RECEIVED
CLERK’S OFFJCr
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUL
112002
STATE OF IWNOIS
IN
THE MATTER OF:
Poliutior, Control Board
WATER QUALITY AMENDMENTS TO
)
35111.
Adni.
Code 302.208(e)-(g),
302.504(a),
)
R02-11
302.575(d), 303.444, 309.141(h);
and
)
(Rulemaking
-
Water)
PROPOSED
35
Ill. Adm.
Code 301 .267,
)
301.313, 301.413,
304.120, and 309.157
)
NOTICE OF FILING
Dorothy Gunn, Clerk
Marie E. Tipsord
Pollution Control Board
Illinois Pollution
Control Board
100 West Randolph Street
James
R. Thompson Center
Suite 11-500
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
Chicago, Illinois 60601
Mathew Dunn
Legal Service
Illinois Attorney General’s Office
Illinois Department ofNatural Resources
Environmental Control Division
524 South Second Street
James R. Thompson Center
Springfield,
Illinois 62701-1787
100 West Randolph Street
Chicago, Illinois 60601
Attached Service List
PLEASE
TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe Pollution Control
Board the illinois Environmental Protection Agency’s
COMMENTS
ANDWRITTEN TESTIMONY
OF ROBERT MOSHER,
a copy of which is herewith served upon you.
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
By:___________________________
Sanjay K Sofat
Assistant Counsel
Division ofLegal
Counsel
Dated:
July
10, 2002
Illinois Environmental Protection
Agency
1021
North Grand Avenue East
Springfield, Illinois 62794-9276
(217) 782-5544
THIS
FILING PRINTED
ON RECYCLED
PAPER
IN THE MATTER OF:
WATER QUALITY AMENDMENTS TO
)
35
Iii. Adm. Code 302.208(e)-(g), 302.504(a),
)
R02-1
1
302.575(d), 303.444, 309.141(h); and
)
(Rulemaking
-
Water)
PROPOSED
35
Ill. Adm.
Code 301.267,
)
301.313, 301.413, 304.120,
and 309.157
)
AGENCY’S COMEMNTS
THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY (the “Agency”)
respectfully submits its comments to the First Notice
in the Illinois Pollution Control Board’s (the
“Board”) R02-1
1
rulemaking proceeding.
The Agency appreciates the opportunity to participate in
this important rulemaking proceeding.
The Agency is thankful to all the parties and participants for
their input.
The Board has addressed
in the First Notice for R02- it,
many of the issues raised during this
proceeding by various stakeholders.
The Agency strongly supports the Board’s findings
on all ofthe
issues except, the finding that the proposed cyanide standard
is not justified.
The Board raised
several issues
in support of this
finding.
Understanding the importance of these issues, the Agency
considers the July 25, 2002 hearing as an opportunity to re-address the issues.
In support, the
Agency is filing Robert Mosher’s testimony that provides extensive discussionnn~the:rensoning
behind the Agency’s proposed cyanide standard.
The Agency believes this
testimony would help to
clarif5r some of the issues raised by the Board and other stakeholders.
BEFORE
THE ILLINOIS POLLUTION
CONTROL BOAM~CEIVED
FRK’S
flrr!rr
JUL ii,
~OQ2
STATE OF IWNOIS
Pollution
Control Board
2
TESTIMONY OF ROBERT MOSHER
QUALIFICATIONS/INTRODUCTION
My name
is Robert Mosher and lam the Manager ofthe Water Quality Standards Section
within the Division of Water Pollution Control at the Illinois
Environmental Protection Agency
(“Illinois EPA” or“Agency”).
I have been with the Illinois
EPA in excess of 16 years.
Almost all
of that time
has been spent in my current capacity where my primary responsibilityis the
development and implementation ofwater quality standards.
I have a Masters Degree in Zoology
from Eastern Illinois University where I specialized in stream ecology.
My testimony will cover a
detailed discussion on the reasoning behind the Agency’s proposed cyanide
standard and response to
the issues raised in
the Board’s June 20, 2002, opinion and order.
THE AGENCY”S REASONING BEHIND CYANIDE STANDARD
The Agency regrets the Board’s decision declining to change General Use water quality
standards for cyanide.
A simple but important mistake on our part in t988
(R88-21, “Toxics
Control” rulemaking) caused an improperly stringent standard to be adopted at that time.
Our
explanation for the correction of that standard at recent hearing may have overly stressed that point
and may not have provided enough necessary background for the Board
and others to tnderstand
and appreciate the need for the change in the cyanide
standard.
We possibly took for granted that
the environmental groups and the Illinois Department ofNatural Resources
(IDNR), two groups that
commented unfavorably on our proposal, were aware ofthe complexity ofcyanide standards
and a
recent site-specific regulation for cyanide that essentially parallels the Agency’s proposed changes.
To correct this,
we offer the following more thorough history and explanation ofthe General Use
cyanide standard in
illinois.
3
First, we need to explain some unique aspects ofcyanide and how these influence the water
quality standard that appears in the regulations.
In the laboratory, when cyanide is dissolved in
water for purposes ofconducting
a toxicity test on an aquatic organism, a pure cyanide salt such as
potassium cyanide, and relatively pure laboratory water are utilized.
The resulting form ofcyanide
present in the test solution is largely free cyanide.
Free cyanide is very toxic to test organisms
as
evidenced by the low reported toxic concentrations.
This is because free cyanide is the most
available form to organisms; the cyanide is not bound to
other substances and therebyrestricted
from entry into the organism.
The presence ofother substances in the water, especially iron, other
metals and organic substances will cause the sorption and complexation offree tyanide.
A good
explanation of the speciation ofcyanide is given in
the first few pages ofthe National Criteria
Document, provided in the Agency’s original proposal as Exhibit Y.
Water from lakes and streams
will undoubtedly have many ofthe substances with which free cyanide will bind to in
abundance.
Environmental samples that contain cyanide will have other less toxic or nontoxic
species of
cyanide present in addition to the potential for free cyanide.
Given that the toxicity studies forming the basis ofthe national criteria and ourproposed
state standards are performed with free cyanide, it would be logical to adopt the water quality
standards as this defined chemical species.
Unfortunately, the analytical measurement of free
cyanide is not practicable.
No approved USEPA test method exists for free cyanide.
At the other
end ofthe spectrum is an
analytical test for total cyanide.
This test uses a strong
acid to dissociate
cyanide from other molecules
that it is bound
to.
Many ofthese cyanide species are stable in the
natural environment and pose no threat to aquatic life, but when subjected to the acid treatment for
the analytical test they are solublized
and measured.
The National Criteria Document warns that the
“criteria may be overlyprotective when based on total cyanide”.
In other words,
a large degree of
conservatism, i.e., additional protection, is
introduced when total cyanide measurements from the
4
environment are compared to water quality criteria based on free cyanide exposure ofaquatic life in
the
laboratory.
We recognized this problem in t988 when the Agency recommended that a cyanide
species (as defined by method of analysis) other than total cyanide
should be used to regulate this
substance.
Weak acid dissociable cyanide
(Standard Methods 4500 CN
I) is an
analytic method that
uses a weak acid instead ofa stronger acid to solubilize cyanide in an environmental sample.
The
weak acid does not release the more strongly bound forms.
Thus, this analytical method measures
only the more weakly bound forms along with
free cyanide.
The Agency chose this method, as did
other states, to define the standard.
Since we cannot measure the free cyanide that would most
faithfully address the toxicitytests,
we decided that total
cyanide would be much too
conservative
and so weak
acid dissociable cyanide seemed the best possible choice.
However, it is known that
even the weak acid dissociable test will measure bound forms of cyanide that do not resemble the
free cyanide on which the standard is based.
The Agency proposal is therefore automatically more
conservative than the National Criteriabased on the free cyanide toxicity tests.
Dr. Anderson ofIDNIR has offered commentary and several objections
to the Agency’s
proposed cyanide standards that do not seem well founded and to which we disagree.
He refers to
the existing and proposed acute and chronic standards as “weak acidic”.
The Agency is not aware of
such terminology.
One familiar with cyanide
chemistry would refer to
weak acid dissociable
cyanide by its correct name we would think.
Later in his comments, Dr. Anderson seems to refer to
cyanide
as a metal when he says that “Unionids do, however, tend to be more sensitive than fish
species to pollutants generally, and other metals specifically”.
Of course, cyanide is not a metal but
rather a compound ofcarbon and nitrogen.
Dr. Anderson makes two main points in his comments.
First, that the proposed cyanide
standard lacks an adequate margin of safety and second, that the standard is not valid because it was
5
derived from a database lacking information on unionid mussels.
The Agency’s pre-filed and
hearing testimony explained how we conformed to USEPA methodology when deriving the
proposed standards.
Removing non-native
cold-water species is perfectlyvalid using the USEPA
guidance.
We have now explained how the weak acid dissociable cyanide form regulated has added
a degree ofconservatism.
Dr. Anderson’s comments read as though he thinks that toxicity tests
were conducted with the same cyanide species
as defines the standards.
This we believe was a
critical mistake in Dr.
Anderson’s testimony to the Board.
Much ofDr. Anderson’s comment revolves around
cool and cold-water species.
Illinois has
a very clear and distinct division ofwater quality standards for waters that do and do not support
cold-water species.
Lake Michigan standards protect cold water species and General Use standards
do not automatically presume to do so.
The Agency proposal does not change the weak acid
cyanide standard for Lake Michigan.
It is the appropriate standard for that body ofwater.
Cold-
water species such as trout
and salmon are not native to
waters in Illinois otherthairtake Michigan.
Earlier research by the Agency found no references in the early fisheries literature that documents
trout in Illinois streams.
Whatever trout live in Illinois
streams now were put there by IDNR or
others wanting to establish a “put and take” fishery.
Dr. Anderson gives the known instances when
trout are known to
have reproduced in Illinois.
Two instances ofreproduction (Dr. Anderson does
not give testimony as to the survival of the young spawned) in
our state does not prov&that viable
trout populations are normal or expected in Illinois.
If one wanted to make that case, several water
quality standards should be
changed to protect trout and the Agency, instead ofcorrecting a single
case where trout and salmon data were mistakenly included in
a General Use standard, should
instead be
suggesting that this data be factored into all other General Use standards.
This
is a
ridiculous concept and would rein havoc
on water quality management.
The Board has correctly
ruled many times in the past that cold-water standards (those based on data form cold-water species)
6
are not appropriate in General Use waters.
Where trout are stocked and a new water quality issue
arises,
e.g., a new discharger proposes to discharge, the antidegradation standard has been designed
to anticipate and recti~r
any problems posed by unique communities of aquatic organisms including
trout.
Dr. Anderson erred in stating that the cyanide database lacks cool-water species.
At least
one “cool-water” species is present in the acute database,
the yellow perch.
The notion that cold-
water species must be used in standards derivation to protect cool-water species is ludicrous.. The
trout and salmon belong to
a totally different family of fishes with none ofits members tolerating
cool or warm water.
Cool water species mentioned by Dr. Anderson such as the blackchin shiner
and Iowa darter have warm water relatives existing everywhere in Illinois that belong to the
same
genus, let alone family.
Cool-water species therefore resemble warm-water species much more than
they do cold-water species.
Dr. Anderson takes special note ofone ofthe scientific papers cited by the National Criteria
Document, Kimball, et. al.,
1978, which he refers to as a “troubling study”.
He notes ominously that
USEPA “rejected the use of this
data”, but “they clearly felt compelled to cite the study”.
He relates
that the study purportedly shows that bluegills are prevented from spawning by cyanide
concentrations as low
as 5.4 ug/L and apparently thinks that this piece ofinformation should have
been
factored into the standard.
USEPA wisely rejected this databecause the study did not live up
to basic tests of scientific rigor.
When one reads the Kimball paper it is immediately obvious that
the bluegill spawning study lacks defmed concentrations ofexposure
for the threshold oftoxicity.
The study also found that the highest concentration of cyanide tested allowed some bluegill
spawning but that the lowest concentration did not.
Such data does not meet the specifications of
USEPA’s “Guidelines for Deriving Numerical National Water Quality Criteria forthe Protection of
Aquatic Life and Their Uses”.
Such data are always
rejected by USEPA (although each incidence of
7
rejected data is mentioned in the Criteria Document); the study
is indeed “troubling”.
A different
test with bluegill and
cyanide is contained in the same paper and this one was accepted for use in the
National Criteria derivation, providing the most sensitive chronic endpoint for any warm-water
species,
13.57 ug/L.
Our proposed standard of 11
ug/L is within this lower boundary even if we
were proposing to regulate free cyanide.
What Dr. Anderson has apparently failed to
understand,
and which is
all important to the question of margin of safety, is
that we areproposing to continue to
regulate weak acid dissociable cyanide.
Dr. Anderson’s other main point concerning mussel data is equally without merit.
He notes
that no unionid mussel species has been tested for cyanide sensitivity.
He is correct and in
fact,
most substances have not been so
tested.
The toxicity testing ofmussels
is a new and
developing
science.
As explained in this rulemaking and in the ammonia standards rulemaking (R01-19),
controversy exists whether the few existing mussel tests
are legitimate.
There are basic questions of
science to be answered.
USEPA Region
5 management has assured the Agency that mussel data
should not enter the derivation process as a driving factor until the controversies are resolved and
reasonable experts agree that mussel data is legitimate.
We agree with Dr. Anderson that mussels
are important and that theymay even be more sensitive
to some pollutants
than
other organisms.
However, to reject a standard because no
mussel data are available is naïve and unrealistic.
Virtually all existing Board standards were
developed without mussel data.
Again, subscribing to
the logic of Dr. Anderson and
the environmental
groups would force the Board to abandon all these
existing standards with nothing available to
replace them with.
As stated at hearing, the IEPA will
monitor the state of mussel toxicity testing and when methodologies are standardized
for these tests
and when studies using standardized
methods are published, we will re-evaluate existing
standards.
This
approach is one of the basic tenants of the triennial review ofstandards dictated by the Clean
Water Act.
8
The Agency would like
to conclude its supplemental justification for its original proposed
cyanide standards with the following reasons in
support ofBoard
adoption.
These were probably at
least hinted at during the hearings or in pre-filed testimony, but regardless, a firm statement for each
reason is certainly necessary at this time.
1.
The recalculation of the cyanide standards by eliminating some data
was
done under the
accepted procedures found in
the USEPA’s “Guidelines for Deriving Numerical National
Water Quality Criteria for the Protection of Aquatic Life and Their Uses”.
It is a legitimate
and common procedure for states to delete cold-water species
from the database and
derive
warm-waterprotective standards using this universally employed method.
Other states have
conducted nearly identical derivations.
We cite the free
cyanide standard for Ohio,
applied
to the warm-water streams of that state.
The acute Ohio standard is 46 ug/L and the chronic
is
12 ugIL.
2.
The Board adopted a site-specific regulation
at 35
IAC 303.444
that parallels the Agency’s
proposal to change the General Use standard.
The Metropolitan Water Reclamation District
of Greater Chicago (MWRDGC)
was the proponent ofthis site-specific standard.
This
standard covers
four General Use waters, Salt Creek, Higgins Creek, the West Branch
DuPage River and the DesPlaines River.
These
rivers constitute a significant
part
ofthe
drainage ofNortheastern Illinois.
The reasons that MWRDGC gave for the change were
two-fold.
First, removal ofthe cold-water species data allows a warm-water standard
protective ofthe species found in the listed
waters.
Second, MWIRDGC found that
analytical problems exist with the weak acid dissociable cyanide test at levels below tO ug/L.
Interferences were present that resulted in false detections ofweak acid dissociable
cyanide.
Because ofthe analyticalproblems, MWRDGC was not always able to show compliance
with the 5.2 ug/L chronic standard when it was sure that no significant amount of cyanide
9
was present.
These difficulties exist everywhere else in the state as well and constitute one
motive behind the Agency’s proposal to update the standard.
While we have testified that
there are few if any dischargers of cyanide that would realize relief from the stwrdarftchange
because they cannot meet the existing standards, there are many dischargers that have trouble
measuring weak acid dissociable cyanide down to
5.2 ug/L.
The usually reported laboratory
detection limit is
tO ugIL.
Laboratories have indicated that they are not comfortable in
reporting down to
the presently necessary
5
ug/L.
We believe that this is
due to the same
reasons that MWRDGC received relief in
1996.
At the time ofthat site-specific rulemaking,
the Agency stated that it believed that the requested site-specific relief was appropriate for
the remainder ofGeneral Use waters.
Unfortunately, it has taken us these many years to
propose such a statewide
change.
What the Board found appropriate in
303.444 should also
be found appropriate for the other General Use waters.
We note that the reason our proposal
raises the chronic standard from
10
to
11
ug/L stems from additional toxicity studies being
found since 1996.
3.
We believe that the changes in General Use water quality standards are federallyapprovable.
We expect USEPA RegionS
to approve these standards since they have approvecLthe Ohio
standards, which are less stringent than ours.
4.
The proposed weak acid dissociable cyanide standards fulfill the triennial review of
standards requirement ofthe Clean Water Act.
We know ofno provision in the Act that
prohibits a state from finding that a given standard should be raised.
While generally, new
data, or re-evaluation ofpreviously known data, result in more stringent standards, this is not.
always the case and it must not be perceived that this outcome is expected from
such a
review.
(Another case in point would be
the current ammonia rulemaking.
National criteria
for ammonia are in many cases, depending on pH and temperature conditions, less stringent
10
than the existing Board standard.
Toxicity data for cold-water species was removed from the
database to create warm-water ammonia criteriain the National Criteria Document and that
this concept is being applied to General Use waters in Illinois).
The Agency took the valid
data regarding the effects of cyanide on aquatic life and generated a warm-water standard.
It
is totally appropriate to heed what the data tell
us and raise the standard, especially in light of
the problems with interferences when attempts are made to assess attainmentwiththe lower
standard.
What matters most is that water quality standards
are scientifically valid, not
whetherthey become more or less stringent.
The Agency would
like to
express its appreciation to the Board
forthe opportunity to participate in
this proceeding.
As
set forth more full above, the Agency urges the Board to adopt the Agency’s
proposal including proposed cyanide standard in the light of Bob Mosher’s
supprlementtestiinony.
Respectfully Submitted
ILLINOIS ENVIRONMENTALPROTECTION AGENCY
By:
SanjayKSofat
Assistant Counsel
Division of Legal Counsel
DATED:
July
10, 2002
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box
19276
Springfield,
Illinois 62794-9276
(217) 782-5544
11
)
STATE OF ILLINOIS
)
)
SS
COUNTY OF SANGAMON
)
)
PROOF OF SERVICE
I, the undersigned, on oath state that I have served the attached AGENCY’S COMMENTS
AND ROBERT MOSHER’S TESTIMONY upon the person to whom it is directed, by placing a
copy in an envelope addressed
to:
Dorothy Gumi,
Clerk
Marie E. Tipsord
Pollution Control
Board
Illinois Pollution Control Board
100 West Randolph Street
James R. Thompson Center
Suite 11-500
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
Chicago, Illinois 60601
(OVERNIGHT MAIL)
(OVERNIGHT MAIL)
Mathew Dunn
Legal Service
Illinois Attorney General’s Office
Illinois Department ofNatural Resources
Environmental Control Division
524
South Second
Street
James R. Thompson Center
Springfield, Illinois 62701-1787
100
West Randolph Street
Chicago, Illinois
60601
(FIRST
CLASS MAIL)
(FIRST
CLASS MAIL)
Attached Service List
(FIRST
CLASS MAIL)
and mailing it from Springfield, Illinois on July 10, 2002, with sufficient postage affixed as
indicated above.
~4~r4~fl~SWi
~
“
ni~nciAL
SEAL”
~
I
9&-~?~
S-0t~
S
My
omrnisslofl
E~ires
11/1602
SUBSCRIBED
AND
SWORN TO BEFORE ME
this day ofJuly
10, 2002.
S4~phs~
Q4?e~yJ
Notary Eublic
THIS
FILING PRINTED
ON RECYCLED PAPER
12
R02-1l
Rulemaking
Notification List
July
10,
2002
Mike Callahan
Katherine Hodge
Bloomington Normal Water Reclamation District
Hodge, Dwyer and Zeman
Post Office Box 3307
3150 Roland Avenue, Post Office Box
5776
Bloomington, Illinois
61702-3307
Springfield, Illinois
62705-5776
Larry Cox
Margaret Howard
Downer’s Grove Sanitary District
Hedinger and Howard
2710
Curtiss
Street
1225
South
Sixth Street
Downer’s Grove, Illinois
60515
Springfield, Illinois
62703
DennisDaffield
Robert Lawley
Department ofPublic Works
City
of Joliet
Chief Legal Counsel
921
East Washington Street
Illinois Department of Natural Resources
Joliet, Illinois
60433
524
South Second Street
Springfield,
Illinois
62701
Albert Ettinger
Environmental Law and Policy Center
Robert Messina
35 East Wacker Drive, Suite 1300
Illinois
Enviommental Regulatory Group
Chicago, Illinois
60601-2110
215
East Adams Street
Springfield, Illinois
62701
Lisa Frede
Chemical Industry Council
Tom Muth
9801
West Higgins Road,
Suite 515
Fox Metro Walter Reclamation District
Rosemont, Illinois
60018
682
State Route 31
Oswego, Illinois
60543
James
T.
Harrington
Ross & Hardies
Irwin
Polls
150 North Michigan, Suite 2500
Metropolitan Water Reclamation District of Chicago
Chicago,
Jllinois
60601
600 lWest Pershing
Road
Cicero, Illinois
60804-4112
Ron Hill
Metropolitan Water Reclamation District ofChicago
6001 West Pershing Road
Cicero, Illinois
60804-4112
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