O~(0
RO~
(Rulemaking Water)
STATE OF lLLINu~
Pollution Control
Board
NOTICE
OF FILING
Dorothy Guim, Clerk
Pollution Control Board
100
West Randolph Street
Suite 11-500
Chicago, Illinois
Mathew Dunn
Illinois Attorney General’s Office
Environmental Control Division
James R. Thompson Center
100 West Randolph Street
Chicago, Illinois 60601
Legal
Service
Illinois Department of Natural Resources
One Natural Resources Way
Springfield, Illinois 62702-1271
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe
Pollution Control Board the
AGENCY REGUALTORY PROPOSAL, MOTION FOR
ACCEPTANCE,
and APPERANCE ofthe Illinois
Environmental Protection Agency, a
copy ofwhich is herewith served upon you.
Illinois Environmental Protection Agency
1021
North Grand Avenue East
Springfield, Illinois 62794-9276
(217)782-5544
REc~.
CLERK’S
~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
f~41JV U ~
2004
IN THE MATTER OF:
PROPOSED AMENDMENTS TO 35 ILL.
)
ADM. CODE 302 AND 303
).
StefanieN
iers
Assistant
unsel
Division of
egal Counsel
Dated:
November
5,
2004
•RECE~VEL~
CLERK’S OF3~F
BEFORE THE ILLINOIS POLLUTION CONTROL BOA~” ~
82004
O
STATE OF ILLINOIS
IN THE MATTER OF:
)
()~//
Pollution Control
Board
~
PROPOSED AMENDMENTS TO 35
ILL.
)
(Rulemaking Water)
ADM. CODE 302 AND 303
)
MOTION FOR ACCEPTANCE
NOW COMES the Illinois Environmental Protection Agency (“Illinois
EPA”), by
and through its attorney,
Stefanie N. Diers, and pursuant to
35 Ill. Adm. Code 102.106,
102.200, and 102.202, moves the Illinois Pollution Control Board (“Board”) accept for
hearing the Illinois
EPA’s proposal for amendment to 35
Ill. Adm. Code Part 302 and
303.
This regulatory includes:
1.
Notice ofFiling;
2.
Appearance ofAttorney for the Illinois Environmental Protection Agency;
3.
Director Cipriano’s Statement of Submittal;
4.
Certification ofOrigination;
5.
Statement ofReasons and
Exhibits;
6.
Agency Analysis ofEconomic and Budgetary Effects of Proposed
Rulemaking;
7.
Notice ofProposal and Proposed Amendments;
8.
Computer disc containing Notice ofProposal and Proposed Amen~1rnents;
and
9.
ProofofService.
Legal
Counsel
ovember
5,
2004
IllinOis Environmental Protection Agency
1021
North Grand Avenue East
Springfield,
Illinois 62794-9276
(217) 782-5544
RECEflV~ D
CLERK’S
OF~CE
NOV
082004
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
•
STATE OF lLLh~OIS
IN THE MATTER OF:
)
0
Pollution Control Board
R~Q4-
PROPOSED
AMENDMENTS TO 35 ILL.
)
(Rulemaking Water)
ADM. CODE
302 AND 303
)
APPERANCE
The undersigned,
as one ofits
attorneys, hereby enters her APPERANCE
on
behalfof Respondent, Illinois Environmental Protection Agency.
ILLIN~ E~IRO~IEN
P
OT~TIONAGENCY
~
~
/
St~
e N. Diers
s
stant Counsel
i
ision of Legal Counsel
Dated:
ovember
5,
2004
Illinois Environmental Protection Agency
1021
North Grand Avenue East
Springfield, Illinois
62794-9276
(217) 782-5544
RECE~V~D
•
CLERK’S
OFF’CE
NOV
082004
BEFORE THE ILLINOIS POLLUTION CONTROL BOAI~ATE
OF ILLINOIS
I
~
Pollution Control Board
IN THE MATTER OF:
)
~
“1
)~-
PROPOSED AMENDMENTS TO 35
ILL.
)
(Rulemaking Water)
ADM. CODE 302 AND 303
)
•
AGENCY PROPOSAL OF REGUALTIONS
•
Pursuant to Section 27 ofthe Illinois Environmental Protection Act (415 ILCS
5/27), the Illinois Environmental Protection Agency hereby moves the Illinois Pollution
Control Board to adopt the attached proposed regulations.
Respectfully submitted,
Renee Cipriano
Director
Dated:
Wovern
bei
5)
2OO~
Illinois Environmental Protection Agency
1021
North Grand Avenue East
Springfield, Illinois 62794-9276
CLERK’S
OF’~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
NOV
08
20th
-~
STATE OF
ILLINOIS
IN THE
MATTER OF:
)
~
~f
L~
Pollution Control Board
PROPOSED AMENDMENTS TO 35
ILL.
)
(Rulemaking Water)
ADM. CODE 302 AND 303
)
CERTIFICATION
OF ORIGINATION
NOW COMES the Illinois Environmental Protection Agency to
certify in
accordance with 35
Ill.
Adm. Code
102.202(h) that this proposal amends the most recent
version of the Table ofContents to Part 302 and 303
as published on the Pollution
Control Board’s web site.
AGENCY
Division ofLegal Counsel
Dated:
5,
2004
Illinois Environmental Protection Agency
1021
North Grand Avenue East
Springfield,
Illinois 62794-9276
RECE~V~
CLERK’S
OF~’~
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
NOV
082004
IN THE MATTER OF:
)
P~Uution
Control
Boaro
PROPOSED AMENDMENTS TO 35
ILL.
)
(Rulemaking Water)
CODE 302
AND 303
)
STATEMENT OF REASONS
The Illinois Environmental Protection Agency (“Illinois EPA”) hereby submits its
Statement ofReasons for the above-captioned proceeding to the Illinois Pollution Control
Board (“Board”) pursuant to Section
27 ofthe Illinois Environmental Protection Act
(“Act”), 415
ILCS
5/27 (2002), and 35
Ill. Adm.
Code Section
102.200 and 102.202.
I.
STATUTORY BASIS
This is a regulatory proposal submitted pursuant to
Sections 27 and 28 ofthe Act.
See 415
ILCS
5/27 and 28.
It is not being proposed as an
identical in substance, fast
track or federally required rule.
In addition, this proposal is being filed as a general
(rather than emergency or peremptory) rulemaking pursuant to
Section 5-40 of the
Illinois
Administrative Procedure Act.
See 5 ILCS
100/5-40.
Section 27 ofthe Act
confers general
substantive rulemaking authority on the Board.
The contents of this
regulatory proposal are within these general rulemaking powers.
Pursuant to the United States Environmental Protection Agency (“U.S. EPA”),
Illinois does not have water quality standards for bacteria that comply with the
requirements of Section 303(i) ofthe Clean WaterAct.
See
33
U.S.C. Section
1313;
$~
~
40 C.F.R. Part 131.
Section 303(i) of the Clean Water Act requires that no laterthan
April10,
2004, “each state having coastal recreation waters shall adopt and
submit to ~he
Administrator water quality criteria and
standards for the coastal recreation waters ofthe
state for those pathogens indicators for which the Administrator has published criteria
under section 304(A)”.
See
33 U.S.C.
1313 &
1314.
This summer U.S.
EPA proposed
Water Quality Standards for Coastal and Great Lakes Recreation Waters.
See 40 C.F.R.
Part
131.
If U.S. EPA’s proposal
for Water Quality Standards for Coastal and Great
Lakes Recreation Waters
is adopted as a
final rule, the Federal water quality criteria will
apply to Illinois’ coastal recreation waters unless Illinois adopts bacteria standards for
coastal
recreation waters prior to the final adoption ofU.S. EPA’s proposal’.
Id.
Pursuant to
Section 303 of the Clean Water Act, it is the primary responsibility of
the states to set water quality standards for intrastate waters and submit changes to those
standards to
U.S. EPA for approval.
See
33 U.S.C. Section
1313.
Section
13(a) ofthe
Environmental
Protection Act specifies the rulemaking authority of the Board to adopt
regulations which prescribe “Water quality standards specifying, among other things,
the
maximum short-term and long-term
concentrations ofvarious contaminants in the waters,
and the minimum permissible concentrations ofdissolved oxygen and other desirable
matter in the waters,
and the temperature ofsuch waters.”
See 415
ILCS
5/13(a)(1).
Section
303 ofthe Clean Water Act
also provides that water quality standards
shall include the designated use or uses to be made ofthe water and
water quality criteria
necessary to protect those uses.
See 33 U.S.C. Section
1313.
The designated uses to be
•
considered by the States
in establishing waterquality standards are specified in the Clean
Water Act.
Those
designated uses are as follows:
public water supplies, propagation of
fish
and wildlife, recreation, agriculture uses, industrial uses and navigation.
Id.
States
are to review theirwater quality standards at least once every three years, and, if
Pursuant to the Beach Act, coastal recreation waters
are defined as
:
(1) Great Lakes; and (2) marine
coastal waters (including coastal estuaries) that
are designated under Section 303(c)
by the
state for the use
of swimming, bathing, suifmg, or similar activities.
$~
33 U.S.C.
1362.
2
appropriate, revise or adopt new standards.
~.
Revisions and adopted new standards
must be
submitted to U.S.
EPA and U.S.
EPA must approve or disapprove any new or
revised standards.
Id.
II.
REGULATORY PROPOSAL
A.
Purpose and Effect of Regulatory Proposal
1.
Background:
Bacteria
On March 23, 2004 a letter was sent to U.S. EPA from Ms. Marcia Wilihite,
Bureau Chieffor the Illinois EPA’s Bureau ofWater,
confirming that Illinois EPA would
propose
Escherichia coli
(E.coli)
bacteriawater quality standards for Lake Michigan
beaches to the Illinois Pollution Control Board by September 30, 2004.
(See Exhibit D).
The changes to
the Lake Michigan standards are necessary in
order to comply
with Section 303(i) ofthe Clean Water Act, also known as the Beaches Environmental
Assessment and Coastal Health Act.
(“Beach Act”).
See 33
U.S.C. Section
1313.
The
Beach Act applies to coastal recreational waters, which include Great Lakes waters and
requires,
among.otherthings,
a Clean Beaches Plan.
The Clean Beaches Plan includes
two major goals ofpromoting recreational water quality programs nationwide and
creating scientific improvements that support timely recreational water monitoring and
reporting.
The Beach Act requires bacteria standards for the coastal recreation waters of
the State
for those pathogens and pathogen indicators for which the U.S.
EPA
Administrator has published criteria.
Also, Illinois EPA is proposing bacteria water quality standards
for Illinois’
•
portion of the Mississippi River.
The proposed changes for Illinois’ portion ofthe
Mississippi River stem from an agreement initiated by U.S. EPA regarding negotiations
3
with the Sierra Club in June 2004.
U.S.
EPA seeks to have all states
on the upper
Mississippi River adopt E. coli standards.
According
to U.S.
EPA, if a state does not
follow through with its commitment to adopt E. coli
standards for the Mississippi River,
U.S. EPA will, if necessary, promulgate water quality standards for them.
Illinois has
committed to U.S.
EPA it will initiate its rulemaking process to
adopt E. coli standards by
September 30, 2004.
In 1986,
U.S. EPA published Ambient Water Quality Criteria for Bacteria-l986.
This document contains U.S.
EPA’s current recommended water quality criteria for
bacteria to protect people from gastrointestinal illness in recreational waters, i.e. water
designated for primary contact recreation or similar full body contact uses.
Primary
contact recreation is typically defined by States to
encompass activities
that could be
expected
to result in the ingestion ofor immersion in water, such as swimming, water
skiing, surfing, kayaking, or any other activity where immersion in the water is likely.
The main route ofhuman exposure to illness-causing organisms in recreational water is
through accidental ingestion of fecally contaminated water while engaging in these
activities.
U.S. EPA believes that E. coli
is the best indicator organism for assessing the
risk ofacute gastrointestinal illnesses caused by the incidental ingestion offecally
contaminated recreational waterbody.
2.
History
of the Lake Michigan Basin Water Quality Standards
and Existing Mississippi River Site Specific Water Quality Standards
The Lake Michigan Basin Water Quality Standar4 for fecal coliform has not been
revised since December 24,
1997.
No site-specific standards exist for the Mississippi
River.
Illinois’
existing fecal coliform rules are not being revised with this proposal.
4
3.
Regulatory Language ofthe Proposal:
Proposed Bacteria
Standard
The Illinois EPA is proposing to make three changes to the Lake Michigan Basin
bacteria water quality standards.
First,
a definition will be provided for “designated
bathing beach waters”.
Second, the rule will only apply during the recreational season,
May through
October, since bacterial limits are intended to protect humans during whole
body contact activities that occur only during the warmer months. Third, the rule will
establish
a geometric mean and
single sample maximum for E-coli standards.
U.S. EPA
guidance pertaining
to the National Criteria
indicates that a geometric mean has the most
direct relationship to risk over the course ofthe recreational season and a single sample
maximum is the best value against which
to compare individual measurements.
Proposed changes to 35 Ill. Adm.
Code Part 302 are presented and explained
below.
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE
C:
WATER POLLUTION
CHAPTER I:
POLLUTION CONTROL BOARD
•
PART 302
-
WATER QUALITY STANDARDS
SUBPART E:
LAKE MICHIGAN BASIN WATER QUALITY STANDARDS
Section
302.501
Scope, Applicability
and Definitions
“Designated Bathing Beach Waters” means any waters ofthe Lake Michigan Basin that
during the recreational season ofMay through October, are heavily used for bathing,
swimming, surfing or other similar water contact activities and may have a life guard or
bathhouse facilities.
These waters have public parking or other public
facilities for beach
access.
•
This definition is needed to describe the recreational season and
to establish what
is a “designated bathing beach”.
Section 302.505
Fecal
Coliform Bacteria
5
Bacteria standards apply during the months ofMay through October:
a)
Based on
a minimum of five
samples taken over not more than a 30-day period,
fecal
coliform (STORET
Number
31616)
must not
exceed
a
geometric mean of
20
per
100
mlL
in
the
Open
Waters
of Lake
Michigan
as
defined
in
Section
302.501.
The remaining waters of the
Lake Michigan Basin
must
not
exceed
a
geometric
mean
of 200
per
100
ml,
nor
shall
more
than
10
of the
samples
during any 30 day period exceed 400 per
100 mlL;
and
~j
Based
on
a
minimum
of
five
samples
taken
over
not
more
than
a
thirty
day
period,
Escherichia coli
(E.
coli) must not exceed
a geometric mean of 126
cells
per
100
mL or
a single
sample maximum
of 235
cells per
100
mL
in
the
Open
Waters
of Lake
Michigan and
in
all
Designated
Bathing
Beach
Waters of the
Lake Michigan
Basin.
In other waters
of the Lake Michigan Basin,
a minimum
of five
samples taken over
not
more than
a thirty
day
period may not
exceed
a
geometric mean ofE. coli of 126 cells per 100 ml or a single sample maximum of
298
cells per 100 mL.
This subsection imposes an E. coli standard in addition to
the fecal coliform
standard in the Lake Michigan Basin.
The E. coli standard ofa geometric mean of 126
cells per 100 mL
and single sample maximum of235 cells per 100 mL must be
met in the
open waters ofLake Michigan and in
all Designated Bathing Beach Waters ofthe Lake
Michigan Basin.
The single sample maximum of235
cells per 100 mL was chosen to
recognize the fact that Open Waters and
Designated Bathing Beaches should be afforded
the highest level ofprotection based on the frequency ofuse.
The single sample
maximum of298 cells per lOOmL was chosen to recognize that other waters of Lake
Michigan need to be protected,
but do not need to be protected to the same extent ofmore
frequently used waters.
Also, the reference to a STORET number in the existing rule is
deleted because U.S.
EPA no longer maintains the former, system ofparameter codes to
identify the specific substance regulated.
Illinois
EPA is proposing to
make four additions to the Water Use Designations
and Site Specific Water Quality Standards.
Illinois EPA is proposing to add an E. coli
6
standard to the existing fecal coliform
standard for Illinois’ portion ofthe Mississippi
River.
Proposed
changes
to
35
Ill.
Adm.
Code
Part
303
are
presented
and
explained
below.
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE
C:
WATER POLLUTION
CHAPTER I:
POLLUTION CONTROL BOARD
PART 303
WATER USE DESIGNATIONS AND SITE SPECIFIC
WATER QUALITY
STANDARDS
SUBPART C:
SPECIFIC USE DESIGNATIONS AND SITE SPECIFIC WATER
QULITY STANDARDS
Section 303.334
Mississippi River North
E. coli
In addition to the standards of Section 302.209, the main stem Mississippi River from the
Wisconsin border to the Rock River shall meet the following E.
coli standard.
During the
months May through October, based
on
a minimum offive samples taken over not
more
than a thirty day period,
Escherichia coli
(E.
coli) must
not
exceed
a
geometric mean of
126 cells per 100
mL or a single sample maximum of298
cells per 100 mL.
Section
303.344
Mississippi River North
Central E. coli
In addition to the standards of Section 302.209, the main stem Mississippi River from
the
Rock River to the Illinois River shall meet the following E.
coli standard.
During the
months May through October, based on a minimum of five samplestaken over not more
than a thirty day period,
Escherichia coli
(E. coli) must notexceed a geometric mean of
126 cells per
100 mL or a single sample maximum of298
cells per 100 mL.
Section 303.354
Mississippi River South
Central E. coli
In addition to the standards ofSection
302.209, the main stem Mississippi River from the
Illinois River to the Kaskaskia River shall meet the following E. coli
standard.
During
the months May through October, based on
a minimum of five samples taken over not
more than a thirty day period,
Escherichia coli
(B.
coli) must not exceed a geometric
mean of 126 cells per 100 mL or a single sample maximum of298 cells per
100 mL.
Section 303.364
Mississippi River South E. coli
-
In addition
to the standards of Section
3 02.209, the main stem Mississippi River from the
Kaskaskia River to the Ohio River shall meet the following E.
coli standard.
During the
7
months May through October, based on a minimum offive samples taken over not more
than a thirty day period,
Escherichia colt
(E. coli) must
not exceed
a geometric mean of
126 cells per
100 mL or a single sample maximum of298 cells per
100 mL.
These four sections are added to impose additional bacteria requirements
applicable to the Mississippi River.
These sections impose an
B.
coli standard for the
Mississippi River in addition to the fecal
coliform standard that must be met in
all
General Use Waters.
The
E. coli
standard of a geometric mean of 126
cells per 100 mL
and a single sample maximum of298 cells per
100 mL must be met in the Mississippi
River.
The single sample maximum corresponds to Moderate Full Body Contact
Recreation degree ofswimming use.
The single sample maximum of298
cells per
100
mLwas chosen since the Mississippi River does not have the frequency ofuse as intense
as a Designated Beach Area.
Other Mississippi River States already have orwill be
expected to adopt similar standards for their portion ofthe river.
B.
Facts in Support.
Basis for Bacteria Standards.
In 1986; U.S. EPA published Ambient Water Quality Criteria for Bacteria-1986.
This
document contains U.S. EPA’s current recommended water quality criteria to
protect individuals
from gastrointestinal illness
in recreational waters.
The main route of
exposure to illness-causing organisms in recreational waters is through accidental
ingestion offecally contaminated water while engaging in activities that could be
expected to result in
ingestion or immersion in water.
U.S.
EPA conducted
epidemiological studies and evaluated the use of several organisms as indicators,
•
including fecal coliform, E. coli
and enterococci.
U.S. EPA recommended the use of.
E.coli
for fresh recreational waters because levels ofthese organisms were more accurate
8
predictors of acute gastrointestinal illness levels than levels offecal coliform.
In U.S.
EPA’s epidemiological studies, E-coli exhibited the strongest correlation to
swimming-
associated
gastroenteritis in fresh waters.
According to U.S. EPA,
fecal coliform bacteria
is sometimes detected where fecal contamination is absent, possibly resulting in
inaccurate assessments ofrecreational safety.
C.
Technical Feasibility
and Economic Justification
1.
Technical Feasibility
Illinois EPA does not anticipate new technology requirements by this rulemaking.
2.
Economic
Justification
As no additional regulatory actions ortreatment will be established by this
proposal, it will not have a negative impact on
any existing sources.
•
D.
Affected
Facilities
and
Outreach
Facilities dischargingpollutants could be indirectly affected by this proposed rule
since water quality standards are used in determining water quality based effluent limits
in National Pollutant Discharge Elimination System (NPDES) permits.
Beach managers and businesses in beach areas also may be indirectly affected by
this proposed rule since water quality standards
are used in making decisions regarding
beach advisories and closures.
However, since the Illinois Department of Public Health
already uses the E. coli standard to regulate designated bathing beaches, no actual new
••
impact is
likely.
•
On September
14, 2004, Illinois EPA sent copies ofthe drafi regulatory proposal
to:
-
Illinois Rural Water Association
Illinois-American Water Company
9
MWRDGC
Illinois Municipal
League
IERG
Environmental
Law and Policy
Sierra Club,
Illinois Chapter
Prairie Rivers Network
Illinois Department ofNatural Resources
Illinois Association ofWastewater Agencies
U.S. Fish and
Wildlife
U.S. EPA, Region V
Lake Michigan Federation
On September 21, 2004, the Illinois EPA sent copies ofthe draft regulatory
proposal to the Illinois Department ofPublic Health.
III.
Synopsis
ofTestimony
Scott Twait
is from the Water Quality Standards Unit in the Bureau ofWater.
Mr. Twait’s testimony will address the basis for proposing these changes to the Lake
Michigan Basin and Mississippi River.
Mr. Twait will explain the geometric mean and
single sample maximum proposed by Illinois EPA.
Illinois EPA has requested that
a representative from U.S.
EPA be present at the
hearing before the Illinois Pollution Control Board to answer technical questions about
Illinois EPA’s proposal.
IV.
Supporting Documents
Exhibit A:
U.S. EPA,
1986,
Ambient Water Quality Criteria for Bacteria-
19986.
U.S. Environmental Protection Agency.
EPA-440/5-84-
002.
Exhibit B:
Beaches and Environmental Assessment
and Coastal Heath Act
Exhibit C:
40 CFR Part
131
Water Quality Standards for Coastal and Great’
Lakes Recreation Water; Proposed Rule
Exhibit D:
Letter ofMarch 23, 2004 from Illinois EPA to Ms. JoLyrm of
USEPA
10
Exhibit E:
Letter ofJune 25, 2004 from U.S.
EPA to Ozark
Chapter of the
Sierra Club
Exhibit F:
November 2003 Draft Implementation Guidance for Ambient
Water Quality Criteria for Bacteria
Respectfully submitted,
ILLINQ!S EN~IRONMENTAL
St~’nie N. Diers
A~ssstant Counsel
ision of Legal Counsel
Date:
November
5,
2004
1021 N.
E.
Grand Avenue East
P.O. Box
19276
Springfield, Illinois 62794-9276
217-782-5544
11
