The Board retains the standard of 3.75 pCi/L combined

radium 226 and 228, but sets the standard as an annual average value, rather than an

instantaneous maximum standard, as proposed for the 2005 first notice. This standard, as before,

applies to all general use waters of the State, including stream segments that receive discharge

from POTWs, as well as the Lake Michigan Basin. In addition, today’s proposal eliminates the

separate water quality standard of 30 pCi/L adopted at second first notice for stream segments

that receive discharge from POTWs. Finally, the Board adopts a 5pCi/L combined radium 226

and 228 standard for Public and Food Processing Water Supplies as an instantaneous maximum

standard for public and food processing water supply intakes.

The Board finds that today’s proposal for second notice more precisely achieves the

Agency’s goal of relieving a regulatory burden for many existing POTWs that may not comply

with the existing general use radium water quality standards while remaining protective of the

most sensitive designated use of the State’s waters. Dischargers such as POTWs will benefit

because compliance with the proposed standard is based on a long-term average.

PROCEDURAL HISTORY

On January 13, 2004, the Agency filed a proposal to amend Part 302 of the Board’s water

quality standards.

The Agency proposed to change the general use and Lake Michigan water

quality standards for radium from 1 pCi/L radium 226 to 5 pCi/L combined radium 226 and 228

and apply the proposed standards specifically to surface waters used for public and food

processing water supplies. According to the Agency, these changes would make the radium

water quality standards consistent with the federal finished water maximum contaminant level

(MCL) and ensure the protection of surface water intakes for raw drinking water in the State.

The Agency argued the proposed changes would also relieve a regulatory burden for many

existing POTWs that receive, treat, and discharge wastewater from public water supplies that

remove radium from high radium groundwater.

The Board accepted this proposal for hearing on January 22, 2004. The Board has held

five days of hearings before the Board hearing officer, members, and staff. The first hearing was

held on April 1, 2004, at the James R. Thompson Center in Chicago.

The second hearing was

The Agency’s Statement of Reasons included in the rulemaking proposal will be cited as

“Statement at _.”

The transcript of the first hearing will be cited as “Tr.1 at _.”

held on May 6, 2004, at the Board’s offices in Springfield.

Both hearings allowed the

proponent and any other interested party the opportunity to present testimony on the merits and

economic impact of the rulemaking proposal.

On June 2, 2004, WRT Environmental (Illinois), L.L.C. (WRT Environmental) moved

the Board for an additional merit hearing. On July 8, 2004, the Board adopted the Agency’s

proposal for publication of first notice in the

Illinois Register,

but noted by hearing officer order

that the Board would grant WRT Environmental’s motion for a third hearing. First notice was

published in the

Illinois Register

on August 6, 2004. 28 Ill. Reg. 32, pg. 10887,

eff

. Aug. 6,

2004. First-notice publication in the

Illinois Register

began a public comment period for

interested persons to file comments with the Board. The Board granted the motion and held a

third hearing on August 25, 2004, in Springfield.

The Board gave notice of hearings a fourth

time and they continued on October 21 and 22, 2004, in Chicago.

On April 7, 2005, the Board adopted the proposal, with modifications, for publication of

the 2005 first notice in the

Illinois Register

. The 2005 first notice was published in the

Illinois

Register

on April 11, 2005. 29 Ill. Reg. 17, pg. 5782,

eff.

Apr. 11, 2005. Second first-notice

publication began another 45-day public comment period. On May 13, 2005, the City of Joliet

(Joliet) moved the Board to extend the public comment period through August 15, 2005. The

Board granted the motion and extended the comment period as requested.

The Board received 12 additional public comments during the second first-notice

comment period. After the close of public comment, WRT Environmental moved the Board for

leave to file a supplemental public comment, accompanied by the supplemental public comment.

The Board grants WRT Environmental’s motion and accepts the supplemental public comment.

Summary of Public Comments

The Board received 13 additional comments subsequent to second first-notice

publication, for a total of 52 public comments in this proceeding. The additional comments

consist primarily of those that oppose the Board’s second first-notice proposal and those that

support the proposed standard of 3.75 pCi/L combined radium, but oppose the separate 30 pCi/L

standard up to one-mile below POTW discharges.

Those that submitted comments opposing the Board’s proposal include the directors of

Citizens Against Ruining the Environment (CARE) (PC 40, 42, and 43), the City of Joliet

(Joliet) (PC 46), and the Fox River Reclamation District (PC 51). The following commenters

reject the proposed Section 302.207(d) and offer support for the 3.75 pCi/L standard, however,

propose that compliance be measured as a long-term average: the United States Environmental

The transcript of the second hearing will be cited as “Tr.2 at _.”

The transcript of the third hearing will be cited as “Tr.3 at _.”

The transcript of the fourth hearing will be cited as “Tr.4 at _.”

Protection Agency (USEPA) (PC 41), the Sierra Club and the Environmental Law and Policy

Center (Envrionmental Groups) (PC 44), WRT Environmental (PC 48), and the Illinois

Environmental Protection Agency (PC 50).

2005 FIRST NOTICE COMMENTS

During the 2005 first notice comment period, the participants in this rulemaking

discussed both the 3.75 pCi/L general use water quality standard as well as the 30 pCi/L standard

for streams receiving discharge from POTWs that the Board adopted at the 2005 first notice. A

review of the public comments reveals that a majority of the participants supported the general

use standard and the most disagreement arose over the separate standard provided for POTWs.

Below the Board discusses the comments and provides reasons for today’s divergence from the

2005 proposed rule adopted for first notice. Because the Agency is the proponent of this

rulemaking, the Board will discuss the Agency’s 2005 first-notice comment separately below.

Opposition to the Proposed Section 302.207(d)

In its public comment, the USEPA expressed concern that the proposal did not

adequately demonstrate that 30 pCi/L within a one-mile mixing zone would provide a level of

protection consistent with the 3.75 pCi/L value, nor any other independent level of protection for

the designated use. The USEPA also states it is not clear how the proposed 30 pCi/L standard

would be implemented to protect possible downstream public water supply intakes.

In its public comment, CARE strongly objects to the addition of Section 302.207(d) of

the Board’s 2005 proposal. PC 45. CARE states that proposed Section 302.207(d) is premature

and will be until 2009. Non-compliant public water suppliers have until 2007 to come into

compliance with the Federal drinking water standards. According to CARE, by the end of 2008,

many of the problems anticipated by the Board’s proposed Section 302.207(d) may be resolved.

Therefore, CARE advises that the Board abstain from establishing a rule like 302.207(d) until

public water supplies achieve compliance since many of the techniques they employ may

eliminate or substantially reduce the amount of radium in wastewater.

CARE also states that the proposed Section 302.207(d) establishes a “de facto” mixing

zone without having followed the well-developed regulatory approach the Agency must follow

in reviewing mixing zones. CARE contends that an approach that allows for regulatory

flexibility under specific circumstances as judged on a case-by-case basis is “far preferable than

the categorical, ‘carte blanche’ for POTWs contained in proposed rule 302.207(d).”

Joliet commented that the Board ignored the recommendation of the Division of Nuclear

Safety (DNS), and instead “gave great weight to the testimony provided by Water Remediation

Technology.” The Board’s proposal, however, does not directly follow either party’s proposal.

The standard proposed by the DNS was a standard applied to cleanups of spills containing

radium. A general use water quality standard must take into consideration the exposure of the

most sensitive use of the water body to the radium levels over a lifetime. In particular, the

Board’s standard reflects the effects of radium on the reproductive cycles of aquatic wildlife.

On this point, Joliet states that it is unlikely that sensitive species live in the receiving

streams of plants that are expected to violate the proposed standard. PC 46 at 5. For example,

Joliet states that Don Blancher, PhD of Toxicological and Environmental Associates, Inc. opined

that low flow streams represent poor or unsuitable habitat for species like muskrat and the length

of time for exposure in these areas would be minimal.

. Dr. Blancher based his determination

on the U.S. Fish and Wildlife Services Habitat Suitability Index Model for muskrat which

indicates that muskrat habitat is in streams with flow rates of 0.4 c.f.s. to 30 c.f.s. in waters with

depth greater than 18 inches.

Joliet argues that because no sensitive species live downstream of impacted treatment

plants in Illinois, there is no reason to establish such a restrictive standard. For this reason, Joliet

concludes that the standard of 60 pCi/L radium, proposed by the Illinois Emergency

Management Agency, DNS, is appropriate. Joliet also supports the DNS suggestion to apply a

safety factor of 2.0 for a water quality standard of 30 pCi/L combined radium.

Joliet contends the Board’s proposal for the 2005 first notice does not consider other

radium discharges in Illinois that do not originate from wastewater treatment plants. In the way

of examples, Joliet provides sources such as deep wells used for irrigation of golf courses and

agriculture, deep wells used during testing, and fire hydrants. PC 46 at 4. However, Joliet did

not provide any specific examples or levels of radium contained by such releases.

WRT Environmental agrees with the USEPA’s comment that the proposed Section

302.207(d) provides no level of protection consistent with the designated use. Further, WRT

Environmental contends that the proposed standard of Section 302.207(d) is not “‛based on

sound scientific rationale,’ as required by the [Clean Water Act] CWA.” PC 48 at 10; citing 40

C.F.R. 131.11(a)(1). WRT Environmental concludes that the “one-mile exemption zone” is

contrary to federal and state law and unsupported by the record. WRT Environmental urges the

Board to delete the proposed Section 302.207(d).

The Radium Water Quality Standard Expressed as a Long-Term Average

The USEPA recommends that the Board express the proposed standard as an average

value over some period of time to reflect long-term exposure, rather than an instantaneous value.

As an example, the USEPA refers to its Great Lakes Water Quality Guidance (40 C.F.R. 132),

which recommends that waste load allocations based on wildlife standard be calculated using the

90-day, 10-year low flow as the design flow. The USEPA continues that if the Board takes this

approach, it should also implement a 5 pCi/L Public and Food Processing Water Supply standard

as an instantaneous maximum standard to ensure that public water supplies meet the Federal

drinking water maximum contaminant level for radium.

The Environmental Groups agree with the USEPA’s argument that an average value

radium standard is consistent with the goal not to exceed the biota dose limit of 0.1 rad/day for

riparian animals. PC 44 at 4. Nonetheless, the environmental groups emphasize that if such an

approach is taken, it is even more important to monitor in-stream sediment outside of that zone.

Joliet also does not object to the use of an annual average, and states in fact, that the use

of the annual average would reduce the number of plants with potential violations from nine

plants to between two and six.

Whether Consideration of Economic Factors Was Proper

According to the environmental groups, economic factors should not be considered in

setting general use water quality standards, and even considering economic factors, there is no

evidence it would be costly to comply with the combined 3.75 pCi/L standard anywhere.

The environmental groups state that economic factors should not be taken into account in

setting the numeric standards that are protective of uses. The appropriate considerations are

whether the designated uses are “based on a sound scientific rationale” and protect the “most

sensitive use.” PC 44 at 2; citing 40 C.F.R. 131.11(a);

People v. PCB, 103 Ill. 2d 441, 469 N.E.

2d 1102, 1108 (Ill. 1984). On the other hand, state the environmental groups, economic factors

are irrelevant to setting such criteria. PC 44 at 2; citing

Mississippi Commission on Natural

Resources v. Costle, 625 F.2d 1269, 1277 (5th Cir. 1980).

The environmental groups further state that the hearing record contains no testimony

showing that the 3.75 pCi/L standard would be costly for any discharger. PC 44 at 3. The

environmental groups state that new post-hearing data submitted by Joliet indicates that in-

stream levels of combined radium were less than 1.5 pCi/L at all locations tested. The data also

showed, state the environmental groups, that almost all of the communities would meet the 3.75

pCi/L standard with a standard mixing zone. The environmental groups conclude that even if it

was considered, there is no substantial economic reason for the proposed Section 302.207(d).

Sediment Monitoring

The Environmental Groups support the Board’s reliance on the Department of Energy

(DOE) technical standard

as guidance to establish a water quality standard for combined radium

applicable to general use waters and the Lake Michigan Basin. PC 44 at 3. However, the

environmental groups note that the proposed standard of 3.75 pCi/L does not consider the

contribution of radium from stream sediment.

. Therefore, the environmental groups

recommend that the Board include in the rule a requirement that the Agency must include in

POTW permits a requirement to monitor stream sediment at a point outside of the mixing zone.

The environmental groups state that monitoring would ensure that radium particles were not

building up in the sediment and exceeding the biota dose limit of 0.1 rad/day.

CARE also advocates a comprehensive review by the Agency of the adequacy of Illinois’

regulations concerning radium that originates in drinking water. PC 43 at 4. It is inadvisable,

See

Hearing Exhibit 15, “A Graded Approach for Evaluating Radiation Doses to Aquatic and

Terrestrial Biota (DOE-STD-1 153-2002),” for Use in DOE Compliance and Risk Assessment

Activities, U.S. Department of Energy, Domotor, Stephen, July 2002.

according to CARE, to consider the water quality issue in isolation without also considering

New Data Submitted by the City of Joliet

Joliet identified fourteen treatment plants as having potential problems complying with

the proposed standards. Joliet collected wastewater plant data from eleven of those plants, seven

of which would violate an instantaneously applicable standard of 3.75 pCi/L combined radium.

The data does not demonstrate the actual radium levels one mile downstream of the POTWs’

discharge.

WRT Environmental interprets Joliet’s data to reveal that most communities can meet the

3.75 pCi/L standard even before applying averaging factors for grab and composite sampling, or

before mixing in the receiving stream. PC at 4; citing 35 Ill. Adm. Code 304.104; PC 46, Att. 1.

The Environmental Groups state they could not comment on dischargers from communities A

and B because of the lack of information regarding the nature of the receiving water bodies and

uncertainty with the Monmouth data. PC 44 at 3. Like Joliet, the environmental groups state

that the data suggests that the rest of the dischargers would be able to meet the 3.75 pCi/L

standard with a standard mixing zone, if needed. According to the environmental groups, the

new data further suggests that there is no substantial economic reason for the special pCi/L

mixing zone included in the Board’s proposal.

Id.

Radioactive Water Treatment Residuals

WRT Environmental states that it supports the proposed 3.75 pCi/L combined standard,

yet urges the Board to open an inquiry docket or present a warning comment on the amended

rule to address the issue of residual solids or sludge. PC 48 at 12. WRT Environmental takes

the position that the sludge issue is not only a part, but “the

major issue in this proceeding.” PC

at 48.

By repealing the 1 pCi/L radium 226 limit, WRT Environmental contends the Board

should not simultaneously “open the door for the disposal into waterways of sludge that was

previously illegal and regulated.” PC 48 at 17. To prevent this, WRT Environmental proposes

that the Board insert a warning comment into its rules referring to a USEPA guidance manual

regarding the management of radionuclide residuals from drinking water treatment technologies,

or alternatively, initiate hearings on the adequacy of existing regulations for radionuclides.

Because the proposed rulemaking fails to address the re-introduction of radioactive

residuals into the environment following treatment, WRT Environmental claims the rulemaking

violates applicable Illinois environmental law, such as the Illinois Pollution Prevention Act, the

Illinois Groundwater Protection Act, the Illinois Low Level Radioactive Waste Management

Act, the Illinois Endangered Species Act, and the Environmental Protection Act. PC 48 at 19.

In summary, WRT Environmental reiterates its support for the As Low As Reasonably

Achievable (ALARA) standard. WRT continues that the ALARA philosophy would not include

the proposed Section 302.207(d), or allowing an unnecessary risk of radium exposure to POTW

workers.

The Agency’s Public Comment (PC 50)

The Agency prefers its original January 2004 proposal and disagrees with the Board’s

reliance on certain technical documents incorporated into the record and cited in the Board’s

2005 first-notice opinion and order. However, in its 2005 first-notice public comment, the

Agency offers suggestions on “the best way to achieve [the Board’s] goals within the framework

established in its April 2005 Opinion and Order and the requirements of the Clean Water Act.”

PC 50 at 3.

As discussed below, the Agency favors the USEPA’s recommendation of using long-term

averaging for the radium general use water quality standard and suggests how it may implement

such a standard. The Agency states that using “long term flow values in developing mixing

zones would more closely achieve the Board’s stated goals.” PC 50 at 6.

Consistent With Board Regulations

The Agency suggests the Board should regulate radium based on an annual average

concentration of radium present in the water body due to the nature of radium. The Agency

states that, for example, in Subtitle E of the Board’s regulations (35 Ill. Adm. Code 501-580),

bioaccumulative substances such as PCBs or DDT are regulated based on concentrations present

during 90Q10 or higher stream flow conditions. PC 50 at 7. The Agency explains that 90Q10 is

the average minimum 90 day low flow that is predicted to occur once every 10 years. The

Agency states that using this approach, discharged concentrations of the regulated substance will

be diluted much of the time due to a water body having a higher than 90Q10 flow.

Therefore, the Agency states the concentration of substances remains acceptably low and

wildlife species are protected.

The Agency provides two additional examples where the Board uses a flow value other

than 7Q10: (1) harmonic mean flow values used for the Human Nonthreshold Criterion of the

Board’s water quality standards; and (2) an annual average used in the Human Health Standard

used for mercury and benzene. PC 50 at 8. Radium is different because it affects wildlife

through simple exposure, rather than bioaccumulation. For this reason, argues the Agency, it is

more appropriate to regulate radium based on long-term averaging, rather than an instantaneous

standard. For all of these reasons, the Agency recommends that the Board adopt a General Use

and Lake Michigan Basin radium water quality standard of 3.75 pCi/L combined radium based

on an annual average concentration in the water body. PC 50 at 8-9.

Consistent With the Record

The Agency asserts this recommendation is consistent with the use of the biota dose

assessment of the DOE model. This document models the reproductive effects of radium on

riparian mammals that occur over a lifetime of exposure to radium concentrations in the

environment. PC at 9. The Agency states that the exposure period used in the DOE model is

consistent with the Agency’s annual average exposure period recommendation. PC 50 at 9.

Protective of Drinking Water Intakes

The Agency asserts that the Board has “removed the use of a Public and Food Processing

Water Supply standard matching the U.S. EPA’s MCL for radium in drinking water.” PC 50 at

10. The Agency recommends that the 5 pCi/L drinking water standard should remain an

instantaneously applied standard applicable to drinking water intakes at all times.

. While it is

not aware of any present or potential situations where an upstream discharge would cause a

Public and Food Processing Water Supply surface water intake to exceed 5 pCi/L, the Agency

agrees that the standard should be adopted as a safeguard.

Relief For POTWs

The Agency concludes that of the impacted POTWs, many or most would have difficulty

complying with the instantaneously applied combined standard of 3.75 pCi/L, even one mile

below their discharge point as those standards are currently implemented. PC 50 at 11.

However, the Agency concludes from the data submitted by Joliet that the 3.75 pCi/L standard

based on long term averaging will likely provide relief to many of the impacted dischargers in a

way that is protective of the most sensitive uses of all waters of the State of Illinois. PC 50 at 12.

Further, as evidenced by the Agency’s proposed regulatory language, the Agency recommends

that the Board allow mixing in low flow streams that receive radium discharge to provide relief

to a few POTWs that discharge to such streams. PC 50 at 12.

The Agency’s (PC 50) Proposed Regulatory Language

Section 302.207

Radioactivity

Gross beta (STORET number 03501) concentration shall not exceed 100

picocuries per liter (pCi/L).

Concentrations of radium 226 (STORET number 09501) and sStrontium 90

(STORET number 13501) concentration must not exceed

1 and 2 picocuries per

liter (pCi/L)

respectively.

The annual average radium 226 and radium 228 (STORET number 11503)

combined concentration must not exceed 3.75 picocuries per liter (pCi/L).

For purpose of this subsection, the requirement of Section 302.102(b)(8)

of this Part that mixing is not allowed in receiving waters which have a

zero minimum seven day low flow which occurs once every ten years does

not apply; and

Mixing zones for radium dischargers may be calculated using the annual

average stream flow present at the point of discharge.

SUBPART C: PUBLIC AND FOOD PROCESSING WATER SUPPLY STANDARDS

Section 302.307

Radium 226 and 228

Radium 226 and 228 (STORET number 11503) combined concentration must not exceed 5

picocuries per liter (pCi/L) at any time.

SUBPART E: LAKE MICHIGAN BASIN WATER QUALITY STANDARDS

Section 302.525

Radioactivity

Except as provided in Section 302.102, all waters of the Lake Michigan Basin must meet the

following concentrations

in any sample:

a) Gross beta (STORET number 0351) concentrations must not exceed 100 picocuries

per liter (pCi/L).

Concentrations of radium 226 (STORET number 09501) and sStrontium 90

(STORET number 13501) concentration shall not exceed

1 and 2 picocuries per liter

(pCi/L)

respectively.

The annual average radium 226 and 228 (STORET number 11503) combined

concentration must not exceed 3.75 picocuries per liter (pCi/L).

DISCUSSION OF SECOND-NOTICE PROPOSAL

Below the Board analyzes the participants’ recommendations and other issues raised in

public comments. The Board will also discuss the second-notice changes and give reasons for

the changes.

The parties generally agree that evidence exists demonstrating that a general use water

quality standard for radium 226 and 228 combined must be retained to afford protection to most

sensitive use of Illinois waters, the protection of riparian mammals. The parties, excluding the

Agency, also generally agree that the DOE technical standard provides the necessary guidance to

establish a water quality standard for combined radium applicable to general use waters and the

Lake Michigan basin. CARE and the Fox River Reclamation District both oppose the 3.75

pCi/L combined radium standard that the Board adopted for second first-notice, CARE finding

the standard too “weak,” and Fox River Reclamation District supporting no general use standard

at all.

The Board disagrees with Joliet’s comment that the USEPA in “their June 10, 2005 letter

to the Hearing Officer makes it clear that the proposed rule will not be approved by the USEPA.”

PC 46. In fact, the USEPA, in an

informal

review of the rule, stated it “does not anticipate

disapproval of the General Use standard of 3.75 pCi/L.” PC 41. After considering all of the

comments, the Board retains the 3.75 pCi/L combined radium limit as a general use water quality

standard for second-notice.

The Board does not agree that treatment residuals should be addressed in this rulemaking.

This rule only amends Part 302 of the Board’s water quality rules and cannot open a new part at

this late date in the proceeding.

Consideration of Economic Factors

Several of the public comments stated that economic factors should not be taken into

account in setting the numeric standards that are protective of designated uses.

See e.g

. PC 44 at

2; PC 48 at 8. However, the Board is required by statute to consider economic impacts of each

rulemaking it considers.

Under Section 13 of the Act, the Board is granted rulemaking authority to establish water

quality standards. 415 ILCS 5/13(a)(1) (2004);

see

Granite City Steel Co.,

et al

v. PCB, 155 Ill.

2d 149, 613 N.E.2d 719 (1993). In promulgating those regulations, the Board is governed by

Section 27 of the Act. 415 ILCS 5/27 (2004). For example, Section 27(a) provides “the Board

shall take into account the . . . technical feasibility and economic reasonableness of measuring or

reducing the particular type of pollution.”

. Section 27(b)(1) requires the Department of

Commerce and Community Affairs (now the Department of Commerce and Economic

Opportunity) to conduct a study of the economic impact of the proposed rules, and subpart (b)(2)

of that section requires the Board to “conduct at least one hearing on the economic impact of

those new rules.” 415 ILCS 5/27(b)(1), (2) (2004). Finally, the Board must “in its written

opinion, make a determination, based upon the evidence in the public hearing record, including

but not limited to the economic impact study, as to whether the proposed rule has any adverse

economic impact on the people of the State of Illinois.” 415 ILCS 5/27(b)(2) (2004).

Economic impact relates to the impact on the community.

See

Citizens’ Utilities Co. v.

PCB, 152 Ill. App. 3d 122, 504 N.E.2d 224 (1987). Therefore, as required by statute, the Board

properly considered the potential economic impacts the proposed rule would have on POTWs, as

well as the economic impact when costs of compliance for POTWs are filtered down to citizens

in the form of increased rates.

Further, support for a general use water quality limit of 30 pCi/L, that the Board

proposed in Section 302.207(d), was not based solely on economic factors. In fact, as stated in

the Board’s April 7, 2005 opinion and order, “this limit is based on IEMA’s recommendation of

using the NRC limit and Joliet’s suggestion of applying a factor of safety of 2.” The Illinois

Emergency Management Agency (IEMA) adopted the U.S. Nuclear Regulatory Commission’s

effluent concentration limit for radium; a standard that relates directly to radiation dose for

humans. 32 Ill. Adm. Code 340, Appendix B, Table 2. The effluent concentration limit for

radium in water is 60 pCi/L combined radium, which if ingested continuously over the course of

a year, would produce a total effective dose equivalent of 50 millirem. PC 24. At IEMA’s

suggestion, the Board applied a factor of safety of two to arrive at the 30 pCi/L combined radium

water quality limit. Nonetheless, the Board explicitly invited comments from the participants on

this provision, which the Board analyzes in the following paragraphs.

Radium General Use Water Quality Standard Expressed as a Long-Term Average

As discussed at the 2005 first notice, the 3.75 pCi/L limit is based on the DOE technical

standard that meets the biota dose limit of 0.1 rad/d for riparian animals. Based on the evidence

in the record, the Board finds this general use standard will be protective of human health and

the environment, including aquatic life and riparian mammals, and ensure that high levels of

radium cannot be discharged into Illinois waterways.

In today’s proposal, the Board expresses that limit as an average measured over the

length of a year. Therefore, while the concentration of radium 226 and 228 combined may be

higher than 3.75 pCi/L at times due to environmental conditions, the water body will still meet

the standard as long as the concentration averaged over the period of a year remains at or below

3.75 pCi/L. Determining compliance in this way will provide relief to POTWs while more

precisely tailoring the standard to meet the Board’s goal of protecting riparian mammals.

The DOE technical document supports considering temporal variability of contamination

in the environment when evaluating doses to biota. Exh. 15, M2-27. The DOE document

explains that radionuclide concentrations in surface water, compared to concentrations in

sediments or surface soil, can change relatively rapidly. Exh. 15, M2-28. Further, site-specific

conditions such as storm water flows or seasonal occurrences like high flow conditions may

produce wide variations of exposure to receptors.

The DOE document provides reasons why it is appropriate to use time averaging in

applying the daily dose limits for biota. Exh. 15, M2-28. First, daily dose limits are intended to

protect whole populations of a species, rather than individuals, where a primary concern is the

effect of contaminants on reproductive capability over the normal reproductive lifetime.

Second, the studies used as bases for the daily dose limits were obtained primarily from studies

involving chronic exposure, where the average dose rate in the population varied substantially,

over exposure times ranging from several months to several years.

Third, single acute doses, even doses 10-30 times higher than the daily dose limit,

appeared tolerable, based on studies involving short-term exposures, so long as the recovery time

between doses was sufficiently long (30-60 days), and the daily dose rate was limited in

accordance with the standards. Exh. 15, M2-29. Fourth, the average doses were the primary

bases for the DOE document’s conclusions regarding early mortality and the impairment of

reproductive capability.

. According to the DOE document, the dose limits were not intended

as limits on each day of exposure, but rather, as limits on the average dose rates encountered

from conception through reproductive age. For these reasons, the DOE document suggests that

“averaging times as long as one year may be appropriate for reproducing members of

populations of the most radiosensitive organisms.” Exh. 15, M2-29. Fifth, radioecological

studies

demonstrate that radiation effects are observed at the population and community level

only for annual doses greater than about 400 rad or 1 rad/day.

The DOE document provides that these were studies done at highly contaminated sites in the

former Soviet Union (Polikarpov 1994). Exh. 15, M2-29.

Therefore, based on the record, the Board also finds the long-term averaging approach

appropriate given the nature of radium as well as the bases used for establishing the method for

determining the daily dose limit. Radium does affect wildlife through simple exposure, yet the

primary concern regarding exposure is the chronic effects of radium that result from

bioconcentration and bioaccumulation such as cancer and reproductive and developmental

effects. Thus, the Board finds that a combined radium standard, expressed as a limit on the

annual average of daily dose rates encountered from conception through reproductive age, will

adequately protect the most sensitive designated use of Illinois water bodies. The 3.75 pCi/L

combined radium standard does not include any contributions of radium from sediment because

the record does not contain any data supporting or refuting the contribution of radium from

stream sediments in Illinois waters.

Additionally, the new data submitted by Joliet regarding Northern Illinois POTWs

indicates that expressing the general use water quality limit as a long-term average will provide

relief for a majority of the affected POTWs. According to Joliet, the use of the annual average

would reduce the number of plants with potential violations to between two and six. PC 46 at 3.

Today’s proposal does not incorporate the Agency’s suggestion of allowing for mixing

even if the stream has a zero 7Q10 flow. The Agency does not support this portion of its

proposal with evidence contained in the record, stating only that allowing mixing zones in

dischargers’ permits would provide relief for POTWs. The Board finds that the proposed water

quality standard expressed as an annual average provides relief for the majority of POTWs,

while also protecting the most sensitive use of general use waters. Any dischargers that cannot

comply may seek an adjusted standard or other relief from the Board upon making the proper

showing.

In today’s proposal, the Board eliminates the 30 pCi/L water quality standard applicable

up to one-mile downstream of POTW discharges. Simultaneously, the Board expresses the 3.75

pCi/L standard as an annual average concentration of combined radium rather than as an

instantaneous standard.

Public and Food Processing Water Supply Standard

Food Processing Water Supply standard of 5 pCi/L combined radium 226 and 228 to ensure that

public water supplies meet the Federal drinking water maximum contaminant level for radium.

Since the proposed general use standard is based on a long-term average concentration, an

instantaneous surface water intake standard will ensure protection from upstream discharges that

could cause a Public and Food Processing Water Supply to exceed 5 pCi/L.

CONCLUSION

To protect all designated uses of Illinois waters, the Board retains the 3.75 pCi/L

combined radium 226 and 228 standard applicable to general use waters and the Lake Michigan

Basin proposed in 2005. Today’s proposal, however, diverges from the Board’s 2005 proposal

in that compliance with the standard is determined by the annual average of combined radium

concentrations. The proposal applies a 5.0 pCi/L standard to Public and Food Processing Water

Supply intakes as an instantaneous standard. The Board finds the proposal adopted today

economically reasonable and technically feasible.

The Board adopts this proposal for second-notice review by JCAR. The 45-day second-

notice period will begin on the date written notice is received by JCAR and the Board will accept

comments only from JCAR during the second-notice period.

See

35 Ill. Adm. Code 102.606.

ORDER

The Board proposes for second-notice review by JCAR the following amendments to 35

Ill. Adm. Code 302. Proposed deletions to the current rules are stricken, and proposed additions

are underlined.

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE C: WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 302

WATER QUALITY STANDARDS

SUBPART A: GENERAL WATER QUALITY PROVISIONS

Scope and Applicability

302.102

Allowed Mixing, Mixing Zones and ZIDs

302.103

Stream Flows

302.104

Main River Temperatures

302.105

Antidegradation

SUBPART B: GENERAL USE WATER QUALITY STANDARDS

Section

302.201

Scope and Applicability

Numeric Standards for Chemical Constituents

302.209

Fecal Coliform

302.210

Other Toxic Substances

302.211

Temperature

302.212

Total Ammonia Nitrogen

302.213

Effluent Modified Waters (Ammonia)(Repealed)

SUBPART C: PUBLIC AND FOOD PROCESSING WATER SUPPLY STANDARDS

Section

302.301

Scope and Applicability

302.302

Algicide Permits

302.303

Finished Water Standards

302.304

Chemical Constituents

SUBPART D: SECONDARY CONTACT AND INDIGENOUS AQUATIC LIFE

STANDARDS

Section

302.401

Scope and Applicability

Fecal Coliform (Repealed)

302.407

Chemical Constituents

Substances Toxic to Aquatic Life

SUBPART E: LAKE MICHIGAN BASIN WATER QUALITY STANDARDS

Section

302.501

Scope, Applicability, and Definitions

Chemical Constituents

Thermal Standards for Existing Sources on January 1, 1971

302.508

Thermal Standards for Sources Under Construction But Not In Operation on

Incorporations by Reference

302.515

Offensive Conditions

302.520

Regulation and Designation of Bioaccumulative Chemicals of Concern (BCCs)

302.521

Supplemental Antidegradation Provisions for Bioaccumulative Chemicals of

Supplemental Mixing Provisions for Bioaccumulative Chemicals of Concern

Other Toxic Substances

Determining the Lake Michigan Aquatic Toxicity Criteria or Values - General

Procedures

302.555

Determining the Tier I Lake Michigan Acute Aquatic Toxicity Criterion

(LMAATC): Independent of Water Chemistry

302.560

Determining the Tier I Lake Michigan Basin Acute Aquatic Life Toxicity

Criterion (LMAATC): Dependent on Water Chemistry

302.563

Determining the Tier II Lake Michigan Basin Acute Aquatic Life Toxicity Value

(LMAATV)

302.565

Determining the Lake Michigan Basin Chronic Aquatic Life Toxicity Criterion

(LMCATC) or the Lake Michigan Basin Chronic Aquatic Life Toxicity Value

(LMCATV)

302.570

Procedures for Deriving Bioaccumulation Factors for the Lake Michigan Basin

302.575

Procedures for Deriving Tier I Water Quality Criteria and Values in the Lake

Michigan Basin to Protect Wildlife

302.580

Procedures for Deriving Water Quality Criteria and Values in the Lake Michigan

Basin to Protect Human Health – General

302.585

Procedures for Determining the Lake Michigan Basin Human Health Threshold

Criterion (LMHHTC) and the Lake Michigan Basin Human Health Threshold

Value (LMHHTV)

302.590

Procedures for Determining the Lake Michigan Basin Human Health

Nonthreshold Criterion (LMHHNC) or the Lake Michigan Basin Human Health

Nonthreshold Value (LMHHNV)

302.595

Listing of Bioaccumulative Chemicals of Concern, Derived Criteria and Values

SUBPART F: PROCEDURES FOR DETERMINING WATER QUALITY CRITERIA

Section

302.601

Scope and Applicability

302.603

Definitions

302.604

Mathematical Abbreviations

302.606

Data Requirements

302.612

Determining the Acute Aquatic Toxicity Criterion for an Individual Substance –

General Procedures

302.615

Determining the Acute Aquatic Toxicity Criterion - Toxicity Independent of

Water Chemistry

302.618

Determining the Acute Aquatic Toxicity Criterion - Toxicity Dependent on Water

Chemistry

302.621

Determining the Acute Aquatic Toxicity Criterion - Procedure for Combinations

of Substances

302.627

Determining the Chronic Aquatic Toxicity Criterion for an Individual Substance -

General Procedures

302.630

Determining the Chronic Aquatic Toxicity Criterion - Procedure for

Combinations of Substances

302.633

The Wild and Domestic Animal Protection Criterion

302.642

The Human Threshold Criterion

302.645

Determining the Acceptable Daily Intake

302.648

Determining the Human Threshold Criterion

302.651

The Human Nonthreshold Criterion

302.654

Determining the Risk Associated Intake

302.657

Determining the Human Nonthreshold Criterion

302.658

Stream Flow for Application of Human Nonthreshold Criterion

302.660

Bioconcentration Factor

302.663

Determination of Bioconcentration Factor

302.666

Utilizing the Bioconcentration Factor

302.669

Listing of Derived Criteria

APPENDIX A

References to Previous Rules

APPENDIX B

Sources of Codified Sections

APPENDIX C

Maximum total ammonia nitrogen concentrations allowable for certain

combinations of pH and temperature

TABLE A

pH-Dependent Values of the AS (Acute Standard)

TABLE B

Temperature and pH-Dependent Values of the CS (Chronic Standard) for

Fish Early Life Stages Absent

TABLE C

Temperature and pH-Dependent Values of the CS (Chronic Standard) for

Fish Early Life Stages Present

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

Environmental Protection Act [415 ILCS 5/13, 11(b), and 27]

SOURCE: Filed with the Secretary of State January 1, 1978; amended at 2 Ill. Reg. 44, p. 151,

effective November 2, 1978; amended at 3 Ill. Reg. 20, p. 95, effective May 17, 1979; amended

at 3 Ill. Reg. 25, p. 190, effective June 21, 1979; codified at 6 Ill. Reg. 7818; amended at 6 Ill.

Reg. 11161, effective September 7, 1982; amended at 6 Ill. Reg. 13750, effective October 26,

1982; amended at 8 Ill. Reg. 1629, effective January 18, 1984; peremptory amendments at 10 Ill.

Reg. 461, effective December 23, 1985; amended at R87-27 at 12 Ill. Reg. 9911, effective May

27, 1988; amended at R85-29 at 12 Ill. Reg. 12082, effective July 11, 1988; amended in R88-1 at

13 Ill. Reg. 5998, effective April 18, 1989; amended in R88-21(A) at 14 Ill. Reg. 2899, effective

February 13, 1990; amended in R88-21(B) at 14 Ill. Reg. 11974, effective July 9, 1990; amended

in R94-1(A) at 20 Ill. Reg. 7682, effective May 24, 1996; amended in R94-1(B) at 21 Ill. Reg.

370, effective December 23, 1996; expedited correction at 21 Ill. Reg. 6273, effective December

23, 1996; amended in R97-25 at 22 Ill. Reg. 1356, effective December 24, 1997; amended in

R99-8 at 23 Ill. Reg. 11249, effective August 26, 1999; amended in R01-13 at 26 Ill. Reg. 3505,

effective February 22, 2002; amended in R02-19 at 26 Ill. Reg. 16931, effective November 8,

2002; amended in R02-11 at 27 Ill. Reg. 166, effective December 20, 2002; amended in R_____

at _____ Ill. Reg. _____, effective ____________________.

SUBPART B: GENERAL USE WATER QUALITY STANDARDS

Section 302.207

Radioactivity

Gross beta (STORET number 03501) concentration shall not exceed 100

picocuries per liter (pCi/L).

Concentrations of radium 226 (STORET number 09501) and sStrontium 90

(STORET number 13501) concentration

must not exceed 1 and 2 picocuries per

liter (pCi/L)respectively

The annual average radium 226 and 228 (STORET number 11503) combined

concentration must not exceed 3.75 picocuries per liter (pCi/L).

(Source: Amended at _____ Ill. Reg. __________, effective __________)

SUBPART C: PUBLIC AND FOOD PROCESSING WATER SUPPLY STANDARDS

Section 302.307

Radium 226 and 228

Radium 226 and 228 (STORET number 11503) combined concentration must not exceed 5

picocuries per liter (pCi/L) at any time.

(Source: Amended at _____ Ill. Reg. __________, effective __________)

SUBPART E: LAKE MICHIGAN BASIN WATER QUALITY STANDARDS

Section 302.525

Radioactivity

Except as provided in Section 302.102, all waters of the Lake Michigan Basin must meet the

following concentrations

in any sample:

Gross beta (STORET number 03501) concentrations must not exceed 100

picocuries per liter (pCi/L).

Concentrations of radium 226 (STORET number 09501) and sStrontium 90

(STORET number 13501) concentration

shall not exceed 1 and 2 picocuries per

liter (pCi/L)respectively

The annual average radium 226 and 228 (STORET number 11503) combined

concentration must not exceed 3.75 picocuries per liter (pCi/L).

(Source: Amended at _____ Ill. Reg. __________, effective __________)

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above opinion and order on December 15, 2005, by a vote of 4-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board