1
1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
VOLUME 1
2
IN THE MATTER OF: )
3 )
CONFORMING AMENDMENTS )
4 FOR THE GREAT LAKES ) R97-25
INITIATIVE: 35 Ill. Adm. )
5 Code Part 302.101; )
302.105, 302.Subpart E; )
6 303.443 and 304.222 )
7
8
9 The following is the transcript of a
10 rulemaking hearing held in the above-entitled
11 matter, taken
stenographically by KIMBERLY A.
12 SMITH, CSR, CRR, RDR, a notary public within and
13 for the County of
DuPage and State of Illinois,
14 before Marie
Tipsord, Hearing Officer, at
15 100 West Randolph Street, Room 9-040, Chicago,
16 Illinois, on the 19th day of May, 1997,
A.D.,
17 commencing at the hour of 10:15 a.m.
18
19
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24
L.A. REPORTING (312) 419-9292
2
1 A P P E A R A N C E S:
2
HEARING TAKEN BEFORE:
3
ILLINOIS POLLUTION CONTROL BOARD,
4 100 West Randolph Street
Suite 11-500
5 Chicago, Illinois 60601
(312) 614-4925
6 By: MS. MARIE TIPSORD
HEARING OFFICER
7
8 ILLINOIS POLLUTION CONTROL BOARD MEMBERS PRESENT:
9 Dr. Ronald C. Flemal
Mr. Joseph
Yi
10 Dr. Tanner Girard
11
ADVISORS TO THE BOARD PRESENT:
12
Mr.
Anand Rao
13 Mr.
Hiten Soni
Ms. Amy
Hoogasian
14
15 ILLINOIS ENVIRONMENTAL PROTECTION AGENCY MEMBERS
PRESENT:
16
Mr. Richard C.
Warrington, Jr.
17 Mr. Toby
Frevert
Mr. Robert G.
Mosher
18
19 OTHER AUDIENCE MEMBERS WERE PRESENT AT THE HEARING,
BUT NOT LISTED ON THIS APPEARANCE PAGE.
20
21
22
23
24
L.A. REPORTING (312) 419-9292
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1 I N D E X
PAGES
2
GREETING BY HEARING OFFICER . . . . . . . . . 4-7
3
GREETING BY DR. GIRARD. . . . . . . . . . . . 7-7
4
OPENING STATEMENT OF RICHARD WARRINGTON . . . 8-11
5
TESTIMONY OF ROBERT MOSHER. . . . . . . . . . 11-24
6
TESTIMONY OF CLARK OLSON. . . . . . . . . . . 25-56
7
QUESTION AND ANSWER SESSION . . . . . . . . . 59-62
8
TESTIMONY OF TOBY FREVERT . . . . . . . . . . 62-66
9
OPENING STATEMENT OF WHITNEY ROSEN. . . . . . 69-70
10
QUESTION AND ANSWER SESSION . . . . . . . . . 70-111
11
TESTIMONY OF JOAN KARNAUSKAS. . . . . . . . .113-114
12
QUESTION AND ANSWER SESSION . . . . . . . . .114-130
13
CLOSING COMMENTS BY DR. GIRARD. . . . . . . .131-132
14
CLOSING COMMENTS BY HEARING OFFICER . . . . .132-132
15
16
17 E X H I B I T S
ADMITTED
18
Hearing Exhibit No. 1 . . . . . . . . . . . . . 59
19
Hearing Exhibit No. 2 . . . . . . . . . . . . . 67
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L.A. REPORTING (312) 419-9292
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1 MS. TIPSORD: Good morning. My name is Marie
2 Tipsord, and I've been appointed by the Board to
3 serving as hearing officer for the proceeding
4 entitled "Conforming Amendments for the Great Lakes
5 Initiative," amendments to 35 Ill. Adm. Code
6 302.101, 302.105, 302.Subpart E, 303.443, and
7 304.222. The docket number is R 97-25.
8 To my right is Dr. Tanner Girard. He's
9 the lead Board member in this proceeding. And next
10 to him on his right is Mr. Joseph
Yi, who is also a
11 presiding Board member in this proceeding. Then to
12 Mr. Yi's right is Dr. Ron Flemal, also a member of
13 the Board.
14 Today we also have with us at the far end
15 on my left Amy
Hoogasian. She's Chairman
Manning's
16 assistant. Next to her is
Hiten Soni and next --
17 to my immediate right is Dr.
Anand Rao -- Mr. Anand
18 Rao. Sorry about that.
19 We also have present from the Board today
20 Chuck
Feinen and Amy Muran Felton.
21 This is the first hearing in this
22 proceeding which was originally filed by the Agency
23 on March 21st, 1997. It is a certified Section 28.2
24 rule, which means that pursuant to 28.2 of the
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1 Environmental Protection Act, it is considered a
2 required rule. As such, the Board is required to
3 go to first notice as soon as possible but in no
4 case later than six months from the date of
5 filing. This does not appear in the Illinois
6 Register at this time.
7 The Board on April 3rd, 1997 accepted the
8 proposal, and on May 15th the Board granted in part
9 a motion by the Agency to proceed to first notice
10 after today's hearing. The Board has targeted
11 June 19th, 1997 as the first notice day. Our
12 second hearing will be held on July 28th, 1997 in
13 Waukegan. Copies of the May 15th order are
14 available at the back of the room.
15 Also at the back of the room are sign-up
16 sheets for the notice and service list. If you
17 wish to be on the service list, you will receive
18 all pleadings including filed appearances and
19 prefiled testimony in this case. Also if you are
20 on the service list, you are required to file an
21 appearance or file with all persons on the service
22 list anything you wish to file in this
rulemaking.
23 If you wish to be on the notice list, you
24 will receive all Board and hearing officer orders
L.A. REPORTING (312) 419-9292
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1 in the
rulemaking. Being on the notice list versus
2 the service list does not preclude your ability to
3 participate except in conjunction with where you
4 have to serve orders and things like that and who
5 gets served what. It does not preclude
6 participation in the public hearings.
7 If you have any questions concerning
8 about which of the two lists you should sign up to
9 be on, please talk to me during a break, and I'll
10 be happy to answer any questions. There are also
11 copies of our current service and notice lists at
12 the back of the room.
13 The Board received
prefiled testimony
14 from the Agency for this hearing along with a
15 motion to accept
prefiled testimony.
16 I grant the motion and accept the
prefiled
17 testimony. We will begin with opening statements
18 and then proceed to the Agency's testimony. We
19 will have the Agency read its
prefiled testimony
20 into the record at this hearing. We will then
21 allow for questioning of the Agency. If we have
22 time at the end of the day, we will allow persons
23 who wish to testify who did not
prefile to testify
24 at today's hearing.
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1 I realize there are some people who may
2 wish to testify at the July 28th, 1997 hearing. We
3 will set
prefiling dates at the end of today for
4 the July 28th hearing.
5 Is there anyone else here who may wish to
6 testify today?
7 At this time I see no one. I will ask
8 that question again as the day goes on.
9 At this time I haven't anything.
10 Dr. Girard, do you wish to say anything?
11 DR. GIRARD: I would just like to say on
12 behalf of the Board I'd like to welcome everyone
13 here to this hearing today. The Board is
14 appreciative of the considerable amount of work
15 and effort that has gone into this proposal as
16 reflected by what's been filed with the Board.
17 We look forward to a thorough and efficient
18 rulemaking process, and the Board is committed to
19 doing this
rulemaking as expeditiously as possible;
20 and hopefully if there are no surprises, we should
21 be finished in November.
22 Thank you.
23 MS. TIPSORD: Mr.
Yi?
24 MR. YI: No.
L.A. REPORTING (312) 419-9292
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1 MS. TIPSORD: Dr. Flemal?
2 DR. FLEMAL: No.
3 MS. TIPSORD: At this time we will proceed
4 with opening statements.
5 Mr.
Warrington.
6 MR. WARRINGTON: Thank you. My name is Rich
7 Warrington. I'm the associate counsel for the
8 Bureau of Water with the Environmental Protection
9 Agency; and on behalf of our director, Mary
Gade,
10 we'd like to welcome you and thank you for your
11 interest in this proceeding. And specifically we'd
12 like to thank the Board for their attention to
13 expediting and making this
rulemaking both quick
14 and efficient.
15 By way of background, the United States
16 and Canada have been engaged in a dialogue for
17 several years to basically improve the quality of
18 our shared Great Lakes waters. That dialogue
19 reached fruition by the passage of the Great Lakes
20 Critical Programs Act which established a timetable
21 and a requirement for
rulemaking on behalf of the
22 Great Lakes states to reduce or eliminate discharge
23 of toxic pollutants to the Great Lakes waters.
24 Consequently, the United States
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1 Environmental Protection Agency adopted a set of
2 rules known as the Great Lakes Initiative which
3 established numerical water quality standards,
4 establish a procedure for deriving water quality
5 standards that will be protective of aquatic life,
6 of wildlife, and of human health and also establish
7 a set of implementation procedures that would
8 control the application of these new standards.
9 The United States Environmental
10 Protection Agency promulgated these rules
11 approximately two years ago and established a
12 deadline for their adoption, which technically has
13 passed on March 23rd of this year. The State of
14 Illinois is participating, albeit a bit late. Part
15 of the basic rationale for this delay is that while
16 the other Great Lakes states have thousands of
17 dischargers that will be affected and can
18 potentially improve their discharges to the Great
19 Lakes, the State of Illinois has only approximately
20 18 dischargers.
21 Although we may stand to benefit a great
22 deal by improved health for our aquatic species and
23 for human health and wildlife, we simply don't have
24 enough
dischargers to make that much of a
L.A. REPORTING (312) 419-9292
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1 difference. And I believe we might hear some
2 comments later today from some of those affected
3 dischargers. So today what we would like to do is
4 present our application of these Great Lakes
5 Initiative rules to the existing State of Illinois
6 system.
7 We realize that the Board and its
8 predecessors have adopted water quality standards
9 and derivation techniques for these standards that
10 have been quite successful in reducing the amount
11 of pollution going into Lake Michigan. Nonetheless
12 we are under a federal mandate to adopt regulations
13 that are consistent with the federal Great Lakes
14 Initiative.
15 In order to explain our proposal today,
16 we have hopefully four witnesses. We'll start with
17 Mr. Robert
Mosher, who will explain the
18 derivation -- or the establishment of numerical
19 water quality standards.
20 We have Dr. Clark
Olson, who will explain
21 the derivation procedures used to derive criteria
22 and values for the protection of aquatic life, of
23 wildlife, and of human health.
24 And also, time allowing, we'll have a
L.A. REPORTING (312) 419-9292
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1 presentation by Mr. Toby
Frevert on the Agency
2 obligation to adopt implementation procedures to
3 apply these Board standards to NPDES or National
4 Pollutant Discharge Elimination System
permittees.
5 And we have also invited a representative
6 from the United States Environmental Protection
7 Agency to give comments and hopefully answer some
8 questions. She has informed us that she is
9 currently in a meeting with some citizens of, I
10 believe, the State of Indiana, and she will be
11 joining us as soon as possible.
12 So with that, I think we can turn this
13 over to Mr.
Mosher and Dr. Olson.
14 Would you swear our witnesses?
15 (Mr.
Mosher, Dr. Olson, and
16 Mr.
Frevert were duly sworn as
17 witnesses by witnesses by the
18 court reporter.)
19 MR. WARRINGTON: Can we also add that we've
20 sworn Toby at the same time?
21 MR. FREVERT: Say "yes" as well.
22 MR. WARRINGTON: Bob, would you like to start?
23 MR. MOSHER: My name is Robert G.
Mosher, and
24 I'm employed by the Illinois Environmental
L.A. REPORTING (312) 419-9292
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1 Protection Agency as supervisor of the Standards
2 and Monitoring Support Unit of the Planning
3 Section, Division of Water Pollution Control. My
4 responsibilities include drafting and reviewing new
5 and updated water quality standards for use in
6 Illinois and the administration of existing
7 standards, chiefly through the derivation of water
8 quality based limits for NPDES permits.
9 I have been in my current job title for
10 approximately seven years. In four additional
11 years of employment in the Division of Water
12 Pollution Control, I have been responsible for
13 water quality data management as well as other
14 Standards Unit activities.
15 Prior to joining the Agency, I was a
16 contract researcher for the Monsanto Company,
17 investigating the toxicity of effluents and
18 sediments to aquatic life in both field and
19 laboratory situations. I also taught biology at
20 Belleville Area College and worked for an
21 environmental consulting firm after graduating from
22 college. I have a Bachelor of Science degree in
23 environmental biology and zoology and a Master of
24 Science degree in zoology from Eastern Illinois
L.A. REPORTING (312) 419-9292
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1 University.
2 As a result of the Water Quality Guidance
3 for the Great Lakes system, which is known as the
4 Great Lakes Water Quality Standards Initiative or
5 GLI -- and that is found at 60 Fed. Reg. 15366,
6 March 23rd, 1995, Exhibit C -- Illinois is required
7 to adopt into its standards revised water quality
8 criteria and procedures for its Great Lakes waters
9 or be subject to federal promulgation.
10 The GLI has been a cooperative effort
11 over several years by numerous stakeholders to
12 develop a comprehensive package of water quality
13 standards, narrative water quality standards
14 including derivation procedures,
antidegradation
15 regulations, and implementation procedures by
16 applying the latest scientific approaches to the
17 unique environment and problems of the Great
18 Lakes. The intention of the GLI is to find a
19 balance between uniformity among the states while
20 allowing for local flexibility.
21 With regard to Illinois, Lake Michigan's
22 ecosystem and hydrology, as well as its history of
23 pollution problems, make it unique as far as other
24 waters of the State are concerned. No other
L.A. REPORTING (312) 419-9292
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1 Illinois Lake is as large, as deep or as cold, or
2 has the extremely long retention time as Lake
3 Michigan. The long retention time has exacerbated
4 the major pollution problem of the Lake; the
5 bioaccumulation of toxic substances in fish and
6 wildlife.
7 Special water quality standards
8 recognizing the singular nature of Lake Michigan
9 already exist at 35 Ill. Adm. Code 302.Subpart E.
10 Water quality standards for substances not
11 specially listed in this subpart are commensurate
12 with the General Use standards of Subpart B and the
13 Public and Food Processing Water Supply standards
14 of Subpart C. While the existing standards apply
15 only to Lake Michigan itself, GLI standards are to
16 be applied to the entire basin or watershed of the
17 Lake.
18 In Illinois, this watershed has been
19 extensively altered to reduce drainage to the Lake
20 and thereby protect it from pollution. The Chicago
21 and Calumet Rivers no longer empty into the Lake
22 due to the construction of locks and canals that
23 caused the flow to be reversed and head down the
24 Illinois Waterway to the Mississippi. The Deep
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1 Tunnel storm water storage project has ensured that
2 the frequency of storm events that circumvent the
3 flow reversals is minimal.
4 The bodies of water covered by this
5 proposal have been defined at Section 303.443.
6 Given the differences in hydrology, chemistry, and
7 ecology between the open waters of Lake Michigan
8 and the harbors, areas enclosed by breakwaters, and
9 tributaries to the Lake, the GLI proposes two
10 separate
subcategories of waters within the Lake
11 Michigan Basin. Both are covered by the GLI
12 standards but to degrees appropriate to the nature
13 and uses of the specific waters.
14 Primarily this entails the distinction
15 that the harbors, enclosures, and tributaries will
16 not be used as public water supplies and that these
17 waters historically have not met, and cannot
18 reasonably be expected to meet, the standards
19 originally adopted for Lake Michigan that seem to
20 have been intended to apply to the open water or
21 oligotrophic portion of the Lake. And
22 " oligotrophic" is our lakes exhibiting minimal
23 nutrient enrichment.
24 For purposes of convenience, most General
L.A. REPORTING (312) 419-9292
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1 Use and Public Water Supply standards, from 35 Ill.
2 Adm. Code Subparts B and C respectively, have been
3 carried over to Subpart E. All applicable
4 standards for Lake Michigan and its watershed are
5 now proposed to be housed together in the
6 regulations. New standards proposed as a result of
7 the GLI are to be added to the existing component.
8 It is important to note that the GLI and
9 United States Environmental Protection Agency in
10 general refer to "criteria" when discussing
11 concentrations of substances that are deemed
12 protective of various designated uses of waters.
13 These criteria are intended for states to adopt as
14 water quality standards.
15 Water quality standards now present --
16 now present in the Board's regulations, and as
17 proposed in this petition, come in two forms.
18 Numeric standards, as described in my testimony,
19 are specific concentrations of chemicals which
20 cover many of the most common substances
21 encountered in the aquatic environment such as
22 metals, common organic pollutants, and several
23 other inorganic molecules. These substances have
24 been extensively studied for their effects on
L.A. REPORTING (312) 419-9292
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1 aquatic biota, human health, wildlife, or other
2 uses of water resources due to their prevalence in
3 the environment or high profile as pollutants of
4 concern.
5 New research is unlikely to cause these
6 standards to be significantly changed. A high
7 degree of certainty exists in the suitability and
8 correctness of the proposed numeric standards for
9 the Lake Michigan Basin, hence our willingness to
10 propose them as immutable (without future Board
11 rulemaking) numeric standards.
12 Complementing numeric water quality
13 standards are narrative standards. Section 302.519
14 is a statement of water quality goals. In essence,
15 this standard states that no substance should be
16 present in the waters of the Lake Michigan Basin in
17 toxic amounts. The substances covered by the
18 narrative standards are all substances other than
19 those listed in the numeric standards portion of
20 the regulation.
21 However, some substances -- for example,
22 benzene -- are regulated by numeric standards in
23 one portion of the basin and by narrative standards
24 in others. Section 302.519 goes on to provide
L.A. REPORTING (312) 419-9292
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1 directions for determining how the toxic levels of
2 substances are to be determined for various
3 protected uses such as human health and aquatic
4 life.
5 For aquatic life protection, two tiers or
6 levels of confidence of criteria are created. The
7 word "criterion" it used to express a numeric
8 expression of a narrative standard. Tier I
9 criteria are backed by an extensive database of
10 toxicity information and result in values that are
11 similar in confidence to the numeric standards
12 herein proposed. Tier II values are criteria that
13 are based on lesser amounts of data, and these
14 criteria may have a greater likelihood to change as
15 additional data is collected. Dr.
Olson will
16 further describe the components of the narrative
17 Lake Michigan Basin standards in his testimony for
18 this petition.
19 All the numeric standards hereby proposed
20 for the Lake Michigan Basin, which have their
21 source in the GLI, are derived from Tier I
22 toxicity-based procedures. The standards for lead
23 proposed in 302.504, paragraph (a), are preliminary
24 Tier I standards, however. Some numeric standards
L.A. REPORTING (312) 419-9292
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1 in this proposal for parameters not included in the
2 GLI are based on different approaches. Several
3 standards originally found in Subpart E were
4 designed to protect the unique
oligotrophic nature
5 of the open Lake.
6 In the interest of continuity and to
7 ensure that the high quality of the Lake is
8 preserved, these standards are maintained. Several
9 General Use standards that now are also proposed as
10 Lake Michigan Basin standards are based on other
11 uses besides the aquatic life toxicity, human
12 health, and wildlife uses found in the GLI. The
13 standard for boron, for example, is based on
14 toxicity to terrestrial plants if surface waters
15 are used for irrigation. Barium, fluoride,
16 phenols, and sulfate standards also have
nontypical
17 reasons for existence, which do not fall into GLI
18 categories, but nonetheless must be retained as
19 part of a total standards package.
20 Some existing standards from the Public
21 and Food Processing Water Supply standards of
22 Subpart C have not been carried over to the updated
23 Subpart E. These substances consist of the old
24 generation pesticides that in some cases are
L.A. REPORTING (312) 419-9292
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1 superseded by GLI standards. Where the GLI has not
2 suggested a numeric standard for one of these
3 substances, we have decided that the protection of
4 the Lake is better served by employing the
5 narrative standard.
6 The narrative prohibition against
7 toxicity provides that a criterion will be derived
8 where a numeric standard does not exist. Given the
9 age of many of the standards in Subpart C, a more
10 scientifically valid protective value will be
11 obtained from the narratives standards than if we
12 were to rely on the existing numeric standards.
13 In the GLI, numeric standards and
14 equations have been presented for 15 substances for
15 protection of aquatic life for acutely toxic
16 impacts; 14 substances for protection of aquatic
17 life from chronically toxic impacts; 18 for
18 protection of human health, and four for protection
19 of wildlife.
20 The human health standards are for
21 protection of drinking and
nondrinking water use
22 (but including fish consumption in both cases) and
23 also for both carcinogenic and
noncarcinogenic
24 events. Numeric standards for the protection of
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1 wildlife are a new concept to Illinois water
2 quality standards. Some substances have a standard
3 for more than one category of use protection; for
4 example, aquatic life, human health, et cetera.
5 An acute standard for selenium is not
6 proposed at this writing because the criterion in
7 the GLI guidance is being revised. It is
8 anticipated that USEPA will derive a final value
9 before this proceeding is finalized, and we will
10 amend our petition as soon as this criterion
11 becomes known.
12 Mercury and PCB GLI criteria are
13 presently undergoing challenges in the federal
14 courts. The proposed standards for them given at
15 302.504 are, therefore, subject to change. The
16 Agency will recommend that the Board adopt the
17 finalized mercury and PCB standards when they
18 become available.
19 The state of the substance being
20 considered for a criterion is addressed more
21 thoroughly in this
rulemaking than in the past.
22 For numerical standards for metals, the freely
23 dissolved form is being proposed as the basis of
24 the standard. However, in most cases there will be
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1 only a slight difference from this -- from the
2 value of the standard based on total metal.
3 Most of the numeric water quality
4 standards for Lake Michigan are found at Section
5 304.504 -- I'm sorry. Excuse me -- Section
6 302.504. Four subsections have been created to
7 distinguish between different applications of the
8 various standards. Subsection (a) provides acute
9 and chronic aquatic life standards and human health
10 standards applicable in all waters of the basin.
11 As in General Use standards, acute standards must
12 not be exceeded at any time outside the zone of
13 initial dilution, and chronic standards and human
14 health standards must not be exceeded by an average
15 of samples outside of a mixing zone.
16 Subsection (b) standards apply to all
17 waters of the basin except where superseded by a
18 more stringent standards applicable to the open
19 waters of Lake Michigan. As in the General Use
20 standards from which these values were taken, no
21 single sample taken outside a mixing zone may
22 exceed Subsection (b) standards.
23 Subsection (c) standards apply to the
24 open waters of Lake Michigan. They are applied as
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1 concentrations not to be exceeded in any sample
2 collected outside of a mixing zone. While the GLI
3 dictates that the last nine of the substances
4 listed in Subsection (c) are to be applied on an
5 average basis, we have not proposed this for
6 several reasons.
7 These nine standards exist mainly to
8 protect drinking water supplies. Averaging should
9 not apply to this use because such standards should
10 never be exceeded. The Lake is large and for that
11 reason water chemistry is fairly stable and,
12 therefore, a single sample should give an accurate
13 indication of conditions. Finally, it would be
14 overly burdensome to require numerous collecting
15 trips to the open waters of the Lake to obtain
16 water quality data, given the large expanses of
17 water present. These nine substances are regulated
18 through the narrative standard in the
nonopen water
19 portions of the Lake and its basin for uses other
20 than drinking water.
21 Subsection (d) provides standards for
22 bioaccumulative substances. These apply everywhere
23 in the basin. As in Subsection (a), acute
24 standards are not to be exceeded by any single
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1 sample collected outside a zone of initial
2 dilution. Chronic human health and wildlife
3 standards are applied as averages outside a mixing
4 zone. Establishing standards for, and working
5 toward the elimination of,
bioaccumulative
6 substances is the primary goal of the GLI. For
7 this reason, mixing to allow compliance with these
8 standards will be eliminated from consideration by
9 March 23rd, 2007.
10 Ammonia standards are given at 302.517.
11 The existing Lake Michigan standard is preserved as
12 the open water standard. This very low
13 concentration of total ammonia (as nitrogen) was
14 never achievable in the harbors and enclosures of
15 the Lake. The proposed regulations utilize the
16 recently adopted General Use standards for these
17 in-shore areas and the tributaries of the
18 watershed. Recent developments in the review of
19 ammonia water quality standards lead us to believe
20 that the General Use standards will be protected --
21 protective of the trout and salmon that
22 occasionally may be found utilizing in-shore
23 habitats.
24 MR. WARRINGTON: Thank you Mr.
Mosher.
L.A. REPORTING (312) 419-9292
25
1 Do you want to start questions now or
2 should we go to Dr.
Olson?
3 MS. TIPSORD: I would prefer that we do both
4 and then we'll ask questions. I do have one
5 clarification point that I wanted to check with
6 Mr. Mosher before we move on.
7 On page 1 in reading the citation to the
8 Great Lakes Water Quality Standards Initiative of
9 the Federal Register, after the March 1995 date you
10 refer to Exhibit C. That is Exhibit C to the
11 proposal, is it not, not Exhibit C to the Federal
12 Register?
13 MR. WARRINGTON: That is correct.
14 DR. OLSON: Do you want me to start? Okay.
15 My name is Clark
Olson. I have been
16 working at the Illinois Environmental Protection
17 Agency in the Division of Water Pollution Control
18 since 1979. I was first employed to work on
19 special projects connected to the
toxics control
20 program and now for about 10 years in the standards
21 section. I have advanced degrees in ecology and
22 development biology and postdoctoral study and
23 research in toxicology at North Carolina State
24 University in Raleigh, North Carolina. I
L.A. REPORTING (312) 419-9292
26
1 participated in the "
toxics" regulatory proceedings
2 of R88-21 and other regulatory hearings. Since the
3 promulgation of R88-21, I have calculated water
4 quality criteria for a number of substances and
5 have helped to apply them in permits and other
6 uses.
7 The procedures for deriving water quality
8 criteria. In addition to the numerical criteria
9 listed in Section 302.504, there is a narrative
10 standard for come certain tracings of other
11 chemical substances in 302.519, which requires that
12 various kinds of criteria be calculated for a
13 substance to make sure that all uses of Lake
14 Michigan waters will be protected. The procedures
15 for the translation of Section 302.519 are found in
16 Sections 302.533 through 302.570. These replace
17 and revise the procedures in 35 Ill. Adm. Code
18 302.Subpart F. These procedures are directed at
19 four main targets: aquatic life, 302.533 to
20 302.545; wildlife, 302.555; human health, 302.560
21 to 302.570; plus the
bioaccumulation factor -- or
22 BAF -- 302.550, which is necessary to derive the
23 wildlife and human health criteria.
24 Within the sections for aquatic life
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1 there are procedures to derive criteria for both
2 short-term (acute) and long-term (chronic)
3 effects. Wildlife and human health criteria are
4 both for chronic effects. The human health
5 sections are divided into two procedures for
6 deriving criteria for both threshold and
7 nonthreshold effects. Within these procedures
8 there is also provision for deriving criteria to
9 protect either drinking water or
nondrinking water
10 usages.
11 In addition, there is a distinction in
12 the procedures between Tier I criteria and Tier II
13 values -- which Bob has already discussed
14 shortly -- although both can be applied to protect
15 water quality. In general, the procedures for
16 deriving Tier I criteria require more and better
17 quality data than for Tier II values. Tier I
18 criteria could be adopted in the future as reliable
19 numerical standards. Tier II procedures are
20 provided for aquatic life and human health only.
21 Numbers generated by these procedures
22 could be used for numerical water quality
23 standards, but this is not required by the GLI.
24 Instead, these criteria should be generated when
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28
1 necessary for various
usages -- uses, especially to
2 calculate water quality based effluent limits in
3 NPDES permits. Since the Tier II method is
4 believed to provide a conservative value, there
5 should be a stimulus to the
discharger to produce
6 enough toxicity data so that a Tier I 302 -- Tier I
7 criterion can be derived. In the existing 35 Ill.
8 Adm. Code 302.Subpart F there are procedures for
9 calculating default acute and chronic criteria for
10 aquatic life, but the term "Tier II" is not used.
11 Procedures for derivation of the three
12 different categories of criteria differ because of
13 the entities to be protected and the kind of data
14 that is available. Although the procedures are
15 different for the three protected entities, there
16 is an attempt to standardize the approaches as much
17 as possible.
18 The following is an outline of this
19 approach: I. "Introductory matters" -- this is an
20 outline -- under "Introductory matters," there may
21 be purpose, goal, description, general definition,
22 entity to be protected, and endpoints. For
23 instance, in the aquatic life, the aquatic
24 community is toe protected. Under "wildlife," we
L.A. REPORTING (312) 419-9292
29
1 have a vaguer target which are the populations of
2 wildlife. These are used -- an attempt here is
3 being used to use these ecological references in
4 the terms that ecologists use. Finally, under
5 "human health," we are trying to protect
6 individuals. Also under "Introductory matters" are
7 exposure, contact -- by exposure: contact,
8 ingestion, and definitions.
9 Roman Numeral II. "Minimal database and
10 quality control," which is improved upon in the GLI
11 procedures over what we already have. Number and
12 type of organisms represented, experimental
13 conditions, data sources, and data sources (sic).
14 Roman Numeral III. "Data handling. Dose
15 conversion, averaging, extrapolation, uncertainty
16 factors, scaling."
17 Roman Numeral IV. "Calculation equation"
18 and the definition of terms in that equation.
19 Finally, something that we don't actually
20 do informally would be assessment. And that's to
21 make sure we really are knowing what we're doing,
22 Roman Numeral V.
23 The BAF calculation procedure does not
24 fit into the above outline since it is just a
L.A. REPORTING (312) 419-9292
30
1 component of the procedures for wildlife and human
2 health. The BAF, that is, is a component.
3 Data sources and quality assessment are
4 defined in the Federal Register or trawl guidance
5 documents incorporated by reference to supplement
6 the requirements in the regulation.
7 For aquatic life the entity to be
8 protected, as I said, is the whole aquatic
9 community. All adequate toxicity data for various
10 native species are obtained. A statistical
11 approach is then used -- using data for various
12 species is used to assure that almost all species
13 in a given ecosystem will be protected and that the
14 community will remain intact.
15 For wildlife and human health the
16 criterion calculation is simply an equation
17 expressing a "safe" dose in the numerator in terms
18 of mass per day per individual and exposure in the
19 denominator in terms of liters per day per
20 individual. The exposure expression in the
21 denominator accounts for both the water ingested
22 (either by purposeful drinking or accidental
23 ingestion while swimming) and fish or other aquatic
24 life eaten by wildlife or humans. It's certainly
L.A. REPORTING (312) 419-9292
31
1 an equal amount of water volume used by the fish so
2 it's all in volume terms. The fish consumption
3 factor is expressed in terms of liters of water by
4 means of the BAF.
5 For wildlife the approach is to protect
6 populations of the more visible species of mammals
7 and birds from harm of ingesting water and aquatic
8 organisms. Since little toxicity data is available
9 for native species of wildlife, the procedure
10 simulates the effect in several target wildlife
11 species from the best laboratory data on
12 conventional laboratory organisms such as rat,
13 chicken, et cetera. For human health the protected
14 entity is (almost all) individual humans in a
15 region. Since there is usually little data on
16 humans -- in other words,
epidemiology -- the best
17 data from laboratory animal experiments is used
18 with uncertainty factors to estimate a safe dose
19 for humans.
20 The biggest differences in the proposed
21 rule compared to Subpart F are as follows: In
22 aquatic life there is an increased database for
23 Tier I, and the Tier II method is different.
24 Tier I and Tier II are explicitly differentiated.
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32
1 The BAF section is more elaborate with a clear
2 distinction between
bioconcentration -- or BCF --
3 and BAF, and all measures have to be made
4 equivalent to a BAF normalized for percent lipid in
5 the test organism and percent freely dissolved
6 substance in the water.
7 The wildlife criterion data requirements
8 are more clearly laid out than in Subpart F. The
9 target species approach is more elaborate but is
10 more clear about what is actually being protected.
11 The human health procedure is essentially the same
12 as in Subpart F, but data requirements are
13 clearer. There is provision for deriving either
14 Tier I criteria or Tier II values.
15 The risk level and fish consumption
16 values are different. Quantitatively it is
17 difficult to say whether aquatic life criteria or
18 values will be more or less than those calculated
19 according to the existing Subpart F. For wildlife
20 and human health there will be a tendency for
21 criteria/values to be somewhat lower since the BAF
22 factor will probably be greater.
23 Now we're going into a detailed
24 discussion of each of these sections. It's kind of
L.A. REPORTING (312) 419-9292
33
1 an encyclopedia.
2 Aquatic life. The aquatic life section
3 uses basically the same approach as found in
4 302.Subpart F but with some modifications. As in
5 Subpart F, there are separate procedures for acute
6 and chronic criteria, and both can be made
7 dependent upon water quality characteristics such
8 as hardness or pH if necessary. In addition, the
9 distinction between Tier I and Tier II is
10 clarified.
11 The data requirements have been increased
12 for a Tier I acute or chronic criterion. Instead
13 of five required
taxa (usually a family) for the
14 minimum database, eight are now required. This
15 will be in agreement with the national guidelines
16 and will assure that the criterion is more
17 accurate. However, it will also mean that there
18 will be fewer substances for which a Tier I
19 criterion can be calculated.
20 Some of the required taxonomic groups are
21 slightly different from those in Subpart F to agree
22 with the GLI. All the taxonomic groups are for
23 animals, but plant data must be included in the
24 database, if available. Data for
salmonids is
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34
1 required, in contrast to criteria for
downstate
2 waters. The mathematical procedure for calculation
3 of a criterion, whether independent or dependent on
4 water quality characteristics, remains the same as
5 in Subpart F except for one small detail. The
6 parameter T in Section 302.615 is no longer
7 necessary since data for eight
taxa are now
8 required. And that was sort of an adjustment
9 factor.
10 The proposed rule includes a more
11 elaborate Tier II procedure than that in
12 Subpart F. It uses a sliding scale of adjustment
13 factors rather than simply dividing the lowest
14 datum by 10, no matter how much data is available.
15 Values will still be generally lower than criteria
16 derived by the default method in Subpart F,
17 however. The values for the adjustment factors
18 were worked out by USEPA Duluth laboratory by
19 analysis of a large number of data sets for a large
20 number of substances.
21 For most substances there are usually not
22 enough data to do a regular Tier I chronic
23 criterion with eight
taxa. Instead acute chronic
24 ratios -- or
ACRs -- are used to derive the chronic
L.A. REPORTING (312) 419-9292
35
1 criterion from the acute criterion. In the new
2 methodology
ACRs are averaged rather than taking
3 the highest as in Subpart F. In the proposed rule
4 an ACR can be based on data for salt water
5 organisms, also in contrast to Subpart F.
6 A Tier II chronic value procedure using a
7 default ACR of 18 is slightly less stringent than
8 the value of 25 used in Subpart F and, in general,
9 would lead to a slightly higher criterion than one
10 derived according to Subpart F.
11 A criterion can be made for restrictive
12 to protect "recreationally" or "commercially"
13 important species as in Subpart F. These species
14 are expected to be well known sport fish or known
15 fish -- known food of such fish. The term
16 "ecologically important" used in Subpart F is not
17 used in this proposal because the GLI work group
18 was unable to define that term.
19 This is the second part, the
20 bioaccumulation factor. The BAF for a chemical is
21 necessary for deriving a water -- wildlife or human
22 health criterion or value. The BAF relates the
23 amount of substance in an organism to the amount in
24 the water, in nature, when all sources of exposure
L.A. REPORTING (312) 419-9292
36
1 of the substance to that organism are considered.
2 These include the water itself, food, and
3 sediment. Ideally, it should be calculated under
4 steady state conditions.
5 In contrast, a
bioconcentration factor --
6 or BCF -- measures uptake from water only, under
7 experimental conditions. Organic substances
8 accumulate in organisms because of greater
9 solubility of the lipid-rich structures of the
10 organism such as cell membranes and lipid storage
11 droplets. Inorganic substance may accumulate by
12 becoming attached to proteins.
13 At equilibrium, molecules of a substance
14 would be entering and leaving the organism at equal
15 rates. However, in nature, for substances with a
16 high propensity to
bioaccumulate, there is
17 apparently a
disequilibrium in that substances
18 ingested with food tend to stay in the organism,
19 thereby making a BAF higher than a BCF. In a "food
20 web" of larger organisms eating smaller organisms,
21 the larger organisms in a higher
trophic level may
22 contain higher concentrations of the substance than
23 those in the lower
trophic level. This phenomenon
24 is called "
biomagnification" and is very complex in
L.A. REPORTING (312) 419-9292
37
1 nature due to various growth and change of prey
2 organizations over time.
3 These various processes are accounted for
4 in the GLI derivation procedure in a much more
5 explicit way than in the current procedures in
6 Subpart F and a more elaborate way. The process of
7 deriving the BAF takes place in several steps.
8 Data of varying degrees of reliability, which can
9 determine whether a Tier I or Tier II criterion can
10 be calculated, are obtained from studies in the
11 field or laboratory or from calculation.
12 This data is then normalized, for the
13 amount of substance freely dissolved in the water
14 and the lipid content of the organism, to a
15 standard intermediate value called the baseline
16 BAF -- or
dBAF. Finally, the
dBAF value is
17 modified to be suitable for use in either a
18 wildlife or human health criterion calculation.
19 The following is a more detailed description of
20 these steps. This is mainly applicable to organic
21 substances.
22 Data may be obtained from four types of
23 studies. The most preferred datum is an actual BAF
24 measured in the field, in the Great Lakes, and
L.A. REPORTING (312) 419-9292
38
1 where there is some assurance that equilibrium has
2 been (nearly) attained. This provision is also
3 found in Subpart F although not as in as clear a
4 form.
5 The second kind of study is from studies
6 of accumulation from sediment -- this is
7 abbreviated as BSAF -- in the Great Lakes. There
8 is no provision for using such data in Subpart F,
9 since the methodology has been developed more
10 recently by USEPA and other workers.
11 The third kind of data is a BCF measured
12 in the laboratory, as in Subpart F, but we'll see
13 that it's modified later on.
14 The fourth kind of data is a calculated
15 BCF based on an equation which is also similar to
16 one this Subpart F.
17 The second step is to standardize the
18 above data to a baseline BAF. The procedures are
19 different depending on the kind of data used.
20 A dBAF is a BAF that is calculated on the basis of
21 only that portion of the substance which is freely
22 dissolved in the water and not associated with
23 dissolved or particulate organic matter. This
24 means that the dissolved and particulate organic
L.A. REPORTING (312) 419-9292
39
1 carbon have to be known or estimated from empirical
2 models.
3 The
dBAF is also normalized with respect
4 to lipid content of the test or representative
5 organism. In essence, the
dBAF is what the BAF
6 would be if the test organism were 100 percent
7 lipid. The value of the
dBAF is usually about
8 10 times that of the BAF.
9 Number 1. A field measured BAF is
10 normalized to a
dBAF by adjusting for the fraction
11 of the substance freely dissolved in the water
12 column (vs. total substance) and the lipid content
13 in the representative organism -- usually fish --
14 which is usually a fish, in the study.
15 Quantitatively, the term for the fraction of freely
16 dissolved substance becomes important only for
17 substances for which the logarithm of the
octanol
18 water partition coefficient -- or log
Kow -- is
19 higher than five. This adjustment is not found in
20 Subpart F.
21 Number 2. Using the BSAF. Sediment
22 accumulation data is important for substances that
23 are highly
bioaccumulative and poorly water soluble
24 and so are difficult to measure in the water
L.A. REPORTING (312) 419-9292
40
1 column. The method does not depend on true study
2 steady state for the sediment. It is a ratio
3 method where one has a BSAF for a chemical with the
4 unknown BAF, but a BSAF and BAF for a reference
5 chemical, presumably of lower
bioaccumulative
6 potential.
7 BAF/
dBAFs are available in the Technical
8 Support Document (Exhibit G) for a number of
9 chemicals, and these can be used with the BSAF for
10 the site of interest if there is not a
11 site-specific BAF for the reference chemical at the
12 site and in the same study.
13 When using -- this is a new paragraph --
14 when using BCF data below, a new parameter, the
15 food chain multiplier -- or FCM -- is introduced to
16 convert the BCF to a BAF. The food claim
17 multiplier is a measure of the
biomagnification
18 propensity of a substance in the
trophic level of a
19 food chain. The food chain multiplier values for
20 trophic levels 3 and 4 in the Great Lakes food
21 chain have been developed from a study of
22 biomagnification of various chemicals in Lake
23 Ontario by
Gobas -- G-o-b-a-s -- in 1993 which was
24 found in the Journal of Ecological Modeling, Volume
L.A. REPORTING (312) 419-9292
41
1 69, pages 1 through 17.
2 Values of food chain multipliers are
3 found in Table B-1 of the GLI, (Exhibit G). The
4 introduction of the food chain multiplier in the
5 GLI procedure increases the value of the BAF by two
6 to 27 fold, depending on the
trophic level used and
7 the Kow of the substance. This means that at
8 approximately a log
Kow of seven the criterion will
9 be about 10 to 20 fold lower than if the food chain
10 multiplier were not used. Therefore, this
11 parameter is used to -- to help form a BAF.
12 From a laboratory BCF. This is Number
13 3. The baseline BAF can be derived from a
14 laboratory measured BCF by normalizing the BCF for
15 the fraction of substance freely dissolved of the
16 chemical and the lipid content of the test organism
17 times the food chain multiplier.
18 Number 4. From a calculated BCF. A
19 baseline BAF can also be derived from a calculated
20 baseline BCF times the food chain multiplier. The
21 baseline BCF is simply equal to the
Kow for the
22 substance. Although this seems like a coincidental
23 result, it is simply because the
Kow is a good
24 measure for the partitioning between water and
L.A. REPORTING (312) 419-9292
42
1 lipids of the organism; in other words, it's sort
2 of a definition.
3 New paragraph. The BAF procedure is
4 somewhat different for inorganic substances. Since
5 criteria already have been calculated for a number
6 of inorganic substances, there may not be much
7 opportunity to do more. Some inorganic substances
8 actually occur in an organic form so the procedure
9 for organic substances may be followed in that
10 case.
11 In addition, care is needed because some
12 inorganic substances -- for instance, metals -- are
13 needed for nutrition. Thus, there is probably more
14 a need to follow a case-by-case method for
15 inorganic substances. However, in general, only a
16 field measured BAF or laboratory measured BCF
17 should be used, and the baseline BAF step is
18 simplified because the only adjustment is due to
19 the fraction freely dissolved of the chemical in
20 water, and the food chain multiplier is usually one
21 for both
trophic levels 3 and 4.
22 For organic substances the normalized
23 baseline BAF obtained by one of the methods above
24 is used to derive a human health to or wildlife
L.A. REPORTING (312) 419-9292
43
1 specific BAF by using standardized values for
2 dissolved organic carbon (DOC) and particulate
3 organic carbon (POC) and the lipid concentration of
4 the prey. The lipid concentrations are derived
5 empirically from a large database supplied by the
6 states. These provisions are more elaborate than
7 those in Subpart F.
8 For both inorganic and organic substances
9 the BAF used in calculating human health
10 criteria/values are based on edible tissue for fish
11 only. For wildlife criteria the BAF is based on
12 whole tissue for both fish and invertebrates.
13 These provisions are similar to those in
14 Subpart F.
15 New section for wildlife.
16 MR. WARRINGTON: Would anyone be interested in
17 a five-minute break for Dr.
Olson to catch his
18 breath?
19 MS. TIPSORD: Yes, that's fine. We'll take
20 five minutes.
21 (Recess from 11:10 a.m. until
22 11:20 a.m.)
23 MS. TIPSORD: We'll go back on the record.
24 DR. OLSON: This is the wildlife. The
L.A. REPORTING (312) 419-9292
44
1 wildlife methodology for the proposed rule follows
2 the general approach of Subpart F but is much more
3 complex. On the other hand, it is also much
4 clearer about what entity is being protected.
5 First, the methodology relies on the more elaborate
6 BAF method discussed above. Secondly, it specifies
7 the quality of the best available data required for
8 both a bird species and a mammal species, which may
9 be from either traditional laboratory species or a
10 wildlife species.
11 This data is then used to calculate a
12 criterion based on five target species: mink,
13 otter, bald eagle, kingfisher, and herring gull.
14 The criterion is based on the -- the criterion
15 based on the different species will be different
16 because of different drinking and feeding rates and
17 levels occupied by prey food in the food web. The
18 lower of the mean of bird species or mammal species
19 is used as the criterion and should protect all
20 wildlife species using food or water from the Lake
21 Michigan Basin.
22 The proposed methodology does not
23 specifically include domestic animals, but since
24 some -- which are mentioned in Subpart F. I don't
L.A. REPORTING (312) 419-9292
45
1 think that's in the written testimony that you
2 have -- but since some of the wildlife species
3 used as target species consume much food from
4 aquatic sources and thereby are considerably more
5 exposed to waterborne risk, domestic animals should
6 also be protected. The methodology does not
7 specifically involve reptiles; however, they should
8 be protected also. Other terrestrial organisms
9 (such as insects or plants) are not included in
10 this methodology.
11 The wildlife method produces a Tier I
12 criterion for
BCCs, which were not identified
13 before,
bioaccumulative chemicals of concern, which
14 is a formal term used in the GLI. For non-
BCCs
15 other target species may be used, if justified.
16 Details of the procedure follow.
17 Minimal data requirements. The BAF used
18 here must be from either a field measured BAF or
19 BSAF since only Tier I criteria are calculated.
20 The study duration will adequately account for
21 chronic toxic effects. Other details for data
22 selection are to be found in the Code of Federal
23 Regulations, incorporated by reference as Exhibits
24 J and K.
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1 In the calculation equation, the test
2 dose is modified by various uncertainty factors to
3 relate the test species to the target species and
4 to adjust to long-term no-effect levels.
5 Inspection of the criterion documents for the four
6 substances for which numerical wildlife criteria
7 have been calculated gives some guidance as to the
8 choice of these values.
9 Uncertainty Factor A relates the test
10 species to the target species and has a value of
11 one to 100. This is based on several long papers
12 cited in the Technical Support Document comparing
13 both acute and chronic data encompassing some
14 hundreds of data sets. A value of 100 encompasses
15 most of the variation in over 80 percent of the
16 cases. For the wildlife criteria calculated so
17 far, and used in the numerical criteria sections,
18 the values used have been one, three, or ten.
19 Uncertainty Factor S corrects for
20 subchronic to chronic exposure and has a value of
21 one or ten. This value is based on studies on over
22 100 substances.
23 UF L, or Uncertainty Factor L, corrects
24 for using a lowest observed adverse effect level --
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1 LOAEL -- instead of a no observed adverse effect
2 level -- NOAEL -- and has a value of ten.
3 The equation for calculation of the
4 target species value -- TSV -- is similar to that
5 also used for human health. It is simply an
6 expression bringing together the toxic dose (in
7 milligrams per individual per day) divided by
8 expressions which are equivalent volume of water.
9 The no-effect dose of the test species is
10 multiplied by weight of the target species and
11 divided by the uncertainty factors discussed
12 above. Target species weights are given in
13 Table D-2 of the GLI (Exhibit C).
14 The factors in the denominator are the
15 water consumption in liters per day of the target
16 species and the food consumption of the target
17 species times the BAF for the relevant
trophic
18 levels used by the target species. The water
19 consumption, food consumption, and
trophic levels
20 used by the target species are found in Table D-2
21 of the GLI (Exhibit C).
22 In the four substances for which wildlife
23 criteria calculations have so far been made, the
24 two mammal values have been fairly close together
L.A. REPORTING (312) 419-9292
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1 as have the three bird values. The mammal value
2 has been lower twice and the bird value twice. In
3 three of four cases the bird and mammal values have
4 been clearly different. So there is a reason for
5 using both mammal and bird data.
6 This is the last section, on human
7 health. The methodology for deriving human health
8 criteria still uses the general approach of
9 Subpart F, although details have been changed,
10 mainly to account for the more elaborate BAF
11 procedure. The proposed rule is formally divided
12 into sections for threshold and
nonthreshold
13 criteria/values derivation, and within these
14 categories there's provision for deriving either a
15 Tier I criterion or Tier II value depending on the
16 quality of data available and either a drinking
17 water or
nondrinking water criterion/value
18 depending on the use for the criterion or value.
19 A criterion or value for both
20 carcinogenic and
noncarcinogenic effects may be
21 calculated for a substance if there is sufficient
22 data. But if the substance is a carcinogen,
23 usually the criterion or value will be lower to
24 account for that effect rather than the
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1 noncarcinogenic effect. This approach is somewhat
2 different from Subpart F where it is implied that
3 there is a clear-cut difference between substances
4 which are "carcinogens" or "
noncarcinogens." There
5 is now more emphasis, then, on effect rather than
6 classification of chemicals.
7 There are procedures for both Tier I
8 criteria and Tier II values. Data handling and
9 calculation methods are the same for both levels,
10 but data requirements -- quality requirements are
11 different in degree. However, because the
12 descriptions of data requirements and data quality
13 assurance for the two levels are very involved,
14 there will have to be reliance on the guidance
15 found in the Code of Federal Regulations,
16 incorporated by reference, since the material is
17 much too involved to be presented in a regulatory
18 form.
19 The methodology provides for calculation
20 of criteria/values for waters where there may be
21 exposure through both drinking water and consuming
22 the fish as well as exposure to miscellaneous
23 contact with water and consuming fish.
24 The calculation procedure is similar to
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1 that for the wildlife criterion. The
2 criterion/value is calculated by means of an
3 equation which simply places the evaluation of the
4 acceptable toxic dose in mass per individual in the
5 numerator and consumption of water and fish in the
6 denominator again. The acceptable toxic dose is
7 arrived at either through the threshold or
8 nonthreshold procedure. The value obtained in mass
9 per kilogram per day is multiplied by 70 kilograms,
10 which is a standard value for adult human and is
11 used in Subpart F. As a result, the numerator will
12 be in the form of milligrams per day per
13 individual.
14 Exposure assumptions. Exposure
15 assumption for either the threshold criterion/value
16 or the
nonthreshold criterion/value are slightly
17 different from those in Subpart F.
18 The water consumption value for drinking
19 water remains three -- two liters per day for
20 casual -- for drinking water and for casual
21 exposure is 1/100th of a liter per day. These
22 values are the same as in Subpart F and have been
23 standard for many years.
24 However, the fish consumption value
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1 suggested by the GLI, and included in the proposal,
2 is 15 grams per day, compared to that of Subpart F
3 where it is 20 grams per day. The GLI value is the
4 mean amount consumed by sport
fisherpersons in the
5 Great Lakes according to a survey done for the
6 Michigan DNR. The consumption of fish from the
7 Great Lakes is 3.6 grams per day from
trophic level
8 3 and 11.4 grams per day from
trophic level 4.
9 These values were obtained from the same survey.
10 BAF values for these
trophic levels are obtained
11 from equations using lipid values obtained by USEPA
12 from several of the Great Lakes states for the
13 GLI.
14 Now, specific section for the threshold
15 criterion or value. This is equivalent to the GLI
16 noncancer criterion/value, but the label is not as
17 specific. A criterion/value for a carcinogen could
18 be derived this way if the mechanism of action is
19 due to a threshold mechanism. The procedure is
20 very similar to that in Subpart F. However, a
21 relative source contribution -- RSC -- has been
22 introduced into the equation. This has the effect
23 of making the criterion or value somewhat lower
24 than if done according to Subpart F, to allow for
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1 exposure from other media (i.e., food, air,
2 et cetera.) In Subpart F there is provision for
3 using the finished drinking water regulatory value,
4 the MCL. This is not used in the proposed
5 regulation because the basic determination of toxic
6 values by USEPA is now readily available through
7 IRIS, which is a computerized data source.
8 Minimum data requirements are outlined in
9 the regulation. As mentioned before, details of
10 data quality are very difficult to propose in clear
11 regulatory language and are left to the Code of
12 Federal Regulations, incorporated by reference, as
13 a guideline. If human data are not available
14 (which is most likely), then data from the most
15 relevant animal or the most sensitive animal
16 experiment is used, preferably from oral exposure,
17 eating exposure.
18 The dosage level from a human study or
19 from an animal study is adjusted by specific
20 uncertainty factors to a value called the
21 acceptable daily exposure -- or ADE -- used in the
22 derivation equation.
23 If the exposure is from a human study,
24 the uncertainty factor is one to ten to account for
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1 average subjects to a sensitive population.
2 If the study is from an animal study of a
3 long duration, the uncertainty factor is one to 100
4 to account for extrapolation from animal to man and
5 averages -- and average to sensitive subjects. In
6 other words, it's the whole uncertainty of
7 cumulative uncertainty to that level.
8 If the study is from an animal -- shorter
9 animal study, the uncertainty factor is one to
10 1,000 to account for less than lifetime exposure as
11 well as the previous uncertainties.
12 If the study is from an animal study
13 which was
subchronic, the uncertainty factor can be
14 from one to 3,000 to account for additional as
15 well -- uncertainty as well as the above
16 uncertainty.
17 If the animal study resulted in an LOAEL
18 but not an NOAEL, the additional uncertainty factor
19 is one to ten, depending on professional judgment.
20 Finally, there is allowance for
21 additional uncertainty if it is on a case-by-case
22 basis.
23 Total uncertainty. The total uncertainty
24 for the worst case from above would be 300,000, but
L.A. REPORTING (312) 419-9292
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1 for a Tier I criterion, it must be less than
2 10,000, and for a Tier II value less than 30,000.
3 Therefore, the magnitude of total uncertainty
4 factor used defines whether a Tier I criterion or
5 Tier II value will be determined for a substance.
6 Guidance for how to determine the value of the
7 uncertainty factor can be found in the criteria
8 documents for the 15 human health Tier I numerical
9 criteria calculated for the GLI (Exhibits H and I).
10 And the last section is for human health
11 nonthreshold criterion or value. This is
12 equivalent to the GLI cancer criterion/value but is
13 not as specific. The human health
nonthreshold
14 criterion is nearly equivalent to the GLI cancer
15 criterion and follows usage in Subpart F. The
16 difference in labeling is used because it is
17 possible that the approach may be necessary for
18 effects other than cancer.
19 Data requirements and quality are not
20 explicitly laid out in this section of the proposal
21 because they are incorporated in the cancer
22 classification of USEPA. In order to derive a
23 Tier I criterion, the substance must be classified
24 as, (A), "definitive human criteria" --
L.A. REPORTING (312) 419-9292
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1 "carcinogen" -- excuse me -- or (B), "probable
2 human carcinogen." For Tier II the substance may
3 be classified as (C), "possible human carcinogen,"
4 on a case-by-case basis, or the "value" could be
5 derived using the threshold procedure described
6 before.
7 One of the important components of the
8 nonthreshold criterion is the risk level chosen.
9 In Subpart F, ten to the minus six was chosen. The
10 GLI suggests ten to the minus fifth. [Because of
11 the rigor of the BAF methodology even using the ten
12 to the minus fifth risk level, a criterion could be
13 lower than that calculated according to Subpart F
14 with a ten to the minus six.]
15 Criteria for all 11 carcinogens were
16 calculated according to the old procedure of
17 Subpart F, and the following values for the
18 criteria were found. And for these criteria that
19 have been calculated so far, making a rough
20 comparison between Subpart F procedures and the GLI
21 procedures, it's not always possible to make a
22 one-to-one comparison. But you'll see that the GLI
23 procedures generally will give a higher criterion
24 value in about half of the instances. So this
L.A. REPORTING (312) 419-9292
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1 table --
2 Could the table be incorporated rather
3 than reading the table --
4 MS. TIPSORD: Yes.
5 DR. OLSON: -- in the record?
6 And that concludes my testimony.
7 MR. WARRINGTON: Thank you, Dr.
Olson.
8 Dr.
Olson and Mr. Mosher made reference
9 in several places in their testimony to exhibits.
10 We'd like to clarify that those are the exhibits A
11 through T that were attached to the original
12 proposal. The Agency would move that they be
13 admitted as exhibits to this proceeding.
14 MS. TIPSORD: By being part of the proposal,
15 they were already part of the proceeding. Would
16 you like to also have them be a part of the hearing
17 record?
18 MR. WARRINGTON: If they're before the Board,
19 we're satisfied.
20 MS. TIPSORD: They're before the Board as a
21 part of the proposal.
22 MR. WARRINGTON: Thank you.
23 We'd also like to clarify a few things.
24 The Agency is preparing an errata sheet that will
L.A. REPORTING (312) 419-9292
57
1 be filed well in advance of your proposed or target
2 first notice date. But one thing that we would
3 like to mention to the -- to the Board and the
4 audience is that in Section 302.512,
5 antidegradation, the Agency specifies that the
6 procedures are to be applied in cases of National
7 Pollutant Discharge Elimination System permits or
8 NPDES permits and in water quality certifications
9 under Section 401 of the Clean Water Act.
10 We have discovered that there's another
11 permit requirement in Section 39(n) of the Illinois
12 Environmental Protection Act which requires a joint
13 permit from the Illinois EPA and the Illinois
14 Department of Transportation for structures or
15 dredge and fill operations in Lake Michigan. And
16 we will be amending the proposed rule text to
17 incorporate that.
18 In addition, in the same section at
19 302.512, subparagraph (b), the language gives a
20 blanket exemption for certain activities that are
21 not going to be covered by the
antidegradation
22 review. We've cross checked the actual language of
23 the Great Lakes Initiative, and that language
24 requires or at least allows a certain case-by-case
L.A. REPORTING (312) 419-9292
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1 determination by the Agency rather than a blanket
2 exclusion from
antidegradation review. We still
3 have to develop some language to clarify that --
4 the criteria of that discretion for a case-by-case
5 determination, but we will be making that
6 amendment, again with an errata sheet.
7 And the last issue is that Dr.
Olson did
8 mention the new concept of a
bioaccumulative
9 chemical of concern. There's a definition and a
10 list of
bioaccumulative chemicals of concern or
11 BCCs, and we've recently in the last week started a
12 dialogue with certain members of the regulated
13 community to clarify the procedures that the Agency
14 would use to designate additional
BCCs and apply
15 them to either NPDES permits, 401 certifications,
16 or permits under 39(n) of the Environmental
17 Protection Act.
18 All these changes will be made in advance
19 of the target date for your first notice of the
20 Board. With that, I think we can turn it over to
21 Mr. Frevert.
22 MR. FREVERT: I hate to let the whole morning
23 go without saying something.
24 MS. TIPSORD: Before we do that though, let's
L.A. REPORTING (312) 419-9292
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1 go ahead and admit the table which is on page 12 of
2 the prefiled testimony as Exhibit Number 1 in this
3 proceeding.
4 MR. WARRINGTON: Okay.
5 MS. TIPSORD: That is it was on page 12 of
6 Dr. Olson's prefiled testimony, and that is marked
7 as Exhibit 1.
8 (Hearing Exhibit No. 1 admitted in
9 evidence.)
10 MS. TIPSORD: Dr. Flemal has a quick
11 question.
12 DR. FLEMAL: Just to keep this place in the
13 record, Mr.
Olson, could you explain the three
14 columns in that table, "GLI," what basis that
15 calculation is, the "IL," and so on?
16 DR. OLSON: Well, first of all, this was all
17 based on
nondrinking water usage, that is this 10
18 milliliters per day or 100th milliliter per day of
19 drinking water, and the rest was
bioaccumulation of
20 fish consumption, which for Illinois was 20
21 milligrams -- 20 grams per day, GLI 15 grams per
22 day. And so -- and the Illinois was 10 to the
23 minus six risk level, which, of course, is a big
24 difference. In other words, the GLI was 10.
L.A. REPORTING (312) 419-9292
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1 The GLI also incorporates two different
2 trophic levels for the fish consumption and we used
3 this food chain multiplier -- tables of a GLI. So
4 there's quite a few small differences in the way
5 they're calculated. The units there are given --
6 most of them are in micrograms per liter, but some
7 of them are much smaller.
Nanograms per liter.
8 Picograms per liter. So for benzene, for instance,
9 the value would be 310 micrograms per liter for
10 that usage. Illinois is only 26. And, therefore,
11 the GLI was a factor of 10 -- 12 times that.
12 DR. FLEMAL: I guess I didn't state my point.
13 The column you've got listed as the "IL," is that
14 in our current Subpart F or is that in the
15 proposal?
16 DR. OLSON: Those would be what would be
17 the -- Let's see, a quick check to see whether I
18 actually used the same --
19 Well, somehow or other it came out a
20 little bit different from the one that was
21 published in the Illinois Record. For that it was
22 21. I'm not quite sure why there's a slight
23 discrepancy there. We have actually used the
24 benzene criterion once or twice in a permit. So
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1 the value used was 21. I'm not sure what happened
2 when I did this recalculation for this table.
3 DR. FLEMAL: I'm not so concerned about the
4 magnitude of the numbers as understanding what the
5 columns are. The column you have listed "GLI" is
6 the Great Lakes Initiative values as you're
7 proposing here so they're equivalent to Subpart E?
8 DR. OLSON: Those are the actual proposed
9 values that would be in the tables in the proposal.
10 DR. FLEMAL: And the "IL" column is what would
11 happen if you used the Subpart F procedures in the
12 alternative?
13 DR. OLSON: Yes. Now, the toxicity value in
14 IRIS may have changed. I want to make it clear
15 that we have never actually gone to the original
16 literature to calculate a value for human health.
17 The provisions in the proposal allow you to do
18 this, but chances are you would go to IRIS, which
19 is an EPA database upon which numerous scientists
20 have gotten together over the course of years
21 before the numbers actually appear in IRIS. And
22 that's probably the number that we would use for
23 the toxicity value.
24 So that I'm not absolutely sure that the
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1 toxicity value for the numerator corresponds. I'm
2 not sure I double-checked that. This was just a
3 rough idea to give you an idea of what the value
4 for those substances would be as done by the GLI or
5 as done by Subpart F.
6 DR. FLEMAL: That was my understanding. I
7 just wanted to make sure that it was, in fact, a
8 correct understanding.
9 MR. FREVERT: Thank you.
10 In addition to the water quality
11 standards that we are proposing today, the Great
12 Lakes Guidance as issued March 23 of 1995 has
13 additional qualities upon the eight Great Lakes
14 states. Predominantly those requirements deal with
15 the procedures that the administrative agency would
16 use in carrying out its permit issuing activities,
17 things of that nature. And specifically there are
18 two appendices: Appendix E which deals with
19 antidegradation and Appendix F which deals with the
20 number of permitting issues.
21 We have developed Agency operating rules
22 to govern our NPDES permit, and in the case of 401,
23 water quality certifications, that as well will be
24 in hopefully a final draft form that I believe will
L.A. REPORTING (312) 419-9292
63
1 be available as an exhibit to show you that is
2 progressing. That needs to be submitted for
3 federal USEPA approval along with the water quality
4 standards additions.
5 Now, when you go through those
6 procedures, you'll recognize the predominant aspect
7 of those requirements fall under the permitting
8 authority, but there are some specific entities
9 that go beyond our authority and actually are
10 hazardable in our State. And I just want to get on
11 the record the fact that those additional
12 requirements, in addition to the water quality
13 standards in the narrative derivation procedures,
14 are contained in this proceeding.
15 Specifically there are requirements for
16 mixing zone requirements for
bioaccumulative
17 chemicals of concern that go over and above the
18 existing mixing zone requirements in the existing
19 Subtitle C. The way we've addressed that, as you
20 notice, we tried to structure this proposal so that
21 everything applying to the Lake Michigan Basin was
22 housed in one subpart. We got away from this
23 add-on where currently Lake Michigan standards
24 incorporate everything specifically for Lake
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1 Michigan. They refer back to general use and they
2 also refer back to drinking water supply. We've
3 structured this proposal to get away from that.
4 The one exception is if you look at
5 Subpart C, Section 302, there is a Subpart --
6 excuse me -- Subtitle C. There is a Subpart A,
7 "General Water Quality Provisions." And they deal
8 with things like mixing zones and
nondegradation.
9 We've retained that. We have retained nothing else
10 in this proposal for Lake Michigan. We've brought
11 everything from the other subparts into this
12 proposal. When you look at mixing zones, there are
13 specific requirements for
BCCs.
14 We've added a Section 302.515 for
15 supplemental mixing provisions for
BCCs. This is
16 to make it directly compatible with the Great Lakes
17 Initiative requirements. We've also added 302.512
18 that Rich talked about earlier for
antidegradation
19 provisions. We believe those are the fundamental
20 regulatory requirements that the Board needs to
21 adopt to comply with the Great Lakes Initiative.
22 The supplemental implementation material necessary
23 for us to execute those in a fashion required under
24 the Great Lakes Initiative is contained in our
L.A. REPORTING (312) 419-9292
65
1 administrative rules that we're finalizing and will
2 have available shortly.
3 Two specific procedures required by the
4 Great Lakes Guidance deal with adjusted standards
5 and variances. And we worked with USEPA to get
6 across the notion that we intend to rely on the
7 Board's existing procedural rules dealing with
8 adjusted standards and variances so those
9 procedures should take effect as is. We've had no
10 indication from EPA that there's any change
11 necessary. The existing procedural rules will do.
12 There are some requirements regarding
13 additivity of multiple toxic substances. We're
14 going to rely on that based upon the ten to the
15 minus fifth risk level. I believe there's an
16 additive provision in those levels, same as there
17 was in Subtitle F, to deal with that. And there's
18 also an implementation procedure dealing with
19 compliance schedules, and we've got some procedures
20 specifying how we will use compliance schedules
21 based on authority that's currently existing in
22 Part 9, the permit section of Subtitle C.
23 So with that, we believe we have a
24 comprehensive proposal that does address all the
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66
1 requirements of the Great Lakes Initiative. And
2 hopefully somewhere before the day is over a
3 representative of the USEPA can be here to, I
4 suppose, if nothing else, convey their urgency in
5 us getting through this process and get a quick
6 adoption, perhaps field some questions if you might
7 have any on progress of the other states.
8 We have about wrapped up our procedures
9 implementation package with the exception of how
10 we're going to handle all effluent toxicity.
11 That's currently on hold pending some resolution of
12 some issues with the USEPA in the states of
13 Wisconsin, Indiana and Ohio over what procedure
14 would be acceptable and intend to provide a
15 permitting procedure for whole effluent toxicity
16 for whatever would emerge from that discussion.
17 And that's all I have to say.
18 MR. WARRINGTON: As Mr.
Frevert indicated, we
19 have drafted some proposed Agency rules to
20 implement the Great Lakes requirements. And we
21 would like to give the Board a copy and admit it as
22 an exhibit to this proceeding. It's entitled the
23 May 16th, 1997 draft. What we hope to do this week
24 is to mail it to the notice and service list and
L.A. REPORTING (312) 419-9292
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1 solicit their comments by June 6th, 1997. We'll
2 take those comments, incorporate any changes that
3 we're able to ascertain concerning whole effluent
4 toxicity, generally check the formatting and the
5 language of the proposal so that it will be
6 acceptable to the Secretary of State for filing,
7 and then file it shortly afterwards.
8 We, of course, you know, are in a
9 position to still make amendments to this based on
10 public comment. We'd be particularly interested in
11 any comments the Board, of course, has coordinating
12 these procedures with the Board's permitting
13 procedures. But we'd so move that the May 16th
14 draft be admitted as an exhibit.
15 MS. TIPSORD: Is there any objection?
16 Seeing none, we'll admit that as Exhibit
17 Number 2.
18 (Hearing Exhibit No. 2 admitted in
19 evidence.)
20 MR. FREVERT: Rich, if I could, I'd just like
21 to reiterate one area that we are struggling with,
22 and that's the blanket exceptions from
23 antidegradation review for specific provisions.
24 Clearly
USEPA's guidance says that should be
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1 applied on a case-by-case basis, on a wholesale
2 basis.
3 Some feedback we've received from the
4 National Wildlife Federation called that to our
5 attention. They want some provisions for that.
6 Our concern is trying to honor that intent without
7 language that would appear to create an illegal
8 delegation of authority from the Board to the
9 Agency on when to invoke that and when not to. So
10 any testimony from the audience or input from
11 anyone in how we accomplish that would be greatly
12 appreciated.
13 MR. WARRINGTON: I think we can entertain
14 questions unless you'd like to entertain lunch.
15 MS. TIPSORD: Let's go off the record for just
16 a minute.
17 (Discussion off the record.)
18 MS. TIPSORD: We'll take a lunch break. Let's
19 reconvene at 1:00 o'clock.
20 (Whereupon, at 11:55 a.m., the
21 hearing was recessed, to reconvene
22 at 1:00 p.m. this same date.)
23
24
L.A. REPORTING (312) 419-9292
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1 AFTERNOON SESSION
2 (1:00 p.m.)
3 MS. TIPSORD: At this time before we proceed
4 to questions of the Agency, I'd like to know if
5 anyone else would like to make a statement at this
6 time?
7 MS. ROSEN: Thank you. Good afternoon.
8 My name is Whitney
Rosen. I'm legal counsel for
9 Illinois Environmental Regulatory Group. We have
10 worked with the Agency on behalf of our members
11 that may be impacted by this proposal and have had
12 numerous discussions.
13 Today with me is Mr. Robert
Cohen and
14 Mr. Jeff Smith from Commonwealth
Edison. They are
15 representing Commonwealth
Edison as members that
16 are impacted by this proposal. And we have also --
17 with us earlier was
Melita Leffel, who will be
18 joining us shortly, who is a representative from
19 Abbott Laboratories.
20 As I said, we have been working with the
21 Agency on this proposal because it does impact a
22 number of our members. We would like to note that
23 IERG is very interested in getting this
rulemaking
24 completed as soon as possible to avoid federal
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1 imposition of the GLI. And we thank you for your
2 efforts to expedite the process.
3 MS. TIPSORD: Thank you, Ms.
Rosen.
4 Is there anyone else who would like to
5 make an opening statement?
6 Then let's proceed with questions.
7 I think we'll do this -- the best way to do it is
8 section by section. And so we'll start with
9 Section 302.101, and I'll refer to page numbers
10 as they appear in the Agency's original proposal.
11 So Section 302.101 is found at page 8 of the first
12 notice proposal submitted by the Agency.
13 Are there any questions on Section 302.101?
14 Okay. I have a couple. These are
15 minor -- and these fall probably in the category of
16 inconsequential types of -- but I know Jay
Carr
17 might ask us about them. In 302.101(e), there's a
18 citation to "Ill. Adm. Code 303" and then in
parens
19 it's "35 Ill. Adm. Code 303.443."
20 Could the Agency indicate to me if
21 303.443 is the specific citation? And if it is,
22 why don't we use that instead of just referring to
23 general 303, both in 302.101(e), and it also
24 appears in 302.501 in the same way. You give a
L.A. REPORTING (312) 419-9292
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1 general cite and then more specific cite.
2 MR. WARRINGTON: The reason that we first used
3 the citations, the whole part 303, was that is the
4 way it existed in the existing Agency rules -- or
5 sorry -- the existing Board rules. Likewise,
6 35 Ill. Adm. Code 303.443 is the specific section
7 citation to the waters that will be affected.
8 That is in the Agency proposal at page 55.
9 MS. TIPSORD: Then you would have no objection
10 to changing that?
11 MR. WARRINGTON: We have no objection to
12 changing that, cleaning that up. One thing that we
13 consciously avoided in drafting this proposal was
14 trying to clean up anything. We tried to limit
15 this proposal to solely those things that would be
16 necessary to achieve federal approval of a
17 proposal.
18 MS. TIPSORD: Then moving on to Section
19 302.105, are there any questions?
20 302.501?
21 502?
22 503?
23 504?
24 We'll go with you first.
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1 MR. SMITH: I have a question on 302.504,
2 Table C. And I guess what I'd like is maybe an
3 explanation of the origin of the parameters and the
4 standards that are in that table.
5 MR. MOSHER: We could go down the list --
6 Well, let's do it this way. The first four things
7 listed -- phosphorus, chloride, sulfate, total
8 dissolved solids -- are the existing Lake Michigan
9 standards that always were in Subpart E. The
10 next -- let's see -- arsenic, selenium, barium,
11 iron, lead, manganese, nitrate-nitrogen, oil, and
12 phenols came from the Public Water Supply and Food
13 Processing Water Supply standards at 302.304.
14 Subpart C. Then starting with benzene and going
15 through the end of that subsection, those are GLI
16 proposed criteria that we propose to adopt as
17 standards.
18 MR. SMITH: The GLI standards that begin from
19 benzene and go down to
trichloroethylene, are those
20 for protection of human health as drinking water
21 standards?
22 MR. MOSHER: My understanding is that they're
23 for protection of drinking water and ultimately for
24 human health.
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1 MR. SMITH: Now, these would be applied on an
2 instantaneous basis or as an acute standard?
3 MR. MOSHER: As I explained in my testimony,
4 given that these are applicable out in the open
5 waters of the Lake, even though the GLI proposed
6 them as standards that would be an average of
7 samples and you would assess compliance based on an
8 average, we felt that that was not entirely proper
9 or entirely fair to do it that way in the open
10 waters of Lake Michigan.
11 Therefore, we have proposed them as a
12 not-to-be-exceeded value, given the qualities of
13 the Lake where you're dealing with a vast expanse
14 of water and, for one thing, it would be very
15 difficult to get out there and take multiple
16 samples, but also when you do have a violation out
17 there in Lake Michigan, that is a cause for
18 concern, even if it is a violation of just one
19 sample, because of the magnitude of it.
20 So I think again I'd refer to my
21 testimony for our reasoning behind proposing these
22 as not-to-be-exceeded values.
23 MR. SMITH: I guess the question I'm trying to
24 get to is if these numbers are to protect human
L.A. REPORTING (312) 419-9292
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1 health, human health criteria is based on exposure
2 for several years and why wouldn't it be
3 appropriate to check over a several-day period as
4 opposed to instantaneous? Is it more a convenience
5 thing that the Agency is proposing to have these
6 applicable with any one sample? Is that the real
7 reason for doing it this way?
8 MR. MOSHER: Convenience is a factor.
9 I think, to sum it up, we've got a huge lake out
10 there; and whenever you would exceed all -- All
11 these are man-made substances. Whenever you would
12 exceed these values, that's cause for concern. I
13 wouldn't want to put a burden on someone to have to
14 go out four times, probably in a chartered boat, to
15 try to find the same location they were at the
16 first time out there in the middle of the Lake and
17 to take at least four samples. So to answer your
18 question, it's part -- it is partly due to
19 convenience.
20 MR. SMITH: But in terms of what the GLI is
21 trying to accomplish by having the four, a standard
22 is based on an averaging period, that that is no
23 less protective than what you're proposing here in
24 this
Subtable C?
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1 MR. MOSHER: I guess I don't understand what
2 you mean by "no less protected."
3 MR. SMITH: I guess -- it seems like we're
4 trying to mix apples and oranges because what GLI
5 is trying to do is have their average of a series
6 of samples over a period of days to provide some
7 protection for human health or drinking water. And
8 what we're doing here is we're having basically the
9 standard applied as an instantaneous -- any single
10 sample would need to comply with these numbers, and
11 yet the numbers are the same numbers that the GLI
12 has based on an average exposure.
13 And it seems to me that if the GLI felt
14 that that was protective, then what we're doing
15 here is we're going beyond what the GLI requires.
16 And that's what I'm a little confused about.
17 MR. MOSHER: You're correct. The GLI proposed
18 them that way. But again, I look at the vastness
19 of Lake Michigan. If we were today to charter a
20 boat and go 10 miles out and dip up a sample, and
21 if it violated -- that single sample violated any
22 of these standards, I would have great cause for
23 concern. And to require our Agency, or anyone who
24 wishes to go out and take samples, to go back to
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1 that spot three more times to have a confirmation
2 that something is wrong, I think, is asking a
3 little too much.
4 MR. SMITH: And the reason why Table D, the
5 human health standards are allowed to be averaged
6 over a four-day period, four-consecutive-day period
7 for the human health standard, is that because, in
8 essence, it's more convenient to get the samples
9 over a four-day period and average them?
10 MR. MOSHER: The substances in Table D apply
11 everywhere --
12 MR. SMITH: Right.
13 MR. MOSHER: -- and a lot -- anywhere else in
14 the Lake or its watershed is going to be a lot
15 easier to come up with a sample. Also those aren't
16 necessarily water supplies so my other reason for
17 using a single sample isn't necessarily present for
18 Table D.
19 MR. SMITH: Well, Table D deals with PCBs.
20 So in a sense, we're allowing an averaging for the
21 BCCs to be human health whereas the non-
BCCs in
22 Table C we're applying on an acute basis so, in
23 essence, it seems like we're being more protected
24 with non-
BCCs than BCCs in Table D.
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1 MR. MOSHER: Of course, Table D has four
2 different categories of standards instead of just
3 one. So there is -- there is some provision in
4 Table D for looking at just one sample if it were
5 an acute standard. But you're quite correct.
6 Again, I'll have to fall back on my
7 reasoning in the testimony.
8 MR. COHEN: Mr.
Mosher, I had one quick
9 follow-up question to your testimony. What is it
10 about Lake Michigan and the Agency's view that
11 makes it different from the other four Great Lakes
12 in the context of our current discussion?
13 MR. MOSHER: Lake Michigan, of course, is
14 unique for Illinois. It isn't any different from
15 the other Great Lakes. My personal opinion and the
16 way this petition came out was that if you're
17 protecting a public water supply and we are in Lake
18 Michigan, the open waters, we shouldn't have --
19 have to average samples to detect a violation.
20 MS. TIPSORD: Before we -- Mr.
Warrington,
21 when you refer to Table D and Table C -- there was
22 some conversation -- you're actually referring to
23 the tables that appear in Subsection (d), not a
24 separate Table D, correct?
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1 MR. SMITH: That's correct.
2 MR. WARRINGTON: That's right.
3 MS. TIPSORD: Mr.
Warrington?
4 MR. WARRINGTON: Perhaps I could try to
5 clarify it.
6 Bob, I believe you testified about the
7 compounds benzene,
chlorobenzene and so on in the
8 table in Subsection (c). Would you expect much
9 variation in the sample results from four different
10 samples, assuming that they managed to find the
11 same location in the Lake?
12 MR. MOSHER: No, you wouldn't. Given the
13 volume of water out there, you wouldn't expect the
14 kind of variability we might see in a river, for
15 instance. That's why I say when you get one sample
16 that surpasses these limits, some degree of concern
17 arises immediately. And averaging that sample with
18 three others, I think, is just kind of a waste
19 of -- a waste of effort.
20 MR. WARRINGTON: And another question is in
21 distinguishing Lake Michigan from the other Great
22 Lakes, isn't it true that Lake Michigan doesn't
23 really have any flow through the Lake as opposed to
24 the other Great Lakes?
L.A. REPORTING (312) 419-9292
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1 MR. MOSHER: Correct. We're on a portion of
2 the Lake that isn't a constricted -- a constricted
3 area where there is -- there is flow in the lakes,
4 but in our portion of the Lake, it's very diffused
5 and it's not constricted in one spot like some of
6 the other places.
7 MR. WARRINGTON: Thank you.
8 MS. TIPSORD: Dr. Flemal?
9 DR. FLEMAL: I was going to explore that same
10 question, Dick. What data do we have that would
11 enlighten us on the spatial or temporal variability
12 of any of these parameters in Lake Michigan?
13 MR. MOSHER: Well, we've got a sample program
14 in Lake Michigan that goes way, way back and if you
15 look at parameters like phosphorus and ammonia that
16 have been sampled for years and years, there is
17 very little variability out in the open waters.
18 DR. FLEMAL: Would you believe that for the
19 organic parameters you've got listed here, that
20 same conclusion could be reached?
21 MR. MOSHER: Yes, I would, especially given
22 the fact that there are no mixing zones out there,
23 that I know of at least, that would cause a
24 concentration grading of any kind.
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1 DR. FLEMAL: Are the waters in Lake Michigan
2 today anywhere near the concentrations of the
3 various organic parameters?
4 MR. MOSHER: I would have to say no.
5 I haven't examined lots of data for all of those
6 things, but I would certainly think that we'd be
7 much lower than those out in the open Lake.
8 DR. FLEMAL: Benzene, for example, if I were
9 to go out in the Lake, I would likely expect a
10 concentration well below the 12 micrograms per
11 liter that you're proposing as a standard?
12 MR. MOSHER: I think you'd probably not be
13 able to detect benzene.
14 DR. FLEMAL: If I did detect something over
15 12, what conclusion would one reach from the
16 occurrence of that one sample?
17 MR. MOSHER: I would conclude that we either
18 had some kind of a laboratory error, some kind of a
19 sampling error, or we have just detected some kind
20 of a spill because there's no known source.
21 DR. FLEMAL: In terms of our need to react, it
22 would certainly have to be a spill if you found any
23 of these parameters being exceeded in the Lake?
24 MR. MOSHER: That would be my conclusion,
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1 yes.
2 DR. FLEMAL: Would it help to go out and
3 sample on four consecutive days if one were, in
4 fact, attempting to document the existence of a
5 spill?
6 MR. MOSHER: Well, the only thing that would
7 do is track the dispersal of the spill. But in my
8 mind, once we have that one sample, we have all the
9 proof we need.
10 DR. FLEMAL: Going back to the same place to
11 document the spill might, in fact, cause you to
12 miss it if it had moved?
13 MR. MOSHER: Right. Given the vast expanse
14 out there, that's correct.
15 DR. FLEMAL: That's all.
16 MR. RAO: I have a few questions on Section 504.
17 You describe the standards under Subsection (c)
18 came from GLI and which came from Subpart F. Could
19 you please for the record just go through
20 Subsections (a), (b), and (d) also and tell us
21 which standards are coming from GLI and which are
22 being carried over from Subpart F?
23 MR. MOSHER: It might take us a little while
24 to think about it. But we can do that.
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1 MR. RAO: If you want to, you can also respond
2 to this in writing if you think it will take a lot
3 of time. It was just that we didn't see much of it
4 in the testimony. You know, so we get something on
5 record.
6 MR. MOSHER: We have notes. We can do it
7 orally if you'd rather --
8 MR. RAO: Okay.
9 MR. MOSHER: Subpart A on page 10 of the
10 original petition, we have a lead standard
11 proposed, both acute and chronic, and that is
12 related to GLI, but it is not a part of the GLI
13 notice in the Federal Register. The states that
14 had been working on GLI continued to collect lead
15 toxicity data, and very recently enough was
16 obtained to calculate a Tier I acute and chronic
17 standard. So that's where our -- our lead proposed
18 standards come from. They are not a part of GLI
19 officially, but in the process of GLI, everybody
20 realized a lead standard was needed and data was
21 collected and the calculations were made, and we
22 obtained these from USEPA about a month ago.
23 The other part of A that is not from GLI
24 is the TRC standard on page 11. That is the
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1 General Use standard moved over to cover Lake
2 Michigan.
3 MR. RAO: What does "TRC" stand for?
4 MR. MOSHER: Total residual chlorine, and
5 that's defined elsewhere in the Board's
regs. So
6 out of Subpart A, everything else that I didn't
7 specifically mention is from GLI.
8 MR. RAO: Regarding the standard for lead,
9 would it be possible for you to provide the Board
10 with any other technical support material that you
11 used?
12 MR. MOSHER: Yes, we can do that. We can come
13 up with a list of species that had toxicity data
14 contribute to the calculation, and that ought to --
15 That's traditionally how we describe that. We can
16 provide that.
17 MR. RAO: Okay.
18 MR. MOSHER: Subsection (b), I believe, are
19 all from the General Use standards that have been
20 moved over and now are duplicated in the Lake
21 Michigan Basin standards.
22 Subpart C, I think we already have been
23 through that. Subpart D -- I'm sorry -- Subsection
24 (d) --
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1 MR. RAO: Subsection.
2 MR. MOSHER: -- those are all GLI criteria
3 that we are proposing as standards. I did note in
4 my testimony that mercury and PCBs are currently in
5 a state of flux, and we had promised to report back
6 when the GLI has decided on what those standards
7 should be, whether that will be within this
8 proceeding or we will have to start a new
9 proceeding, if it takes too long for them to do
10 that.
11 MR. RAO: As proposed under Subsection (b),
12 the standard for PCBs, could you tell us, you know,
13 whether GLI final document is the source of these
14 standards?
15 MR. MOSHER: Yes, the Federal Register notice
16 is the source. And our numbers should be identical
17 to what was published in the Federal Register.
18 It's just that there was a --
19 MR. RAO: Actually we took a look at the
20 numbers in the Federal Register and they were not
21 the same for PCBs.
22 MR. WARRINGTON: I think we were referring
23 to --
24 MR. RAO: We were referring to page number
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1 15392 in Federal Register notice, Volume 16,
2 Number 56, March 23rd, 1995, Table --
3 MR. WARRINGTON: I believe that we based it on
4 final revisions for -- final revisions to the
5 polychlorinated biphenyl criteria for human health
6 and wildlife for the Water Quality Guidance for the
7 Great Lakes systems, 62 Federal Register 11724,
8 March 12, 1997. And those were included as Exhibit P
9 to the original proposal.
10 MS. TIPSORD: Before you move on, I have a
11 general question about all of the tables in this
12 subsection. The -- how -- the organization of them
13 is not alphabetical. We have a mixture of
14 milligrams per liter and micrograms per liter and
15 nanograms per liters.
16 MR. WARRINGTON: And I think there's a
17 picogram in there too.
18 MS. TIPSORD: Yes, so my question is, is there
19 a reason for the organization? Are they of more
20 concern?
21 MR. MOSHER: Well, Subsection (d), for
22 example, lists the single metal that is involved
23 first, which is mercury. And then I believe it's
24 alphabetical for the organic substances. And
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1 that's -- there's nothing sacred about how we did
2 that. We can -- we can strictly alphabetize the
3 whole thing, if that's what you'd like to see.
4 MS. TIPSORD: It just seemed odd to me that we
5 had the mixture of the milligrams,
nanograms, and
6 all of that. And that makes the numbers look
7 strange at times. Sometimes they jump out at you.
8 I guess I'd just ask you to take a look
9 at that and see if we can't --
10 MR. FREVERT: Are you asking for a way that by
11 just looking at this table you can visually
12 describe the relative toxicity of one substance
13 versus another?
14 MS. TIPSORD: Yes, I guess.
15 MR. POLLS: I think she's confused because
16 they're all different units, but you can convert
17 them to whatever unit you want. Would it help if
18 all of them were in the same --
19 MS. TIPSORD: Could you identify yourself?
20 MR. POLLS: Irwin Polls from Metropolitan
21 Water Reclamation District of Greater Chicago.
22 MS. TIPSORD: Let me just say my concern is,
23 having recently dealt with the Drug Committee on
24 Administrative Unit on Underground Storage Tanks,
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1 especially since they're not alphabetized, this is
2 the kind of question they will ask me. Whether
3 they asking me to do anything different, I'm not
4 sure.
5 But I need to have something on the
6 record, if they ask me the question, I can give
7 them an explanation for why it was done this way
8 and that there's a scientific or logical reason.
9 If it is, it's because we tossed them in the hat
10 and that's the way they came up, I think my
11 question then is, is there a logical or a
12 scientific order that we can put them in?
13 MR. MOSHER: Yes, that's the -- the answer to
14 that is really diverse. C, for example, we had
15 standards that came from three different sources so
16 we kept the sources segregated. And maybe once
17 we're beyond this stage of understanding those
18 sources, we can go and just simply alphabetize
19 them.
20 DR. FLEMAL: I think historically what we've
21 done is we've attempted in our tables to have the
22 inorganic constituents first in a separate
23 alphabetized list and then followed with the
24 organic. And I think we have that in every case
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1 except Table C or Subsection (c). And maybe just
2 alphabetizing that first part would bring us back
3 to the convention of the sequence.
4 DR. OLSON: Excuse me. In 302.304, the Public
5 Water standards, the Board already has the listing
6 that's done that way with
inorganics first and then
7 organics segregated.
8 DR. FLEMAL: Maybe if we aligned the decimal
9 places and the concentrations, that would help a
10 little bit.
11 MR. FREVERT: I just comment. We certainly
12 would like to work with you and do it any way you
13 want it, you know. Any recommendations you have to
14 make this more user friendly to the lay public or
15 even the professional people working with it, we'll
16 take any suggestions you have. We did this in what
17 we thought was a rational, convenient way, but
18 we're not weighted to that at all.
19 DR. OLSON: I just want to point out that
20 there are vast orders of magnitude. We're talking
21 about what it's -- it's like ten orders of
22 magnitude. It's an awful lot of zeros.
23 MR. WARRINGTON: What he means is if we
24 reduced it to a common unit of measurements, there
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1 are going to be lots of zeros that people will have
2 to count to compare them.
3 MS. TIPSORD: And I don't think that's as
4 necessary -- because you have done a very good job
5 that this is milligrams, this is
picograms. Like I
6 say, it just seemed a little confusing to me, as a
7 completely lay person.
8 DR. FLEMAL: Have we ever attempted to set a
9 standard of
femtograms on this?
10 DR. OLSON: No.
11 DR. FLEMAL: I assume we can do the
femtograms
12 of dioxin?
13 DR. OLSON: I don't know what dioxin --
14 MR. FREVERT: There is a procedure to
15 specifically deal with substances that are believed
16 to be toxic or at unsafe levels below detection
17 limits. So we indeed anticipate that we could
18 encounter a substance where there's a standard set
19 below our ability to detect and measure. Don't
20 assume everything in here or everything that will
21 come out of this can be measured with today's
22 technology.
23 MR. RAO: Mr.
Mosher, in your testimony at
24 page 4 you explained how standards proposed under
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1 Section 302.504.A must be met outside the zone of
2 initial dilution and chronic standards would be met
3 outside the mixing zone established. I didn't see
4 those requirements in the proposed rules. Can you
5 explain how the rules work?
6 MR. MOSHER: Well, I thought they were in the
7 rule.
8 MR. FREVERT: Aren't they in the existing
9 mixing rule, 302.102?
10 MR. RAO: Well, it doesn't get into where an
11 acute standard applies and where a chronic standard
12 applies. I think that requirement is under 302.208
13 so maybe a cite for 302.208 might --
14 MR. FREVERT: We'd be happy to look into
15 that. That's a good point if we've overlooked
16 that. We are attempting to preserve the same
17 concept, same place. If we need to adjust the
18 wording to accomplish that, we'd be happy to.
19 MR. RAO: And I have one last question on
20 302.504. Under Subsection (a), the last sentence
21 you say, "The samples used to demonstrate
22 compliance with the CS or HHS must be collected in
23 a manner which assures an average representative of
24 the sampling period."
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1 Could you explain what you mean by
2 "average representative of the sampling period"?
3 MR. MOSHER: Well, the chronic standards and
4 human health standards are to be assessed based on
5 at least four samples so it is an average that
6 we're comparing to the standard. We want to
7 collect those four or more samples in a manner
8 that's fair and logical.
9 In other words, we want to -- if we're
10 going to have a four-day period and collect four
11 samples, we should have one sample a day for four
12 days and not three samples within an hour's period
13 of time and then one -- the fourth sample four days
14 later. That's what we mean by "representative."
15 We want a fair collection period with the samples
16 spaced out more or less evenly over that collection
17 period.
18 MR. RAO: Are there any specific sampling
19 protocols published by ASTM or internationally
20 recognized that say how we do this?
21 MR. MOSHER: Not that I know. This concept is
22 based on what we -- the Board adopted back in
23 1990. It's -- that language is taken directly out
24 of 302.208 as how we are to assess chronic versus
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1 acute standards.
2 MR. RAO: Thanks.
3 MS. TIPSORD: By way of typos also --
4 MR. RAO: Oh, just one.
5 MS. TIPSORD: Okay. For the errata sheet, you
6 used periods and colons -- under subsections you
7 have periods, like at the end of Subsection (a) and
8 (b), and then semicolon -- or colon after
9 Subsection (c). Check into it and let me know
10 which one you prefer.
11 MR. WARRINGTON: Okay.
12 MR. RAO: And there's one more which may be a
13 typographical oversight. Under 302.504(a) for
14 standard for cadmium, acute standard, you have
15 expression with two constants, A and B, and the
16 value of B is given as 1.128. And we were looking
17 at the Federal Register dated March 23rd, 1995, and
18 the value of Constant B in the Federal Register is
19 .128.
20 So could you please take a look at that
21 and tell us which is the correct value to the
22 constant?
23 MR. MOSHER: Okay. We'll do that.
24 MR. RAO: Thank you.
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1 DR. FLEMAL: Throughout this section -- and I
2 believe in several other sections as well -- you
3 use the term "open waters of Lake Michigan" and
4 capitalize the "open" and the "waters." Is there
5 any reason for making that capital?
6 MR. MOSHER: Well, we added some language to
7 Section 303, didn't we?
8 MR. WARRINGTON: That's right.
9 MR. MOSHER: Is that toward the end or --
10 MR. WARRINGTON: Page 55.
11 MR. MOSHER: Yes, on page 55 of the petition
12 is where we're proposing change to the text of
13 303.443 which used to define what Lake Michigan
14 waters were and now defines what Lake Michigan
15 Basin waters are. And we distinguished between
16 open waters, the harbors, and tributaries and
17 waters within breakwaters. So we capitalized the
18 "open waters" there, and I don't know if we have a
19 good reason for that or not.
20 DR. FLEMAL: I think this is to indicate that
21 this is a special term of art that is elsewhere
22 somewhere defined. Is that the purpose of the
23 capitalization?
24 Let me ask the question another way.
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1 We're attempting to define "open waters over Lake
2 Michigan" for the first time back here in part 303;
3 is that correct?
4 MR. MOSHER: Yes.
5 DR. FLEMAL: Would it be useful and more user
6 friendly if we designed "open waters" in Part 302
7 itself so that a person looking for water quality
8 standards for Lake Michigan in Part 302 would be
9 able to determine what are open waters as opposed
10 to the waters more generally which they supply?
11 MR. FREVERT: My understanding is that
12 deviates from the existing structures where all
13 open waters are designated in Part 302. That's why
14 it's the way it is. We went into that part of the
15 existing rules that delineates and designates --
16 uses designations and what rules apply to them.
17 That's where we chose to house the definition. But
18 Bob is correct. The purpose of this is to
19 specify. When we say "open waters," we mean those
20 waters that fall under 303.443 (a).
21 DR. FLEMAL: Perhaps one of the things that
22 might be done for user friendly purposes is where
23 that phrase "open waters of Lake Michigan" is first
24 encountered in 302, to say "as defined as" or
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1 something --
2 MR. FREVERT: As designated in Section --
3 DR. FLEMAL: Yes. I read through this and I
4 ran across this term and it struck me first that it
5 was capitalized, but I didn't know where it was
6 going to be defined until I completed my entire
7 look at 302.
8 MR. FREVERT: Good suggestion. We'll be happy
9 to do that.
10 MS. TIPSORD: Yes.
11 MR. WARRINGTON: We can add a definition of
12 the "open waters." It's at -- the Federal Register
13 of March 23rd, 1995, which is the final GLI
14 proposal. And it's at page 15389 and "open waters
15 of the Great Lakes," the acronym is all
16 capitalized, but they describe it as "The waters
17 lakeward from a line drawn across the mouth of
18 tributaries to the lakes, including all waters
19 enclosed by constructed breakwaters, but not
20 including the connecting channels. We can add that
21 definition to clarify.
22 MR. RAO: What you just read now is from the
23 federal document? Isn't that the same as --
24 MR. WARRINGTON: The Federal Register of
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1 March 23rd.
2 MR. RAO: It's not the same as you have under
3 303.443 with regards to the waters enclosed within
4 breakwaters. You may want to take a look at that
5 and make it consistent.
6 MR. WARRINGTON: Okay. Noted.
7 MS. TIPSORD: Any further questions on 504?
8 505?
9 MS. ROSEN: Before we proceed, can I just ask
10 a clarification of what just transpired?
11 MS. TIPSORD: Sure.
12 MS. ROSEN: Were you, Rich, agreeing that the
13 Agency wanted to change the definition of "Lake
14 Michigan Basin" as it's outlined in 303.443 to the
15 language that was in the Federal Register notice?
16 MR. WARRINGTON: I believe we are. Now
17 exactly how we got it the other way, I'm not sure.
18 MR. COHEN: If I may, I believe Mr.
Mosher's
19 testimony addressed that issue that the breakwaters
20 were specifically excluded because of the
21 difficulty in achieving certain standards in that
22 area.
23 MR. SMITH: That's correct.
24 MR. COHEN: There are other differences that
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1 are unique to Lake Michigan. If I may suggest,
2 could we not just incorporate a reference to the
3 definition of Section 443 in the definition section
4 of Part 302?
5 MR. RAO: That begs the question of what you
6 have in 443 is GLI. It's something you may want to
7 address.
8 MR. FREVERT: We'd be happy to address that
9 here. I just want to state we're not prepared to
10 change anything substantive in what we proposed.
11 We consciously designed this the way we did for a
12 specific purpose. And we'd be happy to do whatever
13 it takes to clarify our intent, but we're not
14 rethinking our intent here.
15 DR. FLEMAL: And just to make sure we
16 understand that intent, Toby, open waters of the
17 Lake do not include waters within breakwaters as
18 far as this proposal is concerned?
19 MR. FREVERT: That's what we're proposing.
20 DR. FLEMAL: Even though the GLI has it
21 contrary to that?
22 MR. FREVERT: We've been in communication with
23 USEPA, and we've yet to be advised that they have
24 any problem with that so we're standing pat.
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1 MS. TIPSORD: Okay. Let's move on then.
2 505?
3 507?
4 MR. COHEN: A quick question. I think it's
5 for Mr.
Frevert. Could you state what was the
6 Agency's intent in making the single change to
7 Section 507?
8 MR. FREVERT: I believe there -- Oh, yes.
9 That is one of the perhaps two areas where we
10 undertook some cleanup and that that is a
11 requirement that has long since been met and is
12 defunct. We thought there was no need to clutter
13 the Board's regulations with that any longer.
14 MS. TIPSORD: How about 508?
15 MR. COHEN: Mr.
Frevert, I have exactly the
16 same question with respect to 508.
17 MR. FREVERT: Section 508, that primarily
18 refers to some condense or maintenance operations
19 of facilities discharging to Lake Michigan. The
20 toxicity limitations for chemical maintenance
21 approaches refer to outdated technology that's been
22 totally superseded by the new -- the new state of
23 toxicology and water quality derivation. In that
24 regard, we feel there's no need for paragraph (g)
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1 anymore.
2 The other component of that, the first
3 sentence I read as a mandate that condensers be
4 cleaned with a mechanical device. Unfortunately,
5 I have not researched the development of that
6 particular reference. But I believe that's again a
7 20-year-old artifact of the Board's original
8 regulations. Our concern today is not to tell
9 people how they do their cleaning or whatever, but
10 to make sure the result is that we meet these
11 protective numbers for any toxic substances coming
12 out of there. And that's the reason we're
13 recommending the deletion of that requirement.
14 MS. TIPSORD: Anything further?
15 302.510.
16 MS. ROSEN: This is just by means of
17 clarification. Regarding this definition section
18 in total, to what specific sections or parts do
19 these definitions apply? Would that just be set
20 forth somewhere? Do you understand?
21 The terms that are defined here, are they
22 to modify everything within Section 302 or do they
23 also apply to later at -- the revisions we made to
24 303 and 304? Do you understand my question?
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1 MR. WARRINGTON: I see. The scope of --
2 MS. ROSEN: Yes, just the scope of the
3 consultant.
4 MR. WARRINGTON: The original intent was to
5 apply to this subpart and be limited to the Lake
6 Michigan regulations. And we can -- we can add a
7 clarifying reference to that.
8 MS. ROSEN: Thank you.
9 MR. RAO: Just following on the question, are
10 most of these -- or all of these definitions drawn
11 from the GLI document? When I say that, Exhibit C.
12 DR. OLSON: Two definitely aren't. Particular
13 organic carbon and dissolved organic carbon were
14 ones that I had to add because I felt the GLI was
15 insufficient on those points. They're not really
16 routine procedures. And if these are implemented,
17 that would be something new. Most of the rest were
18 taken from the GLI, but I can't say that it's
19 100 percent. Those two are definitely different.
20 MR. RAO: The reason I ask this, there was no
21 statement in the statement of reasons or in the
22 testimony regarding this section so I just wanted
23 to get something on the record where these
24 definitions were coming from.
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1 DR. OLSON: They're derived from technical
2 support documents, some paper, but I could supply
3 some more documentation for that.
4 MS. TIPSORD: I also have a question, the
5 phrase "in a place of conflicting definitions" at
6 35 Ill. Adm. Code 302.100. Which definitions
7 conflict with 302.100?
8 MR. WARRINGTON: We'd have to get back to you
9 on that. My recollection is that the definition
10 used in the existing 302/Subpart F, it's slightly
11 different wording for some of the effects that are
12 stated, probably not substantially differently than
13 the GLI proposal.
14 MS. TIPSORD: Could you let us know where
15 there might be this conflict? I think if we have a
16 clarifying statement that these apply to -- these
17 definitions apply to Subpart E, that will also help
18 clear up that question.
19 Anybody else on 510? Whitney, did you
20 have something?
21 MS. ROSEN: Yes I'd like to make a statement.
22 Mr. Warrington in his -- in the opening discussion
23 made a reference to the
bioaccumulative chemicals
24 of concern and the Agency's interest in continuing
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1 discussions in this area as to how they would be
2 developed and implemented and the participation and
3 notice that will be provided to the public on this
4 issue.
5 I would just like to note on the record
6 IERG's interest in continuing those discussions and
7 possibly proposing language which addressed them
8 during the next hearing.
9 MS. TIPSORD: Yes.
10 MR. FREVERT: Can I respond to that?
11 MS. TIPSORD: Sure.
12 MR. FREVERT: Our concern is that Lake
13 Michigan and all the Great Lakes essentially are a
14 valued resource that has been specifically
15 identified for special protection for
16 bioaccumulative substance and that that's not
17 restricted just to those chemicals that are
18 currently known to be
BCCs but also those that
19 behave like
BCCs through a bioaccumulation factor
20 greater than 1,000.
21 If, in fact, we ever encounter another
22 substance that behaves that way, we feel it is
23 important that it be treated with the same degree
24 of seriousness and have the special BCC limitations
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1 such as mixing zone
phaseouts and antidegradation,
2 but that we certainly understand and are fully
3 committed to working with the regulating
4 communities so if that ever happens, they will know
5 as early as possible that that substance is subject
6 to BCC protection.
7 In that regard, we're actually in
8 agreement with the industrial community that
9 they're entitled to know if indeed science
10 identifies another substance that should be treated
11 that way. But that, we don't feel, would be
12 appropriate to disregard until we went through a
13 separate
rulemaking to add it to that list. And
14 with that in mind, we are working with industry to
15 try to find a way to accomplish that.
16 MS. TIPSORD: Mr.
Rao and I were just looking
17 again at the
bioaccumulation chemical concern
18 definition that exists in here. This is a
19 definition section in the rule. The definition
20 seems to have almost criteria in it, and we'd like
21 while you're looking at this, continuing to look at
22 this, perhaps you might consider putting this in
23 its own section or in a section other than just the
24 definition section to make it a more firm rule than
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1 just a definition.
2 MR. FREVERT: I'm not sure I understand what
3 you're recommending.
4 MS. TIPSORD: You define it but you also give
5 criteria on what it takes to become a BCC. And
6 criteria within the definition section can
7 sometimes cause problems. And that's why I suggest
8 you might just take a look at it to see if there's
9 a way to --
10 MR. RAO: It's almost look you have listing
11 criteria here, then you add the language, you know,
12 it's not limited to what you have listed. So it
13 may help make the rules better --
14 MR. FREVERT: What we're trying say is a
15 bioaccumulative chemical of concern is anything
16 that has this
bioaccumulative characteristic; and
17 by the way, here's a handful of them that we
18 already know behave that way. There may be others
19 it's not intended to be a list. It's intended to
20 be a definition based on its
bioaccumulative
21 characteristics.
22 Now, with that in mind, I'm still not
23 sure I understand what you're recommending to us.
24 MR. RAO: Actually we're not recommending
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1 something profound. It's more like we thought
2 since it's an important part of the rule, it could
3 have its own section if you think it's something
4 you can do.
5 MR. FREVERT: My recollection is
BCCs are
6 dealt with specifically in the
antidegradation
7 provisions, the add-on provisions of .512, page 22,
8 and also supplemental mixing provisions in
9 302.515.
10 Would you want us to make reference to
11 that definition in both of those sections?
12 MR. RAO: That would help too.
13 MR. FREVERT: We aim to please.
14 MS. TIPSORD: Anything else on 510?
15 MR. WARRINGTON: In response to your earlier
16 question about conflicting definitions between
17 those in 35 Ill. Adm. Code 302.100, the conflicting
18 definitions in our proposal are the definitions for
19 "chronic toxicity" at page 20 of the proposal, the
20 definitions for "acute toxicity" and "adverse
21 effect" at page 18 of the proposal.
22 MS. TIPSORD: And those are conflicting from
23 302.100 because of the Great Lakes Initiative
24 requirements?
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1 MR. WARRINGTON: The proposed language
2 controlling Great Lakes Initiative.
3 MS. TIPSORD: Thank you.
4 Are there any questions on Section
5 302.511?
6 Section 302.512 any questions?
7 MR. FREVERT: I might just restate once again
8 for the record, this is the section we know there
9 are two changes that we're going to recommend and
10 we're adding, one to add the reference to
11 Environment Protection Act Section 39(n), dredge
12 and fill permits for Lake Michigan, and in
13 paragraph (b), some mechanism to accomplish the
14 notion that these exemptions have to be considered
15 and awarded on a case-by-case basis rather than a
16 blanket basis or wholesale basis.
17 MS. TIPSORD: I have a question in 512(a).
18 It says, "unless it can be affirmatively
19 demonstrated that such change is necessary to
20 accommodate important economic or social
21 development." The method by which a
permittee
22 would demonstrate this are the methods in
23 subsections (1) through (5) and, more specifically,
24 subsection (2)(C); is that correct? That's how
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1 they would make their demonstrations?
2 MR. FREVERT: Yes, although there is more
3 detail in the implementation procedures on how we
4 would consider and evaluate whether this applied to
5 the permit. One of the complications here is that
6 I don't believe there is a standard stereotype case
7 where you could anticipate this happening.
8 An
antidegradation review is requested to
9 support some operating mechanism to keep -- for
10 instance, to keep an electric utility in operation
11 if there were no other alternative. It's a whole
12 lot different than an
antidegradation based on a
13 contaminated sediment cleanup where you had to use
14 a dredging operation that isn't 100 percent
15 efficient and you're going to lose some of the
16 material in the dredging operation versus probably
17 20 other examples.
18 And I believe even the Guidance in some
19 of these questions and answers that USEPA has
20 issued on this subject matter indicates the need to
21 really address -- thoroughly address
22 antidegradation, the impacts, if there are options,
23 the social and economic benefit kind of case by
24 case, almost tailor and customize the analysis.
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1 And I believe that's also one of the reasons that a
2 very important and very critical component of this
3 whole thing is the public involvement that is
4 mandated.
5 There are going to be -- well, I don't
6 know if there will ever be an application in
7 Illinois, but somewhere in the Great Lakes
8 presumably where someone entity asks for an
9 increase in BCC loading. And I assume in that
10 particular case the local officials and regulatory
11 agency are going to have to more or less design or
12 formulate a special study to address and quantify
13 those things.
14 We've consciously refrained from
15 specifying any pass/fail criteria like a 10 percent
16 increase in employment or something of that as a
17 satisfactory economic justification. Now, I don't
18 know whether I clarified or further confused but --
19 MS. TIPSORD: Actually clarified quite a bit.
20 Some of this implementation we're talking about is
21 addressed in the Agency draft rules as well,
22 correct?
23 MR. FREVERT: That's correct, yes.
24 MS. TIPSORD: So we're going to have rules on
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1 how the Agency is going to do this and then we'll
2 have "This is the standard" --
3 MR. FREVERT: This is the standard that we're
4 have to judge whether it's been met if we ever get
5 a request for increased load.
6 MS. TIPSORD: If the Agency denies that, is
7 that
appealable to the Board?
8 MR. FREVERT: Anything we do is
appealable to
9 the Board.
10 MS. TIPSORD: Thank you. I also have a
11 question then on subsection (b). Along the same
12 lines you talk about "short-term" and then
13 "temporary (i.e. weeks or months)." Does the
14 Agency have any qualification to that or could they
15 qualify? I mean, 12 months? Six months?
16 MR. FREVERT: Quite honestly, we have
17 struggled with that ourselves. That's language
18 that we took as is from the Guidance. This is
19 federal language. I think what we'll clarify it
20 as, if we can find a way to apply this case by case
21 application where there has to be some designation
22 short-term, you know, almost any dredging project
23 could be characterized as short-term. Construction
24 activities, is short-term one week? Is it six
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1 months? Is it a year and a half? I think that's
2 probably another reason USEPA has clarified in
3 their guidance the requirements that even these
4 exceptions have to be consciously considered case
5 by case whether or not they meet the intent. And I
6 don't know.
7 The other thing I might -- as long as I'm
8 speaking out and clarifying -- in addition to
9 appeal rights, if we denied somebody's request to
10 apply this
antidegradation waiver through a
11 demonstration, they not only have the option of
12 appealing this, they also have the option of going
13 directly to the Board with an adjusted standard and
14 going to
rulemaking and saying, "Well, maybe we
15 don't comply with this rule, but there's a
16 justification for us doing this so let's go to the
17 rulemaking and do that." There are more than one
18 escape routes if this creates an unworkable
19 situation.
20 MS. TIPSORD: Thank you.
21 Anyone else? Moving on to 302.513?
22 302.515?
23 March 23rd, 1997. Do we have to use that
24 date or can we use the effective date of the
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1 rules? If we have to use March 23rd, 1997, could
2 you explain why and explain why this is not a
3 retroactive application of the rule?
4 MR. FREVERT: My recollection is this is a
5 direct extraction from the Guidance. These dates
6 were specified in the March 23, '95 publication.
7 If there's anyone out there that can
8 agree with me or correct me, please speak up.
9 That's my recollection. I'll be happy to confirm
10 it.
11 MS. TIPSORD: Yes, we'll have to explain why
12 this is not a retroactive application if we use
13 those dates. This would appear to make the rule
14 effective prior to the Board adopting that. And
15 that will be a problem at other levels.
16 MR. FREVERT: And that's a good point. I
17 think if we have to change that date, obviously to
18 meet our Illinois regulatory process, then we'll
19 have to have some communication with USEPA and find
20 a way to make it all work because I am sure this
21 number was the number imposed upon us.
22 MR. MOSHER: Excuse me. I think she's going
23 to run out of paper.
24 MS. TIPSORD: Now might be a good time to take
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1 a 10-minute break. Thanks.
2 (Recess from 2:08 p.m. until
3 2:23 p.m.)
4 MS. TIPSORD: Let's go back on record.
5 Before we proceed, due to some airline
6 problems -- Mr.
Frevert is going to have to leave
7 in the next hour or so -- we also have -- I'm
8 sorry. I've forgotten your name.
9 MS. KARNAUSKAS: Joan
Karnauskas.
10 MS. TIPSORD: -- Joan
Karnauskas who's here to
11 provide testimony. So at this time what I think
12 we'll do is let Ms.
Karnauskas present her
13 testimony and see if there are any questions for
14 her, and then we will address the remaining
15 questions to the Agency. If Mr.
Frevert prefers
16 that we wait to have answers at this time, we can
17 do that except that I am going to ask that most of
18 the questions -- we'll read questions into the
19 record and we would like -- I would like to have
20 them answered prior to the target June 19th date
21 simply because some of these questions do need to
22 be addressed before we can proceed. So we will
23 read all questions from the Board members and the
24 public into the record after that and get them on
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1 the record.
2 Is that satisfactory to everyone?
3 MR. FREVERT: Appreciate it.
4 MR. WARRINGTON: Okay.
5 MR. FREVERT: Joan, come on up.
6 MS. KARNAUSKAS: Good afternoon. As has been
7 indicated, my name is Joan
Karnauskas.
8 MS. TIPSORD: You need to be sworn in first.
9 (The witness was sworn by the
10 court reporter.)
11 MS. KARNAUSKAS: My name is Joan
Karnauskas,,
12 and I am the chief of the Standards and Applied
13 Sciences Branch of the USEPA, Region V, Water
14 Division. Thank you for the opportunity to speak
15 this afternoon.
16 It is somewhat unusual for USEPA to
17 participate in state proceedings such as this, but
18 there is a matter of some urgency relating to this
19 rulemaking of which I wish to make sure you are
20 aware. That matter is the issue of timing. Under
21 the Clean Water Act, states had until March 23rd,
22 1997 to adopt rules conforming to the Great Lakes
23 Guidance which, as you know, was published on
24 March 23rd, 1995. Absent state adoption by
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1 March 23rd, 1997, the statute requires USEPA to
2 promulgate the Guidance in that state.
3 There exists no statutory waiver to this
4 requirement. The Agency is committed to working
5 with the states toward adoption and promulgation of
6 the Guidance, and it has been our hope that we
7 would not have to promulgate for any of the
8 states. However, we will promulgate in those
9 situations where we find that the state proposals
10 are significantly lacking in consistency or where
11 there is unreasonable delay.
12 I encourage you to explore options for
13 expediting this
rulemaking process in order to
14 minimize the likelihood of federal action.
15 Thank you.
16 MS. TIPSORD: Are there any questions?
17 MR. FREVERT: I have a question.
18 Ms.
Karnauskas, is there any indication
19 that the environmental community that's overseeing
20 the Great Lakes Initiative has made gestures or
21 indications that they might intercede with some
22 kind of litigation on those states that are late in
23 adopting the Guidance?
24 MS. KARNAUSKAS: Yes, the National Wildlife
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1 Federation has filed a notice -- it was filed on
2 March 24th -- of their intention to sue the
3 Agency. We expect to see the complaint on May 24th.
4 MS. TIPSORD: Thank you very much. We really
5 greatly appreciate your being here.
6 Then we will proceed with the questioning
7 and I'll continue section by section and keep an
8 eye on the time. And we're done with Section 515.
9 Are there any questions on 517?
10 518? There is no 518.
11 519.
12 I'm sorry. Go ahead. Whitney.
13 MS. ROSEN: Thank you. Does the Agency agree
14 that the GLI Federal Guidance provides for the use
15 of test species other than those referenced within
16 proposed Section 302.519(b)(3)?
17 MR. MOSHER: Yes. There are a few other
18 species that are provided for in the GLI.
19 MS. ROSEN: Will the Agency commit to
20 including language which will allow for the use of
21 other test species consistent with the GLI?
22 MR. MOSHER: I don't think we'd have a problem
23 with that as long as we word that provision such
24 that we can get the more common and widely used
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1 species to be done also. And if someone chooses to
2 use a third or a fourth species that is on that GLI
3 list, we wouldn't have a problem with that.
4 MS. ROSEN: So you are committing to possibly
5 continuing discussions during the interim prior to
6 the next hearing and work out language on that
7 issue?
8 MR. FREVERT: It's our intent to modify the
9 language of this -- I believe it's Section
10 302.519(b)(3). It's our intent to -- and perhaps
11 paragraph (c) as well -- it's our intent to draft
12 some supplemental language and have it available
13 for the Board at the earliest time possible.
14 MS. TIPSORD: Mr.
Frevert, there's no
15 paragraph (3). Is that the hanging part?
16 MR. WARRINGTON: That's the other part of the
17 errata list.
18 MR. FREVERT: There will be a (b)(3).
19 MS. TIPSORD: That was one of my other
20 questions.
21 MS. ROSEN: That was what I was referencing.
22 Thank you.
23 MS. TIPSORD: Can we back up to 517?
24 Dr. Girard, you had a question?
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1 DR. GIRARD: I had a question. It went by me
2 very quickly. If you can look at 302.517(c), we've
3 got several equations down there; and in the first
4 equation where "U" is the concentration of
5 un-ionized ammonia in the denominator there,
6 there's a bracket at the beginning of that, but I
7 don't see a bracket ending.
8 DR. OLSON:
Um-hum.
9 DR. GIRARD: And I just wonder if you could
10 clarify that in your comments back to us if there's
11 supposed to be an ending bracket.
12 And also look down at the equation for
13 "N" right below that, same thing. We have a
14 beginning bracket after "U" and I don't see an end
15 bracket in that equation. So if you could just
16 take a look at that and get back to us and tell us
17 how that should be.
18 MR. MOSHER: I think we can solve that right
19 now. There should be a closing bracket. In the "U
20 equals" equation there should be a closing bracket
21 after the "0.0559." And the same is true for the
22 "N equals" equation. And that, of course, isn't a
23 new proposal. That's just a -- well, I guess it
24 is -- it's -- it should be identical to what exists
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1 in 302.212, and we'll get those brackets on there.
2 MR. POLLS: Could I ask a question on that
3 302.517? With regard to the standards that are in
4 this proposal, are those identical to the standards
5 that were in the recent regulatory hearing on
6 ammonia that was brought before the Board?
7 MR. MOSHER: Yes, they are.
8 MS. TIPSORD: Going back to 519, Subsection (f).
9 Can you refer to the procedure of this subpart set
10 for the minimum data requirements? Is that indeed
11 for the subpart or just to the section -- the
12 subsection?
13 MR. WARRINGTON: It's referral to all of
14 Subpart E.
15 MS. TIPSORD: Then in view of that, I'd ask
16 you to take a look at this Subsection (g) and (h)
17 as well and consider the possibility of putting
18 them in a separate section. We have -- Subsection
19 (g) and (h) then also don't seem to relate to
20 what's in (a) through (e), and (h) does refer to
21 (a) through (e), but then gives some sort of
22 exception as far as when they don't apply.
23 And it's just been pointed out to me that
24 a change that Jay
Carr asked for in TACO, on page 28
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1 you have (g) starred out with no -- (g)(1) is the
2 first part of it. They have asked that something
3 be inserted in (g) before you get to (1.)
4 MR. WARRINGTON: That should have a narrative
5 before you go to the letter?
6 MS. TIPSORD: Yes. Which is new to TACO.
7 They asked us to do it in TACO, particularly with
8 Subsection (f). Since it refers to the entire
9 subpart, it's kind of buried in this. So I just
10 ask you to take a look at the organization.
11 And finally the phrase "proof and
12 persuasion" in (g)(3) talks about "in an action
13 where alleged violation of the toxicity water
14 quality standard is based on alleged excursion of a
15 criterion or value, the person bringing such action
16 shall have the burdens of going forward with proof
17 and persuasion." That seemed to be different.
18 MR. WARRINGTON: It may be, but I think that
19 was taken from the existing Board rules.
20 MS. TIPSORD: Could be. It just seemed to be
21 a different phraseology.
22 Then I have a note here. You talk about
23 challenging the validity and correctness of the
24 criterion, and you have to do it the first time
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1 it's given to you in an NPDES permit. If you don't
2 do it in an NPDES permit, you seem to waive the
3 ability to challenge that later.
4 Would that be true if, for example,
5 permittees' circumstances changed in some manner
6 that would affect that criterion?
7 MR. WARRINGTON: The intent was to make the
8 procedure parallel the existing Subpart F
9 procedures. And off the top of my head, I can't
10 give you an opinion as to whether change in
11 circumstance would change that binding effect of
12 the application. That's one we'll have to get back
13 to you on.
14 MR. FREVERT: Again, what specific paragraph
15 is that cited in?
16 MS. TIPSORD: (G)(1), I think. Yes, it's in
17 (g)(1), talks about waiver.
18 Does anyone else have questions on 519?
19 523?
20 525?
21 The question I have here is to basically
22 the entire second sentence. It may be because it's
23 so long. "To the extent available, and to the
24 extent not otherwise specified, testing
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1 procedures," et cetera, "must be according to
2 methods published by USEPA or nationally recognized
3 standards organizations."
4 What exactly does that mean? That you
5 can use any testing procedures that are published?
6 MR. WARRINGTON: Once again, 302.525 is taken
7 from the existing Board rules in Subpart F. Off
8 the top of my head, I've not been able to review it
9 as to what the scope of methods is that we've
10 accepted over the years in applying Subpart F, but
11 it is intended to be consistent with that.
12 MR. FREVERT: My recollection, even back from
13 those original
tox exchanges, was the intent to
14 bring in things like ASTM standards, other people
15 that are in the business of publishing
16 scientifically-recognized and testing and even
17 sample collection procedures.
18 Why that was the language to accomplish
19 that that was selected in R88-21, I don't know.
20 But my recollection is saying you're not limited to
21 just UA published procedures, but it needs to be
22 something that's undergone some peer-reviewed
23 adoption like American Standards for Testing
24 Materials, I believe, is what "ASTM" stands for.
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1 Those kinds of recognized testing procedures.
2 MS. TIPSORD: This is intended to give the
3 regulative community a variety of places to
4 check --
5 MR. FREVERT: Access to those other
6 procedures, yes.
7 MS. TIPSORD: Thank you.
8 MR. RAO: A follow-up question. With regard
9 to the standards adopted by nationally-recognized
10 institutions, under Part 301, 301.106 incorporates
11 by reference, we have a whole list of documents
12 that we incorporated published by ASTM, NTIS and,
13 I guess, USEPA.
14 Are those documents in any way related to
15 what you're proposing here under 302.525?
16 MR. FREVERT: Yes, I would assume so, yes. It
17 may not be all-encompassing, but this language is
18 intended to capture and accommodate those kinds of
19 things, yes.
20 MS. TIPSORD: 527?
21 MR. RAO: I have a question which relates to
22 what we were talking about just now. With regards
23 to analytical testing, you say the testing should
24 be done in accordance or consistent with the
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1 USEPA's current manual of practice. Is there a
2 specific document that you're referring to?
3 MR. FREVERT: Yes, I think it is, but these
4 gentlemen may work with it more on a day-to-day
5 basis than I do.
6 MR. RAO: Mr.
Mosher?
7 MR. MOSHER: We can't remember where that came
8 from, but we'll get back to you.
9 MR. RAO: Can you take a look at it and, if
10 there's a document, perhaps incorporate it by
11 reference?
12 MR. FREVERT: There may even be more than one
13 document. It's not at all unusual for USEPA to
14 publish analytical methods manuals for, you know,
15 certain specialized areas of analysis.
16 MS. TIPSORD: 529?
17 I would just point out that 302.529 is
18 identical to 302.101.
19 MR. WARRINGTON: Okay.
20 MS. TIPSORD: I'm not sure you need it both
21 places. You might want to take a look at that.
22 MR. WARRINGTON: Okay.
23 MS. TIPSORD: Then 531?
24 MR. RAO: I have a question on 531. Under the
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1 section you have incorporated a whole bunch of
2 documents, mostly federal regulations, plus some
3 specific testing protocols. Would it be possible
4 for you to provide a brief discussion as to the
5 relevance of these documents while you're
6 incorporating these documents in the rule? You can
7 do that in writing if you think that would be
8 easier.
9 MR. MOSHER: Okay. We'll put something
10 together on that one too.
11 MR. RAO: That would help us a lot. We had a
12 lot of questions on recent rules that had a whole
13 bunch of
incorporations.
14 Another question on incorporation by
15 reference is under Subsection (a) you have a list
16 of abbreviations. Are these abbreviations used in
17 the proposal or in the documents that we have
18 incorporated by reference?
19 MR. WARRINGTON: I believe they're used in
20 both. I believe we also just copied that simply
21 from the existing Board regulations just to --
22 MS. TIPSORD: Would it be possible -- some of
23 these really should be in the definitions section.
24 "USEPA" should be in the definitions section if
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1 it's not already. Ask I don't think you need to
2 repeat it here. I think the point
Anand is getting
3 at is with this section, you don't use "ASTM,"
4 "GPO" or "NTIS" or "standard methods." So if you
5 do use them elsewhere, they should also be in the
6 definitions section rather than being here.
7 MR. WARRINGTON: Okay.
8 MS. TIPSORD: And I have also a question. I
9 did not find a copy of the American Public Health
10 Association document in the proposal. Did I
11 overlook it? If I did, I apologize. If not, can
12 we get a copy of that either --?
13 MR. WARRINGTON: I can't recall it either.
14 But we can supply you with a copy.
15 MS. TIPSORD: That would be good.
16 MR. RAO: Actually we have in the Board
17 library the Standard Methods.
18 MS. TIPSORD: We don't need it then. Thank
19 you.
20 533? Any questions?
21 MR. RAO: I have a clarification question.
22 Under Subsection (b), you say "Minimal data
23 requirements." Should it be "minimum" or is that
24 just "minimal"?
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1 DR. OLSON: "Minimum" is a noun, I believe,
2 and "minimal" is an adjective.
3 Any grammarians present?
4 MR. FREVERT: Not me.
5 MR. COHEN: I'll weigh in. I think it is a
6 noun, but I think it should be used as a noun.
7 It's a double noun, "minimum" and "data." That's
8 my vote.
9 MR. FREVERT: You're going to have to be sworn
10 in. No.
11 MS. TIPSORD: Anything else?
12 535?
13 540?
14 542?
15 Clarification point. I assume that the
16 entire table in Subsection (b) is new? It should
17 all be underlined, correct? 542(b)? That is all
18 new?
19 MR. MOSHER: I think our copy has it all
20 underlined.
21 MS. TIPSORD: The "4" is not underlined in my
22 copy.
23 DR. OLSON: It's all new.
24 MS. TIPSORD: 545?
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1 550?
2 Let's maybe make this easier. Does
3 anybody have any other questions on 302?
4 MS. ROSEN: Thank you.
5 Regarding Section 302.560(b)(2)(A) and
6 (B), does the Agency agree that the GLI Guidance
7 provides for the use of other data than those
8 referenced within those subdivisions, (A) and (B)?
9 DR. OLSON: That's something I talked about
10 with Eric a little bit.
11 Madam Hearing Officer, we have a problem
12 in this wording. For Tier II, if you only have
13 BAFs determined by these methods, then that makes
14 it a Tier II. But the criterion depends on two
15 factors. It depends on the toxicity factor in the
16 numerator and it depends on the BAF factor in the
17 denominator. If either one of those is deficient,
18 it has to be a Tier II.
19 So I had -- it was pointed out to me that
20 that wasn't worded very well, and the substance is
21 all I care about. If we can get -- if we can find
22 some wording for that -- wording I added -- IERG
23 gave us some wording that unfortunately was not
24 adequate at all --
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1 MS. ROSEN: That's fine.
2 DR. OLSON: -- under Tier II -- so this is our
3 page 46, Section 302.560(b)(2), Tier II, letter (A)
4 "For organic chemicals with a BAF of greater than
5 125, at least a BAF derived from a measured BCF or
6 calculated BCF is required" would do it. I don't
7 know whether the lawyers would like that.
8 MR. FREVERT: We'll continue to work on this
9 and get you revised language along with the other
10 revisions.
11 MS. TIPSORD: Okay.
12 MR. FREVERT: But our intent is to capture
13 apparently more than these words capture.
14 MS. ROSEN: So just to kind of restate, you
15 are committed to continuing discussions on this
16 issue?
17 MR. FREVERT: Yes, I think -- I think
18 generally we're in agreement on what we're trying
19 to accomplish. We're just trying to find the right
20 words to accomplish it.
21 MS. ROSEN: Thank you.
22 MR. COHEN: One quick question. I'm sorry to
23 skip back to 302.355 -- part 55 -- 302.555.
24 Addressing your attention to the introductory
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1 paragraph, the last sentence, I wanted to ask
2 Dr. Olson or Mr. Frevert, how would this possible
3 selection of different target species for non-
BCCs
4 be implemented?
5 DR. OLSON: Well, this would be done in the
6 permit process, and we really don't have any idea
7 what -- how this would be done at this point
8 because this is a very brand new area. But in any
9 permit discussion over the use of criteria, all
10 these issues can be brought to the floor.
11 And we're saying that this is up for
12 discussion for non-
BCCs that if we can decide that
13 some other target species are adequate or superior,
14 those should be used. That's all we're saying.
15 But we don't really have any idea how that can be
16 done at this point.
17 MR. FREVERT: I guess the only thing I'd
18 supplement that -- and stating from a practical
19 matter -- we think there are very few, if any,
20 circumstances where we're going to be able to apply
21 wildlife criteria with the data set that's
22 available now. But we believe if somewhere there
23 is a methodology and a procedure down the road to
24 allow that, there may be the need to apply it.
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1 I believe in the seven years that we've
2 had Subpart F on the books, we've derived wildlife
3 criteria no times?
4 MR. WARRINGTON: That's correct.
5 MR. FREVERT: If there's a circumstance where
6 there is a wildlife community that's in danger,
7 presumably we are capable of responding if there's
8 scientific data that suggests what our response
9 is. But lacking that data, there's really nothing
10 we can do. And our experience has been we've yet
11 to find that wildlife community at risk here in
12 Illinois anyway.
13 MS. TIPSORD: Any other questions to Part 302?
14 Let's move along to Part 303. Are there
15 any additional questions of Part 303? Only Section
16 443 is being amended. Are there any questions?
17 MR. FREVERT: May I point out there was some
18 testimony earlier this morning.
19 MS. TIPSORD: How about Part 304?
20 Seeing none, can we go off the record for
21 just a second?
22 (Discussion off the record.)
23 MS. TIPSORD: Seeing no additional questions
24 at this time, I think we'll --
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1 Let's go off the record for just a
2 minute.
3 (Discussion off the record.)
4 MS. TIPSORD: Let's go back on the record.
5 Let me first say that we will -- I'll put
6 out a hearing officer order to follow this up, but
7 we will require
prefiling testimony for the July 28th
8 hearing to be filed on July 14th, 1997. I will
9 also ask that the Agency get any written comments
10 in as soon as practicable so that we can
11 incorporate them in any opinion and order the Board
12 does --
13 MR. WARRINGTON: First notice. Glad to.
14 MS. TIPSORD: -- for the targeted June 19th
15 date.
16 MR. WARRINGTON: And if the Board has any
17 additional questions that arise after this hearing,
18 please feel free to copy me or Toby on them. It
19 goes to the public too. If there's any questions
20 or comments that they'd like the Agency to consider
21 prior to your target date, we'll do our best.
22 MS. TIPSORD: Dr. Gerard?
23 DR. GIRARD: Thank you.
24 I'd just like to give a special thanks to
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1 Joan
Karnauskas of the USEPA for stopping by our
2 hearing, and I think all the participants here have
3 heard the
USEPA's plea for expediency in this
4 rulemaking, and we do understand why you make that
5 plea. And we have targeted a completion date
6 sometime in November of this year for this
7 rulemaking, and I'm sure I can speak on behalf of
8 the Board and the Illinois EPA and the industrial
9 representatives here that everyone is working
10 toward making that target date. And so you can
11 take that back to your Agency. But we will work
12 very diligently to meet that, and it will be done
13 in a timely fashion. But thank you for coming.
14 MS. TIPSORD: I echo Dr.
Girard's thanks.
15 We greatly appreciate your being here.
16 And I thank all of you for your time and
17 attention here today. I think we're well on our
18 way to developing a good record, and I look forward
19 to seeing all of you in July in Waukegan. Thank
20 you very much.
21 This hearing's closed.
22 (Whereupon, at 2:55 p.m., the
23 hearing was adjourned.)
24
L.A. REPORTING (312) 419-9292
133
1 STATE OF ILLINOIS )
) SS.
2 COUNTY OF DU PAGE )
3
4 I, KIMBERLY A. SMITH, Certified Shorthand
5 Reporter No. 84-1483, Certified
Realtime Reporter,
6 Registered
Diplomate Reporter, and Notary Public in
7 and for the County of
DuPage, State of Illinois, do
8 hereby certify that I caused to be reported in
9 shorthand and thereafter transcribed the foregoing
10 transcript of proceedings.
11 I further certify that the foregoing is a
12 true, accurate, and complete transcript of my
13 shorthand notes so taken as aforesaid; and further,
14 that I am not counsel for nor in any way related to
15 any of the parties to this action, nor am I in any
16 way interested in the outcome thereof.
17 IN TESTIMONY WHEREOF, I have hereunto set
18 my hand and affixed my
notarial seal this 22nd day
19 of May, 1997.
20
______________________________________
21 Kimberly A. Smith, CSR, CRR, RDR
Notary Public,
DuPage County, Illinois
22
My Commission Expires
23 September 3, 1997.
24
L.A. REPORTING (312) 419-9292