OF THE STATE OF ILLINOIS

IN THE MATTER OF:

)

1

)

R07-09

TRIENNIAL REVIEW OF SULFATE AND

)

(Rulemaking

-

Water)

TOTAL DISSOLVED SOLIDS WATER

1

QUALITY STANDARDS: PROPOSED

1

AMENDMENTS TO: 35 Ill. Adm. Code 302.102(b)(6),

)

302.102(b)(8), 302.102(b)(lO), 302.208(g),

)

309.103(~)(3), 405 .109(b)(2)(A), 405.109(b)(2)@),

406.100(d); REPEALED 35 Ill. Adm. Code 406.203,

)

)

PART 407; and PROPOSED NEW 35 Ill. Adm. Code

)

302.208(h).

1

NOTICE OF FILING

To:

Please take notice that on June 7,2007, we filed with the Office of the Clerk of the Illinois

Pollution Control Board via electronic mail

CITGO'S POST-HEARING COMMENTS

REGARDING REVISIONS TO WATER QUALITY STANDARDS FOR TOTAL

DISSOLVED SOLIDS,

a copy of which is served upon you.

Dorothy Gunn, Clerk

Illinois Pollution Control Board

100 West Randolph Street

Suite 1 1-500

Chicago, Illinois 6060 1

Mathew Dunn

Illinois Attorney General's Office

Environmental Control Division

James R. Thompson Center

100 West Randolph Street

Chicago, Illinois 60601

CITGO PETROLEUM CORPORATION

Marie E. Tipsord

Hearing Officer

Illinois Pollution Control Board

100 West Randolph, Suite 1 1-500

Chicago, Illinois 6060 1

Jonathan

Furr

Illinois Department of Natural Resources

One Natural Resources Way

Springfield, Illinois 62702- 127 1

By:

Jeffrey C. Fort

Elizabeth

A. Leifel

Sonnenschein Nath

&

Rosenthal LLP

7800 Sears Tower

233 S. Wacker Drive

Chicago, IL 60606-6404

Electronic Filing, Received, Clerk's Office, June 7, 2007

* * * * * * PC #6 * * * * * *

---

OF THE STATE OF ILLINOIS

IN THE MATTER OF:

TRIENNIAL REVIEW OF SULFATE AND

TOTAL DISSOLVED SOLIDS WATER

QUALITY STANDARDS: PROPOSED

AMENDMENTS TO: 35

Ill. Adm. Code 302.102(b)(6),

302.1 02(b)(8), 302.102(b)(lO), 302.208(g),

309.103(~)(3), 405.109(b)(2)(A), 405.109(b)(2)(B),

406.1 00(d); REPEALED 35 Ill. Adm. Code 406.203,

Part 407; and PROPOSED NEW 35

Ill. Adm. Code

302.208(h).

1

1

1

R07-09

1

(Rulemaking

-

Water)

1

1

1

1

1

1

1

)

CITGO'S POST-HEARING COMMENTS REGARDING REVISIONS TO

WATER QUALITY STANDARDS FOR TOTAL DISSOLVED SOLIDS

NOW COMES CITGO Petroleum Corporation ("CITGO"), by and through its attorneys,

pursuant to 35

Ill. Adm. Code

5

102.108, and offers the following POST-HEARING

COMMENTS in the above-captioned proposed rule. In addition, CITGO has attached, in

response to the Board's request, relevant portions of the Illinois Environmental Protection

Agency's (the "Agency's") draft proposal to revise the water quality standards for secondary

contact waters (see Attachment 1).

I.

Introduction

CITGO supports the Agency's proposal to eliminate the existing water quality standard

for Total Dissolved Solids

("TDS") for general use waterways. CITGO believes, however, that

the elimination of TDS standards should not be limited to general use waterways, but should also

be eliminated for secondary contact waterways.

The Agency's position, as expressed during the April 23,2007 hearing in this proceeding,

is that it preferred to wait to include the changes to TDS for secondary contact waters until a

proposal could be made that addressed all water quality standards with respect to those waters.

Electronic Filing, Received, Clerk's Office, June 7, 2007

* * * * * * PC #6 * * * * * *

---

Agency representative Bob Mosher stated1 that there are two reasons for the Agency's desire to

postpone the elimination of TDS standards until the general secondary contact standard revision

is proposed:

1) the group of stakeholders currently meeting to discuss changes in secondary

contact standards (also referred to as the Use Attainability Analysis ("UAA")) should have the

opportunity to consider TDS issues; and 2) the Agency must consider the appropriate sulfate

standard for waters in which chloride levels exceed 500

mgll. Neither of these is sufficient

grounds for denying CITGO relief in this proceeding.

The potential delays surrounding the timing of the secondary contact water quality

standards rulemaking proceeding are likely significant. The likely delay in such a proceeding

will cause harm to CITGO as CITGO will likely be required either: (1) to file its own

site-

specific rule change, (2) to file another variance petition, or (3) to act on the conditions of its

five-year variance from the TDS water quality standard. None of these alternatives would be

needed if the Agency's pending rule was applied to eliminate the applicable TDS water quality

standard for CITGO.

For these reasons, as supported by the pre-filed and sworn testimony of Brigitte

Postel

and James Huff, CITGO urges the Board to eliminate the TDS water quality standard for

secondary contact waters. In the alternative, CITGO requests that the Board eliminate the TDS

water quality standard for the Lemont Refinery's discharge to the Chicago Sanitary

&

Ship

Canal.

11.

Argument

A.

The Agency's Reasons For Postponing The Elimination Of TDS Standards For

Secondary Contact Waters Are Unfounded.

'

Mr. Mosher presented a statement of the Agency's position at the Chicago hearing (Tr. 40:2-

43: 16). He did not purport to testify or comment on technical or economic matters. His

statement is one of policy, not of evidentiary support.

2

Electronic Filing, Received, Clerk's Office, June 7, 2007

* * * * * * PC #6 * * * * * *

---

The Agency has resisted eliminating TDS water quality standards in secondary contact

waters, in part, on the grounds that a group of stakeholders that has been discussing UAA issues

as a whole should have the opportunity to weigh in on the issues of TDS, chloride, and sulfate

standards. (Tr. at

40:13-22). The Agency's assertion presumes that members of the stakeholder

group would even wish to weigh in on these issues. As Ms.

Postel and Mr. Huff testified, TDS,

chloride, and sulfate standards are not among the issues on which members of the stakeholder

group disagree. While the UAA proceeding promises to be controversial, the points of

contention among stakeholders relate to changes in other pollutants such as temperature,

ammonia, and bacteria. CITGO asserts that it is the only discharger in the Chicago area that is

adversely affected by the current TDS standard. TDS has not even been mentioned in the UAA

discussions, and it is not necessary to postpone the discussion here to afford stakeholders

additional opportunity for input.

The Agency has also taken the position that eliminating the TDS standard for secondary

contact waters must be done in conjunction with the construction of

a corresponding sulfate

andlor chloride standard. (Tr. 40:22

-

41:23). The Agency's concern appears to be based on the

method for determining sulfate levels, which takes into account the chloride levels of the

surrounding waterway. The Agency has posed its belief that the 500

mgll chloride standard in

Ill. Adm. Code

5

302.208 is protective of aquatic life; however, the Agency has presented no

scientific basis for this belief:

"Our chloride standard for General Use waters is 500 milligrams

per liter. We believe that is a good protective standard. We believe that when waters exceed

500, that's probably bad for aquatic life. There's probably some sensitive species of aquatic life

that would suffer when that condition happens." (Tr. at 57: 2

-

57:9).

Moreover, the Agency has acknowledged that the general use proposal is not intended to

answer the question of how sulfate levels are determined for waters that exceed 500

mg/l

Electronic Filing, Received, Clerk's Office, June 7, 2007

* * * * * * PC #6 * * * * * *

---

because its intention is not to develop a rule that implies chloride concentrations greater than 500

mgll are acceptable. (Tr. at

57:2

-

58: 18). Instead, the Agency has indicated that it intends to

address these waterways on a case-by-case basis, perhaps through permitting. (Tr. at 60: 1-20).

Given the lack of scientific data, the fact that there is currently no chloride standard for

secondary contact waters, and the Agency's desire to approach sulfate standards on a case-by-

case basis where waterways, such as the Chicago Sanitary

&

Ship Canal, have chloride levels

above 500 mgll, there is no need to address sulfate and chloride standards at the same time as

eliminating the TDS standard for secondary contact waters. Standards for these other

constituents may be addressed in the

UAA process, or through individual permitting.

In the event that the Board determines that it is necessary to adopt sulfate

andlor chloride

levels in addition to eliminating the TDS standards for secondary contact waters, CITGO posits

that adopting the equation from the general use proposal (without the 500 mgll chloride cap in

light of the absence of a chloride standard for secondary contact waters), would be sufficient. In

its general use proposal, the Agency has formulated the following equation for determining

sulfate levels, which is dependent, in part, on the chloride levels in the receiving water:

Sulfate, mgll

=

(1276.7

+

5.508(Hardness, mgll)

-

1.457(Chlorides, mgll)) x 0.65

For secondary contact waters, the calculated sulfate limit using a chloride value of 500 mgll in

the equation could be used whenever chlorides are at or above 500 mgll.

Thus, both of the Agency's concerns are easily addressed by the evidence in the record in

this proceeding, and the Board need not postpone the elimination of the TDS standards until the

UAA proposal is submitted.

B.

CITGO Will Be Harmed By Postponing The Elimination Of The TDS Standard

For Secondary Contact Waters

As demonstrated in the testimony of Ms. Postel and Mr. Huff, CITGO is reaching a

critical decision-making time under its variance from TDS water quality standards. Under the

4

Electronic Filing, Received, Clerk's Office, June 7, 2007

* * * * * * PC #6 * * * * * *

---

variance, which expires on December 15,2009, CITGO must take steps throughout the five-year

variance to evaluate and begin work on constructing a holding area for bleed

fiom the refinery's

wet gas scrubber for the maximum number of days that the TDS level in the Des Plaines River at

the 1-55 Bridge exceeds 1,000

mgll. CITGO must size and design such a system beginning in

May 2008 and must begin construction on the system by March 1,2009. Citgo Petroleum Corp.

v. Ill. Envtl. Prot. Agency, PCB 05-85, Opinion and Order of the Board (April 21,2005).

Agency representative Bob Mosher testified during the hearing that the secondary contact

changes would be proposed "later this year;" however, when pressed to identify when in 2007

the proposal would be made, Mr. Mosher indicated that such a proposal would not be introduced

until "late in the year

2007." (Tr. at 40:2-12; 42: 1

-

1 1). As Hearing Officer Tipsord correctly

noted, if the proposal is not made until December of 2007 on what is potentially

a controversial

rulemaking, a final rule may well not be issued until the second half of 2008 at the very earliest.

(Tr. at

41:24

-

42:12).

Given this uncertainty, CITGO would be forced to expend significant funds to begin

designing a system for storing wastewater from its wet gas scrubber, when such an exercise

would be a nullity upon the eventual elimination of TDS standards for secondary contact waters.

Moreover, as Mr. Huff testified,

CITGO's decision to pursue a variance fiom the TDS standard

instead of a site-specific rule (as

ExxonMobil had obtained), was driven in part by the Agency's

indication of its intent to eliminate the TDS water quality standard.

(Postel Test. p. 4; Huff Test.

p.

2). To require CITGO, by virtue of the Agency's timing, to adhere to the conditions of a

variance that was forced upon CITGO because of timing issues would be inequitable and

inappropriate under the present circumstances. This is particularly so given the Agency's

knowledge about the lack of toxicity of TDS at significantly higher levels than those contained in

the current regulations.

Electronic Filing, Received, Clerk's Office, June 7, 2007

* * * * * * PC #6 * * * * * *

---

In the absence of relief fiom TDS standards for secondary contact waters, CITGO would

be left with no other alternative than to immediately pursue a site-specific rule. Given the

Board's opportunity to address CITGO's concerns in the context of

an already-existing

proceeding, CITGO believes that initiating a separate rulemaking proceeding would be

duplicative and wasteful of the Board's time and resources, particularly when the Board will

likely have to revisit similar issues once the

UAA rule is proposed.

111.

Conclusion

For all of the foregoing reasons, CITGO respectfully requests that the Board eliminate the

TDS water quality standards for secondary contact waterways in Illinois.

In the alternative,

CITGO respectfully requests that the Board eliminate the TDS water quality standards for the

Chicago Sanitary

&

Ship Canal, or eliminate the TDS standard for the outfall fkom CITGO's

Lemont Refinery.

Dated June 7,2007

Respectfully submitted,

CITGO PETROLEUM CORPORATION

By:

Jeffrey C. Fort

Elizabeth

A. Leifel

Sonnenschein Nath

&

Rosenthal LLP

7800 Sears Tower

233 S. Wacker Drive

Chicago, IL 60606-6404

(3 12) 876-8000

Electronic Filing, Received, Clerk's Office, June 7, 2007

* * * * * * PC #6 * * * * * *

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DRAFT

January 18,2007

ATTACHMENT

1

SUBPART D: CHICAGO AREA WATERWAY SYSTEM AND LOWER DES

PLANES RIVER

S13X3NWLRY rUC)>,TTL4.CT I?>,TD

INBGBWUE

"iWT14T!C

LIFE

STANDARDS

Section

302.401

Scope and Applicability

302.402

Purpose

302.403

Unnatural Sludge

302.404

PH

302.405

Dissolved Oxygen

302.406

Bacteria

302.407

Chemical Constituents

302.408

Temperature

302.409

Cyanide (Repealed)

302.410

Substances Toxic to Aquatic Life

302.412

Total Ammonia Nitrogen

SUBPART E: LAKE MICHIGAN BASIN WATER QUALITY STANDARDS

Section

302.501

302.502

302.503

302.504

302.505

302.506

302.507

302.508

Scope, Applicability, and Definitions

Dissolved Oxygen

pH

Chemical Constituents

Fecal Coliform

Temperature

Thermal Standards for Existing Sources on January 1, 1971

Thermal Standards for Sources Under Construction But Not In Operation

on January 1, 197 1

Other Sources

Incorporations

by Reference

Offensive Conditions

Regulation and Designation of Bioaccumulative Chemicals of Concern

(BCCs)

Supplemental Antidegradation Provisions for Bioaccumulative Chemicals

of Concern (BCCs)

Radioactivity

Supplemental Mixing Provisions for Bioaccumulative Chemicals of

Concern (BCCs)

Ammonia Nitrogen

Other Toxic Substances

Data Requirements

Analytical Testing

Electronic Filing, Received, Clerk's Office, June 7, 2007

* * * * * * PC #6 * * * * * *

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DRAFT

January 18,2007

DRAFT

aquatic life to undiluted effluent, and "rapid" dispersion means an

effluent's merging with receiving waters so as to minimize the length of

exposure time of aquatic life to undiluted effluent. Upon proof by the

applicant that a proposed ZID conforms with the requirements of Section

39 of the Act and this Section, the Agency shall, pursuant to Section

39(b)

of the Act, include within the NPDES permit a condition defining the ZID.

f)

Pursuant to Section 39 of the Act and 35 Ill. Adm. Code 309.103, an

applicant for an NPDES permit shall submit data to allow the Agency to

determine that the nature of any mixing zone or mixing zone in

combination with a ZID conforms with the requirements of Section 39 of

the Act and of this Section. A permittee may appeal Agency

determinations concerning a mixing zone or ZID pursuant to the

procedures of Section 40 of the Act and 35

Ill. Adm. Code 309.1 81.

g)

Where a mixing zone is defined in an NPDES permit, the waters within

that mixing zone, for the duration of that NPDES permit, shall constitute

the sole waters within which mixing is allowed for the permitted

discharge. It shall not be a defense in any action brought pursuant to 35

Ill. Adm. Code 304.105 that the area and volume of waters within which

mixing may be allowed pursuant to subsection (b) is less restrictive than

the area or volume or waters encompassed in the mixing zone.

h)

Where a mixing zone is explicitly denied in a NPDES permit, no waters

may be used for mixing by the discharge to which the NPDES permit

applies, all other provisions of this Section notwithstanding.

i)

Where an NPDES permit is silent on the matter of a mixing zone, or

where no NPDES permit is in effect, the burden of proof shall be on the

discharger to demonstrate compliance with this Section in any action

brought pursuant to 35

Ill. Adm. Code 304.105.

(Source: Amended at

Ill. Reg.

,

effective

)

SUBPART D: CHICAGO AREA WATERWAY SYSTEM AND LOWER DES

PLAINES RIVER

%€QlWARY

C

C

T

S

AALQU2

STANDARDS

Section 302.401

Scope and Applicability

Subpart D contains the

.

Chicago

.

Area Waterway

. .

standards.

System and

These

Lower

must

Des

be met

Plaines

only

River

by

ee&ak

waters specifically designated in Part 303. The Subpart B general use and

Subpart

C public water supply standards of this Part do not apply to waters described in

Section 303.204 and listed in Sections 303.220 through 303.237 of this Part as the

Electronic Filing, Received, Clerk's Office, June 7, 2007

* * * * * * PC #6 * * * * * *

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DRAFT

January 18,2007

DRAFT

Chicapo Area Waterway System or the Lower Des Plaines River

Section 302.402

Purpose

The Chicago Area Waterway System and Lower Des Plaines River standards shall

protect incidental contact or non-contact recreational uses; commercial activity, including

navigation and industrial water supply uses; and the highest quality indigenous aquatic

life

conditions.

and wildlife that is compatible with

. .

existing

physical

.

hfc

.

habitat and hydrologic

(Source: Amended at

Ill. Reg.

,

effective

)

Section 302.403

Unnatural Sludge

Waters subject to this subpart shall be free

from unnatural sludge or bottom deposits,

floating debris, visible oil, odor, unnatural plant or algal growth, or unnatural color or

turbidity.

(Source: Amended at

Ill. Reg.

,

effective

)

Section 302.404

PH

pH

(STQKEcr-

shall be within the range of

6.5

64

to 9.0 except for natural

causes.

(Source: Amended at

Ill. Reg.

,

effective

)

Section 302.405

Dissolved Oxygen

Dissolved oxygen

(STQRECT-

concentrations shall not be less than

minimum values contained in subsections (a) and

(b) of this Section

a)

For waters listed in Section 303.230 and 303.237, 5.5

mgll as a daily mean

averaged over 30

days and 3.5 mgll at any time.

b)

For waters listed in Section 303.235, 3.5 mall at any time.

(Source: Amended at

111. Reg.

,

effective

)

Electronic Filing, Received, Clerk's Office, June 7, 2007

* * * * * * PC #6 * * * * * *

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DRAFT

January 18,2007

DRAFT

Section 302.406

Bacteria

Beginning March 1,201 0, the following bacteria standards shall not be exceeded during

the recreational season lasting

fiom March 1 through November 30:

a)

The Incidental Contract Recreation Waters listed in Section 303.220 of

this Part shall not exceed a 30-day geometric mean for

Escherichia Coli

{E. Coli)

of 1030 colony forming units (cfu).

b)

The Non-Contract Recreation Waters listed in Section 303.225 of this Part

shall not exceed a 30-day geometric mean for

Escherichia Coli

(E.

Coli)

of 2740 colony forming units (cfu).

C)

There is no bacteria standard for the Non-Recreational Waters listed in 35

Ill. Adm. Code 303.227.

(Source: Old repealed at 6

Ill. Reg. 13750, effective October 26, 1982, new added at

Ill. Reg.

,

effective

)

Section 302.407

Chemical Constituents

a)

The acute standard

(AS) for the chemical constituents listed in subsection

(e) shall not be exceeded at any time except as provided in subsection (d).

b)

The chronic standard (CS) for the chemical constituents listed in

subsection

(e) shall not be exceeded by the arithmetic average of at least

four consecutive samples collected over any period of at least four days,

except as provided in subsection

(d). The samples used to demonstrate

attainment or lack of attainment with a CS must be collected in a manner

that assures an average representative of the

sampling period. For the

metals that have water quality based standards dependent upon hardness,

the chronic water quality standard will be calculated according to

subsection

(e) using the hardness of the water body at the time the metals

sample was collected. To calculate attainment status of chronic metals

standards, the concentration of the metal in each sample is divided

by the

calculated water quality standard for the sample to determine a quotient.

The water quality standard is attained if the mean of the sample quotients

is less than or equal to one for the duration of the averaging period.

c)

The human health standard (HHS) for the chemical constituents listed in

subsection

(f)

shall not be exceeded when the stream flow is at or above

the harmonic mean flow pursuant to Section 302.658 nor shall an annual

average, based on at least eight samples, collected in a manner

representative of the

sampling period, exceed the HHS except as provided

in subsection

(d).

Electronic Filing, Received, Clerk's Office, June 7, 2007

* * * * * * PC #6 * * * * * *

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January 18,2007

DRAFT

d)

In waters where mixing is allowed pursuant to Section 302.102 of this

Part, the following

apply:

1)

The AS shall not be exceeded in any waters except for those waters

for which a zone of initial dilution

(ZID) applies pursuant to

Section 302.102 of this Part.

2)

The CS shall not be exceeded outside of waters in which

mixing is

allowed pursuant to Section 302.102 of this Part.

3

)

The HHS shall not be exceeded outside of waters in which mixing

is allowed pursuant to Section 302.102 of this Part.

e)

Numeric Water Quality Standards for the Protection of Aquatic Organisms

AS

CS

Constituent

Arsenic

iGm

340 X 1.0*=340

Gm

150 X 1.0*=150

(trivalent, dissolved)

Cadmium

Exp[A+Bln(H)l X

Exp[A+Bln(H)l X l 1.1 0 1672-

(dissolved)

11.138672-

J(lnH)(0.041838)1)*, where

J(lnH)(0.041838)1

) *,

where

A= -4.719 and B=0.7409

A=-1.743 and B=1.0166

Chromium

-

16

-

11

(hexavalent, total)

Chromium (trivalent,

Exp[A+Bln(H)l X 0.3 16*,

Exp[A+Bln(H)l X 0.860*,

dissolved)

where A=3.7256 and

where A=0.6848 and

B=0.8 190

B=0.8190

Copper

exp[A+Bln(H)I X 0.960*,

Exp[A+Bln(H)l X 0.960".

(dissolved)

where A=- 1.645 and

where A=- 1.646 and

Cyanide*

*

Lead

(dissolved)

Mercury (dissolved)

Nickel (dissolved)

Zinc (dissolved)

Benzene

Ethylbenzene

B=0.9422

-

22

exp[A+Bln(H)l X { 1.46203-

J(lnH)(O. 145712)))

*,

where

A=-

1 .3 0 1 and

B=1.273

1.4 X 0.85*=1.2

exp[A+Bln(H)l X 0.998*,

where A=0.5 173 and

B=0.8460

-

19

exp[A+Bln(H)l X 0.978*,

where A=0.9035 and

B=0.8473

4200

150

B=0.8545

-

5.2

ExprA+Bln(H)l X l 1.46203-

J(lnH)(O. 145712)l)

*,

where A=-2.863 and

B=1.273

0.77 X 0.85*=0.65

exp[A+Bln(H)l X 0.997*,

where A=-2.286 and

B=0.8460

11

Ep[~+~ln(H)l

X 0.986*,

where A=-0.8 165 and

B=0.8473

860

-

14

Electronic Filing, Received, Clerk's Office, June 7, 2007

* * * * * * PC #6 * * * * * *

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DRAFT

January 18,2007

DRAFT

Toluene

2000

Xvlene(s)

920

where: wg/L

=

microgram per liter,

exprxl

=

base natural logarithms raised to the x- power,

ln(H)

=

natural logarithm of Hardness in milligrams per liter, and

* =

conversion factor multiplier for dissolved metals

** =

sample may be in the available or weak acid dissociable (WAD) forms

fl

Numeric Water Ouality Standard for the Protection of Human Health

Constituent

HHS in micrograms per liter (wg/L)

Mercury

0.012

Benzene

310

.€!)

Numeric Water Quality Standards for other chemical constituents

Concentrations of the following chemical constituents shall not be exceeded except in

waters for which mixing is allowed pursuant to Section 302.102 of this Part.

Constituent

Unit

Standard

Chloride

mn/L

500

Iron (dissolved)

ma/L

-

1 .O

Silver (total)

LG2!L

-

3.2

Selenium (total)

ma/L

-

1 .O

Sulfate

mn/L

[1276.7+5.508(H)-

1.457(C)1 X 0.65

where:

mg/L

=

milligram per liter and wg/L

=

microgram per liter,

H

=

Hardness in ma/L, and

C

=

Chloride in mgL

Electronic Filing, Received, Clerk's Office, June 7, 2007

* * * * * * PC #6 * * * * * *

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DRAFT

January 18,2007

DRAFT

Electronic Filing, Received, Clerk's Office, June 7, 2007

* * * * * * PC #6 * * * * * *

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DRAFT

January 18,2007

DRAFT

(Source: Amended at

Ill. Reg.

,

effective

)

Section 302.408

Temperature

SEE ALTERNATIVE TEMPERATURE PROPOSALS

(Source: Amended at

Ill. Reg.

,

effective

)

Section 302.409

Cyanide (Repealed)

(Source: Repealed at

Ill. Reg.

,

effective

)

Section 302.410

Substances Toxic to Aquatic Life

Any substance or combination of substances toxic to aquatic life not listed in Section

302.407 shall not be present in amounts toxic to indigenous aquatic life

-.

a)

Any substance or combination of substances shall be deemed to be toxic

or harmful to aquatic life if present in concentrations that exceed the

following:

1)

An Acute Aquatic Toxicity Criterion

(AATC) validly derived and

correctly applied pursuant to procedures set forth in Sections

302.612 through 302.618 or in Section 302.621; or

2)

A Chronic Aquatic Toxicity Criterion (CATC) validly derived and

correctly applied pursuant to procedures set forth in Sections

302.627 or 302.630.

b)

Any substance or combination of substances shall be deemed to be toxic

or harmful to wild or domestic animal life if present in concentrations that

exceed any Wild and Domestic Animal Protection Criterion

(WDAPC)

validly derived and correctly applied pursuant to Section 302.633.

C)

The most stringent criterion of subsections (a) and (b) shall apply at all

points outside of any waters within which. mixing is allowed pursuant to

Section 302.102.

In addition, the AATC derived pursuant to subsection

Ja)(l) shall apply in all waters except that it shall not apply within a ZID

that is prescribed in accordance with Section 302.102.

Electronic Filing, Received, Clerk's Office, June 7, 2007

* * * * * * PC #6 * * * * * *

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DRAFT

January 18,2007

DRAFT

d)

The procedures of Subpart F set forth minimum data requirements,

appropriate test protocols and data assessment methods for establishing

criteria pursuant to subsections (a) and

(b). No other procedures may be

used to establish such criteria unless approved by the Board in a

rulemaking or adiusted standard proceeding pursuant to Title VII of the

Act. The validity and applicability of the Subpart F procedures may not

be challenged in any proceeding brought pursuant to Titles VIII or

X of

the Act, although the validity and correctness of application of the numeric

criteria derived pursuant to Subpart

F may be challenged in such

proceedings pursuant to subsection

(e).

e)

Agency derived criteria may be challenged as follows:

1)

A permittee may challenge the validity and correctness of

application of a criterion derived by the Agency pursuant to this

Section only at the time such criterion is first applied in an NPDES

permit pursuant to 35

Ill. Adm. Code 309.152 or in an action

pursuant to Title VIII of the Act for violation of the toxicity water

quality standard. Failure of a person to challenge the validity of a

criterion at the time of its first application shall constitute a waiver

of such challenge in

any subsequent proceeding involving

application of the criterion to that person.

2)

Consistent with subsection

(e)(l), if a criterion is included as, or is

used to derive, a condition of an NPDES discharge permit, a

permittee may challenge the criterion in a permit appeal pursuant

to Section 40 of the Act and 35

Ill. Adm. Code 309.18 1. In any

such action, the Agency shall include in the record all information

upon which it has relied in developing and applying the criterion,

whether such information was developed by the

Agency or

submitted by the Petitioner. THE BURDEN OF PROOF SHALL

BE ON THE PETITIONER TO DEMONSTRATE THAT THE

CRITERION-BASED CONDITION IS NOT NECESSARY TO

ACCOMPLISH THE PURPOSES OF SUBSECTION (a) (Section

40(a)(l) of the Act), but there is no presumption in favor of the

general validity and correctness of the application of the criterion

as reflected in the challenged condition.

3)

Consistent with subsection

(e)(l), in an action where alleged

violation of the toxicity water quality standard is based on alleged

excursion of a criterion, the person bringing such action shall have

the burdens of going forward with proof and of persuasion

regarding

-

the general validity and correctness of application of the

criterion.

Electronic Filing, Received, Clerk's Office, June 7, 2007

* * * * * * PC #6 * * * * * *

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DRAFT

January 18,2007

DRAFT

fl

Subsections (a) through (d) do not apply to USEPA registered pesticides

approved for aquatic application and applied pursuant to the following

conditions:

1)

Application shall be made in strict accordance with label

directions;

2)

Applicator shall be

properlv certified under the provisions of the

Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 135

et seq. (1972));

3)

Applications of aquatic pesticides must be in accordance with the

laws,

regulations and guidelines of all state and federal agencies

authorized by law to regulate, use or supervise pesticide

applications.

(Source: Amended at

Ill. Reg.

,

effective

)

Section 302.412

Total Ammonia Nitrogen

a)

Total ammonia nitrogen must in no case exceed 15

mgL.

b)

The total ammonia nitrogen acute, chronic, and sub-chronic standards are

determined by the equations given in subsections (b)(l) and (b)(2) of this

Section. Attainment of each standard must be determined

by subsections

Jc) and (d) of this Section in mgL.

1)

The acute standard (AS) is calculated using the following equation:

2)

The chronic standard

(CS) is calculated using the following

equations:

A)

During the Early Life Stage Present period, as defined in

subsection

(e) of this Section:

i

)

When water temperature is less than or equal to

14.51°C:

11)

. .

When water temperature is above 14.5 1 "C:

19

Electronic Filing, Received, Clerk's Office, June 7, 2007

* * * * * * PC #6 * * * * * *

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CERTIFICATE OF SERVICE

I, the undersigned, an attorney, certify that I have served upon the individuals named on the

attached Notice of Filing true and correct copies of

COMMENTS REGARDING REVISIONS TO WATER QUALITY STANDARDS

FOR

TOTAL DISSOLVED SOLIDS,

via First Class Mail, postage prepaid on June 7,2007.

Electronic Filing, Received, Clerk's Office, June 7, 2007

* * * * * * PC #6 * * * * * *