9982NOP.PDF

ILLINOIS POLLUTION CONTROL BOARD

June 17, 1999

IN THE MATTER OF:

PERMITTING PROCEDURES FOR THE

LAKE MICHIGAN BASIN: 35 ILL. ADM.

CODE 301, 302, AND 309.141

)

R99-8

(Rulemaking - Water)

Proposed Rule. Second Notice.

OPINION AND ORDER OF THE BOARD (by G.T. Girard, C.A. Manning and N.J. Melas):

On July 28, 1998, the Illinois Environmental Protection Agency (Agency) filed a

rulemaking proposal which amends the Board’s water regulations concerning permitting

procedures for the Lake Michigan Basin. The proposed rules amend portions of the Board’s

rules dealing with the issuance of National Pollutant Discharge Elimination System (NPDES)

permits and are necessary to implement the federal Great Lakes Initiative (GLI) which was

previously adopted by the Board. See, In the Matter of: Conforming Amendments for the

Great Lakes Initiative: 35 Ill. Adm. Code 302.101; 302.105; 302.Subpart E; 303.443 and

304.222, (December 18, 1997) R97-25. The proposal was filed pursuant to Section 27 of the

Environmental Protection Act (Act) (415 ILCS 5/27 (1996)) and was accompanied by a

statement of reasons (Reasons). The Board accepted this proposal on August 6, 1998. On

March 4, 1999, the Board sent the proposal to first notice pursuant to the Illinois

Administrative Procedures Act (5 ILCS 100\1-1

et seq

.) (IAPA).

Two hearings have been held in this matter before Hearing Officer Marie Tipsord. The

first hearing was held on October 5, 1998, in Chicago, Illinois (Tr.1). At that hearing, the

Agency submitted testimony in support of the proposal. A second hearing was held on

December 8, 1998, in Springfield, Illinois (Tr.2). The Agency presented additional testimony

and testimony was offered by Mr. William Seith on behalf of the Illinois Attorney General’s

Office (Attorney General). A deadline of January 14, 1999, was set for posthearing comments

to be submitted. The Board has received only one posthearing comment. During the first

notice period the Board received an additional three comments.

Today, the Board sends this proposal to second notice. Based on the record before the

Board, the Board finds that proceeding to second notice is warranted. In the sections that

follow, the Board will briefly discuss the procedural history, then the proposed rule, followed

by the public comments.

PROCEDURAL HISTORY

The genesis of this rulemaking was an agreement between the Attorney General and the

Agency to present this rulemaking proposal to the Board. Tr.2 at 28. The Attorney General

wanted to ensure enforceability of the Great Lakes Initiative (GLI) water regulations and

enforceability of the State of Illinois NPDES program. Tr.2 at 30-31.

Prior to filing this proposal with the Board, the Agency promulgated regulations at 35

Ill. Adm. Code 352 to implement procedures necessary for the issuance of NPDES permits in

the Lake Michigan Basin. Reasons at 3. The Part 352 regulations were intended by the

Agency to implement the Board’s GLI regulations promulgated in R97-25. During the

Agency’s Part 352 rulemaking the Attorney General asserted that certain portions of the

Agency’s Part 352 rules were not authorized by the Board and moreover were more properly

within the statutory authority of the Board to promulgate. Upon review, the Joint Committee

on Administrative Rules (JCAR) of the Illinois Legislature recommended that the Agency and

the Attorney General “work together to more clearly determine the relative jurisdiction of the”

Agency.

. The Agency submitted this proposal (R99-8) to the Board in response to the

issues raised by the Attorney General.

The Agency stated that the proposal was submitted to determine whether the Agency’s

regulations adopted at 35 Ill. Adm. Code 352 are consistent with the Board’s regulations and,

if they are not consistent, to determine which regulations should be amended.

. The

Agency also submitted these amendments to “determine the limits” of the Agency’s and the

Board’s “rulemaking authority.”

On December 17, 1998, the Board denied a motion to dismiss R99-8 filed by the

Illinois Environmental Regulatory Group (IERG) and supported by the Chemical Industry

Council of Illinois (CICI) (PC 1). In that order, the Board found that the Board does not need

to decide the Agency’s authority for rulemaking in this proceeding. Section 13 of the Act (415

ILCS 5/13 (1996)) clearly grants the Board the authority to adopt rules. The Agency’s

rulemaking proposal contains proposed amendments to the Board’s water rules that will clarify

implementation of the federally required Great Lakes Initiative. The Board further found that

the Board can adopt or not adopt the proposed rules on the merits based on the Board’s own

authority to adopt the rules proposed by the Agency.

In denying IERG’s motion to dismiss, the Board considered testimony from the

December 8, 1998 hearing. At that hearing, Seith of the Attorney General’s Office testified

that the Board need not “deal with” the issue of the Agency’s authority to promulgate

Regulations because “this Board clearly does have the authority to promulgate these

regulations.” Tr.2 at 28. Based on the Attorney General’s experience with enforcement

actions in similar cases, Seith stated that the Board should adopt the proposed rules to ensure

enforceability of the GLI program and the limitations written into permits for individual

dischargers. Tr. 2 at 31-33. The Board also relied upon a decision by the Illinois Supreme

Court which discussed the rulemaking roles of the Board and the Agency in the context of

water regulations (Granite City Division of National Steel Company v. Illinois Pollution

Control Board, 155 Ill. 2d 149, 613 N.E.2d 719 (1993)).

PROPOSED RULE

The proposed rule would adopt certain permit requirements necessary to implement the

federal GLI. The states are required to adopt regulations to conform with the federal guidance

for water quality standards in the Great Lakes pursuant to the Clean Water Act. 33 U.S.C.

§1268(c)(2)(C). The federal guidance was published at 60 Fed. Reg. 15366 on March 23,

1995. In 1997, the Agency proposed rules to the Board which implement the federal guidance

and the Board adopted these rules in R97-25. See In the Matter of: Conforming Amendments

for the Great Lakes Initiative: 35 Ill. Adm. Code 302.101; 302.105; 302.Subpart E; 303.443

and 304.222 (December 18, 1997), R97-25. The requirements in this proposed rule are in

addition to those adopted by the Board in R97-25 and should be read in conjunction with that

rulemaking. In the Matter of: Conforming Amendments for the Great Lakes Initiative: 35

Ill. Adm. Code 302.101; 302.105; 302.Subpart E; 303.443 and 304.222 (December 18,

1997), R97-25.

The Board’s rules are being amended by updating the citation to the

Code of Federal

Regulations

at Section 301.105, adding specialized definitions that are contained in the

Agency’s rule at Section 352.104 and adding implementation procedures under Section

309.141(h). The amendments to the incorporations by reference under Section 301.105(c)

update the citation to 40 C.F.R. 136 to reflect the 1996 edition of the federal rules, which

contain the approved test methods, and add a new incorporation by reference to a test

procedure specified in 40 C.F.R. 132.

The definitions proposed today at 35 Ill. Adm. Code 301 are, for the most part,

derived from the federal GLI regulations at 40 C.F.R. 132.2. These include definitions of the

terms “bioaccumulative chemicals of concern,” “method detection level,” “minimum level,”

“quantification level,” “total maximum daily load,” “wasteload allocation” and “wet weather

point source.” In addition, the order includes definitions of certain terms used in the

implementation procedures.

The procedures for the implementation of the federal GLI are set forth under a new

subsection at 35 Ill. Adm. Code 309.141(h). These procedures are intended to be used by the

Agency when issuing NPDES permits to Lake Michigan Basin Dischargers. Section

309.141(h)(1) provides that the Total Maximum Daily Load (TMDL) or the Waste Load

Allocations (WLA) will be set through either the Lake Michigan Lakewide Management Plan

(LaMP) or the remedial action plan (RAP) for an Area of Concern. Reasons at 5. This

provision is consistent with the federal GLI procedure concerning TMDL and WLA at 40

C.F.R. 132 Appendix F, Procedure 3. If neither the LaMP or a RAP has been completed the

effluent limits shall be established pursuant to the remaining sections of Section 309.141.

If it is expected that these limits will be superseded upon completion of the TMDL or WLA

process, these limits shall be set as interim and the permit shall include a reopener clause,

which would be triggered by the completion of TMDL or WLA.

Section 309.141(h)(2) specifies an acceptable risk level of one in 100,000 for

establishing Tier I criteria and Tier II values for combination of substances exhibiting

carcinogenic or other nonthreshold toxic mechanism.

The proposed risk level of 1 in 100,000, which is recommended by the federal GLI

guidelines, was adopted by the Board in R97-25 (In the Matter of: Conforming Amendments

for the Great Lakes Initiative: 35 Ill. Adm. Code 302.101; 302.105; 302.Subpart E; 303.443

and 304.222 (December 18, 1997), R97-25); 35 Ill. Adm. Code 302.590. In addition,

Sections 309.141(h)(2)(A) and (h)(2)(B) set forth specific requirements for the consideration of

additive effects of two classes of substances known as the chlorinated dibenzo-p-dioxins

(CDD) and chlorinated dibenzofurans (CDF). Reasons at 5. These procedures are derived

from the federal GLI at 40 C.F.R. 132 Appendix F, Procedure 4. In both CDD and CDF, the

arrangement of the atoms in the molecule can vary, creating congeners which have different

levels of toxic effects from molecule to molecule.

. The proposed procedure assigns

specific conversion factors to the congeners that allows a permit writer to calculate the additive

effect on a consistent basis. The proposed procedure also requires the Agency to consider the

cumulative risk from a combination of carcinogenic or other nonthreshold toxic substances

under specified conditions.

Section 309.141(h)(3) sets forth the conversion factors to be used in translating between

water quality standards, criteria or values for metals expressed in either the dissolved form or

as total amount recoverable. Reasons at 6. In this regard, while many modern water quality

standards are expressed in the dissolved form,

historical water quality and effluent data has

been reported as total amount recoverable. Reasons at 6. The proposed conversion factors,

which are based on the review of scientific literature, allow for the consistent translation of

total recoverable metal to dissolved form. Further, the proposed provision also allows for the

use of alternate site-specific conversion factor.

Section 309.141(h)(4) together with the procedures specified in 35 Ill. Adm. Code

352.Subpart D provide guidance to the Agency in choosing which pollutants require water

quality based effluent limits (WQBEL) and, if required, at what level in NPDES permits.

Reasons at 6. Subsection (h)(4)(A) specifies the first step in the process which involves the

estimation of projected effluent quality (PEQ) of a parameter in the discharge of a facility,

taking into account the chronic or acute exposure periods of the standard, criteria or value.

The proposed provision requires the PEQ to be based on representative facility specific data

that reflect the upper bound of a 95% confidence level for the 95th percentile value.

Subsection (h)(4)(B) provides a method of calculating the PEQ when less than ten facility

specific data points are available. The PEQ or the alternate PEQ must be compared with water

quality standard, criteria, or value to determine whether to impose no limit, consider dilution

and mixing, or require additional monitoring. Subsection (h)(4)(C) requires the Agency to use

monthly average effluent data to evaluate the need for WQBELs to meet chronic standards and

daily effluent data to evaluate the need for effluent limits to meet acute standards. Reasons at

6-7. Subsection (h)(4)(D) allows alternative scientifically defensible statistical methods to

calculate PEQ. Reasons at 7.

If PEQ for a parameter is greater than the water quality standard, criteria or value for

that parameter, the next step involves the consideration of dilution and mixing in accordance

with Section 309.141(h)(5), which allows for such consideration based on the degree of

treatment. Mixing zone and dilution may be considered only if the discharger is providing

treatment consistent with the best degree of treatment under 35 Ill. Adm. Code 304.102(a).

Reasons at 7.

The standards are expressed in dissolved form since that form was used in developing the

toxicological information as being more available for absorption by aquatic life.

The next step in the process involves the comparison of PEQ of a parameter with the

projected effluent limitation (PEL) for that parameter to determine the need for specifying a

WQBEL in the NPDES permit. Section 309.141(h)(6) sets forth a simple mass balance

formula for calculating PEL giving consideration to the water quality standard, relative

flowrates of effluent and receiving water, dilution allowance and the background concentration

of the parameter. Reasons at 7.

Section 309.141(h)(7) sets forth the conditions under which a WQBEL or certain

monitoring requirements must be included in the NPDES permit based upon a comparison of

PEQ and PEL. Reasons at 7.

The Board is also proposing amendments to 35 Ill. Adm. Code 302. The amendments

are proposed because at the close of the rulemaking in R97-25 (In the Matter of: Conforming

Amendments for the Great Lakes Initiative: 35 Ill. Adm. Code 302.101; 302.105;

302.Subpart E; 303.443 and 304.222 (December 18, 1997), R97-25), JCAR submitted a list of

typographical errors which occurred in the text of Part 302. The Board proposes only

typographical corrections and nonsubstantive amendments to Part 302.

PUBLIC COMMENTS

The Board has received a total of four public comments. The first comment (PC 1)

was filed by the CICI and was filed in support of IERG’s motion to dismiss and was addressed

above. See Procedural History herein. The other comments included comments by the Naval

Training Center Great Lakes (Navy) (PC 2), IERG (PC 3) and the Illinois Steel Group (PC 4).

In the Sections below, the Board will summarize and discuss the issues raised in each public

comment.

Naval Training Center Great Lakes

In PC 2, Navy argues that the proposed rule does not conform with the federal GLI in

four ways. First, Navy maintains that the rule improperly permits the use of mixing zones and

dilutions. Second, Navy states that the rules concerning analysis and detection below the

quantification level fail to conform to GLI requirements. Third, Navy argues that the rule

improperly excludes wet weather discharges. Fourth, Navy posits that the method for

measurement of representative “Background” in establishing TMDLs does not conform to

GLI. The issues raised by Navy are discussed below in detail and changes to the Board’s

proposed rules in response to Navy’s comments are presented.

Board Discussion

Mixing Zones. Navy argues that the proposed rules improperly permit mixing zones

and dilution

bioaccumulative chemicals of concern (BCCs)

without qualification. Navy asserts

that the guidance for the GLI rule “explicitly says that rules implementing GLI” must prohibit

creation of new mixing zones and require phase out of any existing zones by March 23, 2007.

PC 2 at 1. Navy argues that the failure of the rules “to so direct” makes the rules

noncompliant with GLI and the Board’s own rules at 35 Ill. Adm. Code 302.530. PC 2 at 1-

The mixing provision at Section 309.141(h), like the rest of the proposed permitting

rules, are intended to implement the Board’s GLI water quality regulations adopted in R97-25.

In the Matter of: Conforming Amendments for the Great Lakes Initiative: 35 Ill. Adm. Code

302.101; 302.105; 302.Subpart E; 303.443 and 304.222 (December 18, 1997), R97-25. In

R97-25, the Board specifically addressed the phase-out of mixing zones and included a

prohibition on all mixing zones for BCCs after 2007. Thus, the mixing provision may be used

in calculating NPDES permit levels only to the extent allowed by the Board’s GLI regulations.

As noted correctly by Navy, the Board’s GLI regulations at Section 302.530 prohibit the

creation of mixing zones for new discharges of BCCs and require the phase-out of mixing

zones for existing discharges of BCCs. In light of this, the mixing provisions in the proposed

rules may be used only with respect to existing discharges of BCCs or discharges of

constituents that are not BCCs. Thus, the Board finds that the proposed permitting rules are

consistent with the GLI regulations. However, the Board has amended Section 309.141(h)(5)

by adding a new subsection (h)(5)(B) to clarify the proposed intent. Subsection (h)(5)(B) will

read:

B) Bioaccumulative chemicals of concern (BCCs):

i) No mixing shall be allowed for new discharges of BCCs

commencing on or after December 24, 1997. The PEL will be set

equivalent to the water quality standard.

ii) Mixing shall be allowed for discharges of BCCs which existed as of

December 24, 1997 in accordance with the requirements of 35 Ill.

Adm. Code 302.530.

Analysis and Detection. Navy also comments that the definitions for both “Minimum

Level” and “Quantification Level” refer only to the concentration and measurement of a

concentration detected by a specific analytical method set forth in 40 C.F.R. 136. PC 2 at 2.

Navy asserts this is contrary to the guidance and the Board’s own rules at 35 Ill. Adm. Code

302.550. Navy argues that both the guidance and the Board’s rules are written more broadly

to allow the use of analytical methods or means of quantification not specifically codified by

the USEPA or the Board.

The Board believes that there is some confusion in Navy’s interpretation of the

proposed regulations. At the outset, the Board notes that the proposed regulations do not

include the GLI provision pertaining to analysis and detection below quantification level. That

provision has been adopted by the Agency at 35 Ill. Adm. Code 352.700.

While the provision for addressing detection and analysis below quantification level is

not proposed in this Docket, as noted by Navy, the proposal includes definition of the terms

“Minimum Level” and “Quantification Level.” These definitions parallel those set forth in the

Federal GLI at 40 C.F.R. 132.2, except for the reference to the analytical procedures of 40

C.F.R. 136. This reference was added to provide guidance for choosing appropriate analytical

procedures. However, the Board agrees with Navy that the reference to 40 C.F.R. 136 may

be construed to be limiting in situations where a minimum level is not listed or a certain

procedure is not specified in 40 C.F.R. 136. In light of this, the Board has amended the

definition of “Minimum level” at Section 301.312 to allow the use of procedures not listed in

40 C.F.R. 136. This amendment follows the analytical testing requirements adopted by the

Board at 35 Ill. Adm. Code 302.550. Along the same lines, the Board has also amended the

definition of “Quantification level” at Section 301.371.

Section 301.312 Minimum Level

Minimum Level or ML is the concentration at which the entire analytical system must give a

recognizable signal and acceptable calibration point. The ML is the concentration in a sample that

is equivalent to the concentration of the lowest calibration standard analyzed by a specific

analytical procedure approved in 40 CFR 136, assuming that all the method-specified sample

weights, volumes and processing steps have been followed. The analytical procedure used for

determining minimum level must be a procedure published by USEPA or nationally recognized

organization, including but not limited to those methods found in 40 CFR 136, 40 CFR 132, or

Standard Methods, incorporated by reference in 35 Ill. Adm. Code 302.510.

Section 301.371 Quantification Level

Quantification Level is a measurement of the concentration of a contaminant obtained by using

a specified laboratory procedure

approved in 40 CFR 136 and

calibrated at a specified

concentration above the method detection level. It is considered the lowest concentration at

which a particular contaminant can be quantitatively measured using a specified laboratory

procedure for monitoring of the contaminant.

The analytical procedure used for determining

quantification level must be a procedure published by USEPA or nationally recognized

organization, including but not limited to those methods found in 40 CFR 136, 40 CFR 132, or

Standard Methods, incorporated by reference in 35 Ill. Adm. Code 302.510.

Navy raises four concerns regarding the data requirements for establishing background

at Section 309.141(h)(6)(B). First, Navy states that the rules fail to require a comparison of

data to “reported analytical” detection levels. In this regard, the Board disagrees and notes

that Section 309.141(h)(6)(B)(ii) requires the Agency to consider the reliability of data through

a comparison to “detection” and “quantification” levels, which are defined terms. The

definitions of these terms include a reference to analytical methods. In light of this, the Board

believes that the provision is consistent with the Federal GLI.

Second, Navy comments that the proposed rules do not allow the use of fish tissue data

as a means of establishing water column concentrations. In this regard, the Board notes that

the federal GLI provides a choice of three different data types for establishing the background

concentration for a pollutant: acceptable water column data; water column concentrations

estimated through the use of acceptable caged or resident fish tissue data; or water column

concentrations estimated through use of acceptable or projected pollutant loading data. 40

C.F.R. 132, Appendix F, Procedure 3. Navy correctly notes that the proposed regulations do

not explicitly provide for the use of fish tissue data. Therefore, to provide for consistency

with the federal GLI on this question, the Board amends Section 309.141(h)(6)(B)(iii) to allow

the use of fish tissue data as means of establishing water column concentrations.

Next, Navy questions the methodology specified at Section 309.141(h)(6)(B)(iii) for

addressing data sets containing values both above and below detection level. Navy argues that

the methodology is arbitrary since it is based on a false assumption that a substance below

detection level would be present at half of the detection level of that substance, if the detection

level is less than the lowest water quality value for that pollutant. PC 2 at 4. Navy suggests

that the Board require the Agency to use “commonly accepted statistical techniques,” as

required by the Federal GLI guidance. We agree with Navy’s suggestion and we will amend

Section 309.141(h)(6)(B)(iii) to read:

(iii) The representative background concentration for a pollutant in the

specified watershed, water body, or water body segment shall be

established on a case-by-case basis as the geometric mean of: acceptable

water column data; water column concentrations estimated through use of

acceptable caged or resident fish tissue data; or water column

concentrations estimated through the use of acceptable or projected

pollutant loading data. When determining the geometric mean of the data

for a pollutant that includes values both above and below the detection

level, commonly accepted statistical techniques shall be used to evaluate

the data. values less than the detection level shall be assumed to be present

at 1/2 of the detection level if the detection level is less than the lowest

water quality value for that pollutant. If all of the acceptable data in a data

set are below the detection level for a pollutant, then all the data for the

pollutant in that data set shall be assumed to be zero. If the detection level

of the available data is greater than the lowest water quality value for the

pollutant, then the background concentration will be determined by the

Agency on a case-by-case basis after considering all representative data,

including acceptable fish tissue data.

Last, Navy believes that the Board’s proposed Section 309.141(h)(6)(B)(iii) is contrary to

the approach recommended by GLI guidance. That section requires the Agency to calculate

background concentration if the detection level is greater than the lowest water quality level for a

specific pollutant. PC 2 at 5. Navy points out that the proposed requirement allows the Agency

to calculate background as it sees fit, and not by calculating the geometric mean of data sets as

required by the GLI guidance. Again, the Board believes there is some confusion in the

interpretation of the proposed regulations. Section 309.141(h)(6)(B)(iii) requires the Agency to

determine background concentration of a pollutant on a case-by-case basis considering

representative data. However, the Agency’s determination must be in accordance with the initial

requirement that background concentration be established as geometric mean. In light of this, the

Board believes that Section 301.141(h)(6)(B)(iii) is consistent with the GLI guidance. However,

the Board has made some minor changes to Section 309.141(h)(6)(B)(iii) that parallel the Federal

GLI requirement at 40 C.F.R. 132, Appendix F, Procedure 3 to clarify the proposed intent.

Wet Weather Discharge. Navy comments that the rules improperly exempt wet weather

discharges. PC 2 at 3. And finally, Navy states that it is reiterating its position expressed in

R97-25 (In the Matter of: Conforming Amendments for the Great Lakes Initiative: 35 Ill.

Adm. Code 302.101; 302.105; 302.Subpart E; 303.443 and 304.222 (December 18, 1997),

R97-25) that the rule fails to conform to GLI in detailing how background concentration is to

be calculated in establishing TMDLs and WLAs.

The Board appreciates the comment of Navy on this question, but notes that the issue

of wet weather discharge was addressed at length in R97-25 (In the Matter of: Conforming

Amendments for the Great Lakes Initiative: 35 Ill. Adm. Code 302.101; 302.105;

302.Subpart E; 303.443 and 304.222, (December 18, 1997) R97-25). Navy’s comment in this

proceeding does not provide the Board with any information that it did not have when it

developed the initial conforming amendments and, accordingly, does not provide the Board

with any information which requires reconsideration of that issue.

Illinois Environmental Regulatory Group/Illinois Steel Group

Illinois Environmental Regulatory Group (IERG) and the Illinois Steel Group (ISG)

comment that the Board should not adopt these rules based upon the argument that the record

is insufficient to determine economic reasonableness and technical feasibility. As set forth in

more detail in the section below, the Board disagrees.

Board Discussion

IERG cites to Granite City v. IPCB, 155 Ill. 2d 149; 613 N.E.2d 719 (1993), an

Illinois Supreme Court case wherein the Board’s authority to adopt rules was challenged. In

Granite City, the court affirmed the Board’s decision and determined that the Board adequately

considered evidence concerning technical feasibility and economic reasonableness. While

IERG concedes that the Act does not mandate a specific standard for the Board to use in

measuring technical feasibility and economic reasonableness, IERG maintains that the Act and

Granite City require that the Board develop a well-documented record in support of its

promulgation of regulations.” PC 3 at 3.

The Board has openly sought public comment in this proceeding and has held two

public hearings. The second hearing was specifically noticed to the public as a hearing to

elicit comments on DCCA’s decision not to develop an economic impact statement pursuant to

Section 27(b) of the Act. IERG and the ISG had every opportunity to participate fully in the

examination of this rule through the Board’s very public and open rulemaking process.

Despite that opportunity, neither group presented the Board with any evidence, argument, or

suggestion that the proposed rules were technically infeasible or economically unreasonable.

Likewise, the Board has not received a single comment, including IERG’s and ISG’s, which

makes those arguments.

Section 27(a) of the Act requires the Board:

In promulgating regulations under this Act, the Board shall take into account the

existing physical conditions, the character of the area involved, including the

character of surrounding land uses, zoning classifications, the nature of the

existing air quality, or receiving body of water, as the case may be, and

the

technical feasibility and economic reasonableness

of measuring or reducing the

particular type of pollution [emphasis added]. 415 ILCS 5/27 (1996).

In Granite City the Court states that the authority granted under Section 27 of the Act is a

“general grant of very broad authority and encompasses that which is necessary to achieve the

broad purposes of the Act.” Granite City 115 Ill. 2d 149, 175, 613 N.E.2d 719, 734. The

Court goes on to state:

Section 27(a) does not impose specific evidentiary requirements on the Board,

thereby limiting its authority to promulgate only regulations that it has

determined to be technically feasible and economically reasonable. Rather,

Section 27(a) requires only that the Board consider or take into account the

factors set forth therein. The Board must then use its technical expertise and

judgment in balancing any hardship that the regulations may cause to discharges

against its statutorily mandated purpose and function of protecting our

environment and public health. Granite City, 115 Ill. 2d 149, 175-176; 613

N.E.2d 719, 734-735.

The Board has reviewed the entirety of the record before it. In addition, the Board has

been guided by our decision in R97-25, wherein the Board found that implementation of the

federal GLI was economically reasonable and technically feasible. Finally, the sworn

testimony of the Agency experts and the assertions in the Statement of Reasons, absent any

contrary evidence in the record, are sufficient for the Board to “take into account” economic

reasonableness and technical feasibility.

The record is sufficient to support proceeding with this rule. The implementation costs

of the GLI were found to be reasonable in R97-25 (In the Matter of: Conforming

Amendments for the Great Lakes Initiative: 35 Ill. Adm. Code 302.101; 302.105;

302.Subpart E; 303.443 and 304.222, (December 18, 1997) R97-25). The Agency reiterated

its position from R97-25 (In the Matter of: Conforming Amendments for the Great Lakes

Initiative: 35 Ill. Adm. Code 302.101; 302.105; 302.Subpart E; 303.443 and 304.222

(December 18, 1997), R97-25) by stating:

It is the opinion of the Illinois Environmental Protection Agency that these

proposed procedures are not so significantly different than the existing

procedures to protect the Lake Michigan Basin as to cause significant cost

increases. If such unreasonable cost increases are demonstrated, the Great

Lakes Initiative provides for consideration of adjustments on a case by case

basis to avoid hardship. Reasons at 8.

As to the technical feasibility of the proposal, Mr. Toby Frevert and Mr. Tom

McSwiggin testified on behalf of the Agency, that the procedures are technically feasible. See

Tr.2 at 14-19. Specifically, Frevert stated that the procedures are “generally feasible” and

constitute “a default procedure that we [the Agency] would essentially put the world on notice

we [the Agency] intend to operate by, unless somebody can propose or substantiate some other

procedure.” Tr.2 at 15.

Frevert testified that the procedures proposed by the Agency are reasonable to establish

permit limits that are adequate to protect water quality, yet do not have such extreme

conservatism that they are impracticable for an operator. Tr.2 at 14-15. He noted that the

Agency used the statistical procedures recommended by the USEPA that demonstrate

compliance based on upper bound 95 % confidence of the 95th percentile of the effluent

concentration. Tr.2 at 15. Frevert maintained that the procedures are flexible enough to be

technically feasible across the board.

. He also noted that the proposed procedures are

consistent with the federal GLI implementation procedures. Tr.2 at 18-19.

Based upon the record before us, and the testimony of the Agency expert witnesses, the

Board finds sufficient economic and technical justification to proceed with these federally

derived rules. Further, the Board is convinced that the inclusion of these amendments in the

regulations implementing the Great Lakes Initiative will clarify issues and assist in the

administration of the program in Illinois. Therefore the Board will proceed to second notice

under the Administrative Procedure Act. 5 ILCS 100/1-1

et seq

CONCLUSION

These amendments propose changes to the Board’s water regulations which implement

the federal Great Lakes Initiative in the Lake Michigan Basin of Illinois. The Board notes that

the proposed amendments are squarely based upon the Board’s authority under the Act to

develop regulations for the protection of the waters of the State, and are necessary to

implement the federal GLI in Illinois. Further, these rules clarify the Agency’s authority to

carry out procedures which are necessary to implement the federal GLI. The Board believes

that proceeding to second notice is appropriate at this time.

The Board finds that the rule warrants proceeding to second notice under the Illinois

Administrative Procedure Act. 5 ILCS 100/1-1

et seq

. Further, the Board finds that the

proposal is economically reasonable and technically feasible.

ORDER

The Board directs the Clerk to cause the filing of the following proposal for Second

Notice with the Joint Committee on Administrative Rules:

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE C: WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 301

INTRODUCTION

Section

301.101

Authority

301.102

Policy

301.103

Repeals

301.104

Analytical Testing

301.105

References to Other Sections

301.106

Incorporations by Reference

301.107

Severability

301.108

Adjusted Standards

301.200

Definitions

301.205

Act

301.210

Administrator

301.215

Agency

301.220

Aquatic Life

301.221

Area of Concern

301.225

Artificial Cooling Lake

301.230

Basin

301.231

Bioaccumulative Chemicals of Concern

301.235

Board

301.240

CWA

301.245

Calumet River System

301.250

Chicago River System

301.255

Combined Sewer

301.260

Combined Sewer Service Area

301.265

Construction

301.270

Dilution Ratio

301.275

Effluent

301.280

Hearing Board

301.285

Industrial Wastes

301.290

Institute

301.295

Interstate Waters

301.300

Intrastate Waters

301.301

Lake Michigan Lakewide Management Plan

301.305

Land Runoff

301.310

Marine Toilet

301.311

Method Detection Level

301.312

Minimum Level

301.315

Modification

301.320

New Source

301.325

NPDES

301.330

Other Wastes

301.331

Outlier

301.335

Person

301.340

Pollutant

301.341

Pollutant Minimization Program

301.345

Population Equivalent

301.346

Preliminary Effluent Limitation

301.350

Pretreatment Works

301.355

Primary Contact

301.356

Projected Effluent Quality

301.360

Public and Food Processing Water Supply

301.365

Publicly Owned Treatment Works

301.370

Publicly Regulated Treatment Works

301.371

Quantification Level

301.372

Reasonable Potential Analysis

301.373

Same Body of Water

301.375

Sanitary Sewer

301.380

Secondary Contact

301.385

Sewage

301.390

Sewer

301.395

Sludge

301.400

Standard of Performance

301.405

STORET

301.410

Storm Sewer

301.411

Total Maximum Daily Load

301.415

Treatment Works

301.420

Underground Waters

301.421

Wasteload Allocation

301.425

Wastewater

301.430

Wastewater Source

301.435

Watercraft

301.440

Waters

301.441

Water Quality Based Effluent Limitation

301.442

Wet Weather Point Source

301.443

Whole Effluent Toxicity

APPENDIX

References to Previous Rules

AUTHORITY: Implementing Section 13 and authorized by Section 27 of the Environmental

Protection Act [415 ILCS 5/13 and 27].

SOURCE: Filed with the Secretary of State January 1, 1978; amended at 3 Ill. Reg. 25, p.

190, effective June 21, 1979; amended at 5 Ill. Reg. 6384, effective May 28, 1981; codified

at 6 Ill. Reg. 7818; amended in R88-1 at 13 Ill. Reg. 5984, effective April 18, 1989;

amended in R88-21(A) at 14 Ill. Reg. 2879, effective February 13, 1990; amended in R99-8

at 23 Ill. Reg. _________, effective _____________________.

Note: Capitalization denotes statutory language.

Section 301.106 Incorporations by Reference

Abbreviations. The following abbreviated names are used for materials

incorporated by reference:

"ASTM" means American Society for Testing and Materials

"GPO" means Superintendent of Documents, U.S. Government Printing Office

"NTIS" means National Technical Information Service

"Standard Methods" means "Standard Methods for the Examination of Water

and Wastewater", available from the American Public Health Association

"USEPA" means United States Environmental Protection Agency

The Board incorporates the following publications by reference:

American Public Health Association et al., 1015 Fifteenth Street, N.W.,

Washington, D.C. 20005

Standard Methods for the Examination of Water and Wastewater, 16th

Edition, 1985

ASTM. American Society for Testing and Materials, 1976 Race Street,

Philadelphia, PA 19013 (215) 299-5400

ASTM Standard E 724-80 "Standard Practice for Conducting Static

Acute Toxicity Tests with Larvae of Four Species of Bivalve Molluscs",

approved 1980.

ASTM Standard E 729-80 "Standard Practice for Conducting Static

Acute Toxicity Tests with Fishes, Macroinvertebrates, and Amphibians",

approved 1980.

ASTM Standard E 857-81 "Standard Practice for Conducting Subacute

Dietary Toxicity Tests with Avian Species", approved 1981.

ASTM Standard E 1023-84 "Standard Guide for Assessing the Hazard of

a Material to Aquatic Organisms and Their Uses", approved 1984.

ASTM Standard E 1103-86 "Method for Determining Subchronic

Dermal Toxicity", approved 1986.

ASTM Standard E 1147-87 "Standard Test Method for Partition

Coefficient (n-Octanol/Water) Estimation by Liquid Chromatography",

approved February 27, 1987.

ASTM Standard E 1192-88 "Standard Guide for Conducting Acute

Toxicity Tests on Aqueous Effluents with Fishes, Macroinvertebrates

and Amphibians", approved 1988.

ASTM Standard E 1193-87 "Standard Guide for Conducting Renewal

Life-Cycle Toxicity Tests with Daphnia Magna", approved 1987.

ASTM Standard E 1241-88 "Standard Guide for Conducting Early Life-

Stage Toxicity Tests with Fishes", approved 1988.

ASTM Standard E 1242-88 "Standard Practice for Using Octanol-Water

Partition Coefficients to Estimate Median Lethal Concentrations for Fish

due to Narcosis", approved 1988.

ASTM Standard E 4429-84 "Standard Practice for Conducting Static

Acute Toxicity Tests on Wastewaters with Daphnia", approved 1984.

NTIS. National Technical Information Service, 5285 Port Royal Road,

Springfield, VA 22161 (703) 487-4600

SIDES: STORET Input Data Editing System, January, 1973, Document

Number PB-227 052/8

Water Quality Data Base Management Systems, February, 1984,

Document Number AD-P004 768/8

USEPA. United States Environmental Protection Agency, Office of Health and

Environmental Assessment, Washington, D.C. 20460

Mutagenicity and Carcinogenicity Assessment for 1,3-Butadiene,

September, 1985, Document Number EPA/600/8-85/004A

The Board incorporates the following federal regulations by reference.

Available from the Superintendent of Documents, U.S. Government Printing

Office, Washington, D.C. 20402. (202)783-3238:

Procedure 5.b.2 of Appendix F of 40 CFR 132 (1995)

40 CFR 136 (19961988)

40 CFR 141 (1988)

40 CFR 302.4 (1988)

This Section incorporates no future editions or amendments.

(Source: Amended at 23 Ill. Reg. _________, effective ______________________.)

Section 301.221 Area of Concern

Area of Concern or AOC is an area specially designated for remediation efforts.

(Source: Added at 23 Ill. Reg. _________, effective ______________________.)

Section 301.231 Bioaccumulative Chemicals of Concern

Bioaccumulative Chemicals of Concern or BCC means a chemical or class of chemicals

meeting the definition at 35 Ill. Adm. Code 302.501.

(Source: Added at 23 Ill. Reg. _________, effective ______________________.)

Section 301.301 Lake Michigan Lakewide Management Plan

Lake Michigan Lakewide Management Plan or LaMP is a plan to manage the Illinois portion

of Lake Michigan as approved by USEPA.

(Source: Added at 23 Ill. Reg. _________, effective ______________________.)

Section 301.311 Method Detection Level

Method Detection Level is the minimum concentration of an analyte (substance) that can be

measured and reported with 99 percent confidence that the analyte concentration is greater than

zero as determined by the procedure set forth in Appendix B of 40 CFR 136.

(Source: Added at 23 Ill. Reg. _________, effective ______________________.)

Section 301.312 Minimum Level

Minimum Level or ML is the concentration at which the entire analytical system must give a

recognizable signal and acceptable calibration point. The ML is the concentration in a sample that

is equivalent to the concentration of the lowest calibration standard analyzed by a specific

analytical procedure, assuming that all the method-specified sample weights, volumes and

processing steps have been followed. The analytical procedure used for determining minimum

level must be a procedure published by USEPA or nationally recognized organization, including

but not limited to those methods found in 40 CFR 136, 40 CFR 132, or Standard Methods,

incorporated by reference in 35 Ill. Adm. Code 302.510.

(Source: Added at 23 Ill. Reg. _________, effective ______________________.)

Section 301.331 Outlier

Outlier is a test value that is not statistically valid under tests approved in 40 CFR 136.

(Source: Added at 23 Ill. Reg. _________, effective ______________________.)

Section 301.341 Pollutant Minimization Program

Pollutant Minimization Program means a plan to achieve or maintain the goal of reducing

contaminant discharges to below water quality based effluent limits.

(Source: Added at 23 Ill. Reg. _________, effective ______________________.)

Section 301.346 Preliminary Effluent Limitation

Preliminary Effluent Limitation or PEL is an estimate of an allowable discharge taking into

consideration mixing or dilution.

(Source: Added at 23 Ill. Reg. _________, effective ______________________.)

Section 301.356 Projected Effluent Quality

Projected Effluent Quality or PEQ is the amount of a contaminant estimated to be discharged

by a facility or activity taking into account statistical analysis of the discharge or activity.

(Source: Added at 23 Ill. Reg. _________, effective ______________________.)

Section 301.371 Quantification Level

Quantification Level is a measurement of the concentration of a contaminant obtained by using

a specified laboratory procedure calibrated at a specified concentration above the method

detection level. It is considered the lowest concentration at which a particular contaminant can

be quantitatively measured using a specified laboratory procedure for monitoring of the

contaminant.

The analytical procedure used for determining minimum level must be a procedure

published by USEPA or nationally recognized organization, including but not limited to those

methods found in 40 CFR 136, 40 CFR 132, or Standard Methods, incorporated by reference in

35 Ill. Adm. Code 302.510.

(Source: Added at 23 Ill. Reg. _________, effective ______________________.)

Section 301.372 Reasonable Potential Analysis

Reasonable Potential Analysis or Reasonable Potential to Exceed means the procedure to

predict whether an existing or future discharge would cause or contribute to a violation of

water quality standards, criteria or values.

(Source: Added at 23 Ill. Reg. _________, effective ______________________.)

Section 301.373 Same Body of Water

Same Body of Water means that, for purposes of evaluating intake toxic substances consistent

with 35 Ill. Adm. Code 352.425, the Agency will consider intake toxic substances to be from

the same body of water if the Agency finds that the intake toxic substance would have reached

the vicinity of the outfall point in the receiving water within a reasonable period had it not

been removed by the permittee and there is a direct hydrological connection between the intake

and the discharge points. Notwithstanding the provisions of this definition, an intake toxic

substance shall be considered to be from the same body of water if the permittee's intake point

is located on Lake Michigan and the outfall point is located on a tributary of Lake Michigan.

In this situation, the background concentration of the toxic substance in the receiving water

shall be similar to or greater than that in the intake water and the difference, if any, between

the water quality characteristics of the intake and receiving water shall not result in an adverse

impact on the receiving water.

(Source: Added at 23 Ill. Reg. _________, effective ______________________.)

Section 301.411 Total Maximum Daily Load

Total Maximum Daily Load or TMDL is the sum of the individual wasteload allocations for

point sources and load allocations for nonpoint sources and natural background, as more fully

defined at 40 CFR 130.2(i). A TMDL sets and allocates the maximum amount of a pollutant

that may be introduced into a water body and still assure attainment and maintenance of water

quality standards.

(Source: Added at 23 Ill. Reg. _________, effective ______________________.)

Section 301.421 Wasteload Allocation

Waste Load Allocation or WLA is the portion of receiving water's loading capacity that is

allocated to one of its existing or future point sources of pollution, as more fully defined at 40

CFR 130.2(h). In the absence of a TMDL approved by USEPA pursuant to 40 CFR 130.7 or

an assessment and remediation plan developed and approved in accordance with procedure 3.A

of Appendix F of 40 CFR 132, a WLA is the allocation for an individual point source that

ensures that the level of water quality to be achieved by the point source is derived from and

complies with all applicable water quality standards.

(Source: Added at 23 Ill. Reg. _________, effective ______________________.)

Section 301.441 Water Quality Based Effluent Limitation

Water Quality Based Effluent Limitation or WQBEL is a limit imposed in a permit so that the

applicable water quality standard, criteria or value is not exceeded outside of a designated

mixing zone.

(Source: Added at 23 Ill. Reg. _________, effective ______________________.)

Section 301.442 Wet Weather Point Source

Wet Weather Point Source means any discernible, confined and discrete conveyance from

which pollutants are, or may be, discharged as the result of a wet weather event. Discharges

from wet weather point sources shall include only: discharges of stormwater from a municipal

separate storm sewer as defined at 40 CFR 122.26(b)(8); stormwater discharge associated with

industrial activity as defined at 40 CFR 122.26(b)(14); discharges of stormwater and sanitary

wastewaters (domestic, commercial, and industrial) from a combined sewer overflow; or any

other stormwater discharge for which a permit is required under Section 402(p) of the Clean

Water Act. A stormwater discharge associated with industrial activity that is mixed with

process wastewater shall not be considered a wet weather point source.

(Source: Added at 23 Ill. Reg. _________, effective ______________________.)

Section 301.443 Whole Effluent Toxicity

Whole Effluent Toxicity or WET means a test procedure that determines the effect of an

effluent on aquatic life.

(Source: Added at 23 Ill. Reg. _________, effective ______________________.)

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE C: WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 302

WATER QUALITY STANDARDS

SUBPART A: GENERAL WATER QUALITY PROVISIONS

Section

302.100

Definitions

302.101

Scope and Applicability

302.102

Allowed Mixing, Mixing Zones and ZIDS

302.103

Stream Flows

302.104

Main River Temperatures

302.105

Nondegradation

SUBPART B: GENERAL USE WATER QUALITY STANDARDS

Section

302.201

Scope and Applicability

302.202

Purpose

302.203

Offensive Conditions

302.204

302.205

Phosphorus

302.206

Dissolved Oxygen

302.207

Radioactivity

302.208

Numeric Standards for Chemical Constituents

302.209

Fecal Coliform

302.210

Other Toxic Substances

302.211

Temperature

302.212

Ammonia Nitrogen and Un-ionized Ammonia

302.213

Effluent Modified Waters (Ammonia)

SUBPART C: PUBLIC AND FOOD PROCESSING WATER SUPPLY STANDARDS

Section

302.301

Scope and Applicability

302.302

Algicide Permits

302.303

Finished Water Standards

302.304

Chemical Constituents

302.305

Other Contaminants

302.306

Fecal Coliform

SUBPART D: SECONDARY CONTACT AND INDIGENOUS AQUATIC LIFE

STANDARDS

Section

302.401

Scope and Applicability

302.402

Purpose

302.403

Unnatural Sludge

302.404

302.405

Dissolved Oxygen

302.406

Fecal Coliform (Repealed)

302.407

Chemical Constituents

302.408

Temperature

302.409

Cyanide

302.410

Substances Toxic to Aquatic Life

SUBPART E: LAKE MICHIGAN BASIN WATER QUALITY STANDARDS

Section

302.501

Scope, Applicability, and Definitions

302.502

Dissolved Oxygen

302.503

302.504

Chemical Constituents

302.505

Fecal Coliform

302.506

Temperature

302.507

Thermal Standards for Existing Sources on January 1, 1971

302.508

Thermal Standards for Sources Under Construction But Not in Operation

on January 1, 1971

302.509

Other Sources

302.510

Incorporations by Reference

302.515

Offensive Conditions

302.520

Regulation and Designation of Bioaccumulative Chemicals of Concern

(BCCs)

302.521

Supplemental Antidegradation Provisions for BCCs

302.525

Radioactivity

302.530

Supplemental Mixing Provisions for Bioaccumulative Chemicals of

Concern (BCCs)

302.535

Ammonia Nitrogen

302.540

Other Toxic Substances

302.545

Data Requirements

302.550

Analytical Testing

302.553

Determining the Lake Michigan Aquatic Toxicity Criteria or Values -

General Procedures

302.555

Determining the Tier I Lake Michigan Basin Acute Aquatic Life Toxicity

Criterion (LMAATC): Independent of Water Chemistry

302.560

Determining the Tier I Lake Michigan Basin Acute Aquatic Life Toxicity

Criterion (LMAATC): Dependent on Water Chemistry

302.563

Determining the Tier II Lake Michigan Basin Acute Aquatic Life Toxicity

Value (LMAATV)

302.565

Determining the Lake Michigan Basin Chronic Aquatic Life Toxicity

Criterion (LMCATC) or the Lake Michigan Basin Chronic Aquatic Life

Toxicity Value (LMCATV)

302.570

Procedures for Deriving Bioaccumulation Factors for the Lake Michigan

Basin

302.575

Procedures for Deriving Tier I Water Quality Criteria in the Lake Michigan

Basin to Protect Wildlife

302.580

Procedures for Deriving Water Quality Criteria and Values in the Lake

Michigan Basin to Protect Human Health - General

302.585

Procedures for Determining the Lake Michigan Basin Human Health

Threshold Criterion (LMHHTC) and the Lake Michigan Basin Human

Health Threshold Value (LMHHTV)

302.590

Procedures for Determining the Lake Michigan Basin Human Health

Nonthreshold Criterion (LMHHNC) or the Lake Michigan Basin Human

Health Nonthreshold Value (LMHHNV)

302.595

Listing of Bioaccumulative Chemicals of Concern, Derived Criteria and

Values

SUBPART F: PROCEDURES FOR DETERMINING WATER QUALITY CRITERIA

Section

302.601

Scope and Applicability

302.603

Definitions

302.604

Mathematical Abbreviations

302.606

Data Requirements

302.612

Determining the Acute Aquatic Toxicity Criterion for an Individual

Substance - General Procedures

302.615

Determining the Acute Aquatic Toxicity Criterion - Toxicity Independent

of Water Chemistry

302.618

Determining the Acute Aquatic Toxicity Criterion - Toxicity Dependent on

Water Chemistry

302.621

Determining the Acute Aquatic Toxicity Criterion - Procedures for

Combinations of Substances

302.627

Determining the Chronic Aquatic Toxicity Criterion for an Individual

Substance - General Procedures

302.630

Determining the Chronic Aquatic Toxicity Criterion - Procedure for

Combination of Substances

302.633

The Wild and Domestic Animal Protection Criterion

302.642

The Human Threshold Criterion

302.645

Determining the Acceptable Daily Intake

302.648

Determining the Human Threshold Criterion

302.651

The Human Nonthreshold Criterion

302.654

Determining the Risk Associated Intake

302.657

Determining the Human Nonthreshold Criterion

302.658

Stream Flow for Application of Human Nonthreshold Criterion

302.660

Bioconcentration Factor

302.663

Determination of Bioconcentration Factor

302.666

Utilizing the Bioconcentration Factor

302.669

Listing of Derived Criteria

APPENDIX A

References to Previous Rules

APPENDIX B

Sources of Codified Sections

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

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

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

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

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

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

effective October 26, 1982; amended at 8 Ill. Reg. 1629, effective January 18, 1984;

peremptory amendments at 10 Ill. Reg. 461, effective December 23, 1985; amended at R87-27

at 12 Ill. Reg. 9911, effective May 27, 1988; amended at R85-29 at 12 Ill. Reg. 12082,

effective July 11, 1988; amended in R88-1 at 13 Ill. Reg. 5998, effective April 18, 1989;

amended in R88-21(A) at 14 Ill. Reg. 2899, effective February 13, 1990; amended in R88-

21(B) at 14 Ill. Reg. 11974, effective July 9, 1990; amended in R94-1(A) at 20 Ill. Reg. 7682,

effective May 24, 1996; amended in R94-1(B) at 20 Ill. Reg. 370, effective December 23,

1996; expedited correction at 20 Ill. Reg. 6273, effective December 23, 1996; amended in

R97-25 at 21 Ill. Reg. 1356, effective December 24, 1997; amended in R99-8 at 23 Ill. Reg.

_________, effective ______________________.

BOARD NOTE: This Part implements the Environmental Protection Act, as of July 1, 1994.

SUBPART A: GENERAL WATER QUALITY PROVISIONS

Section 302.101 Scope and Applicability

This Part contains schedules of water quality standards which are applicable

throughout the State as designated in 35 Ill. Adm. Code 303. Site specific

water quality standards are found with the water use designations in 35 Ill.

Adm. Code 303.

Subpart B contains general use water quality standards which must be met in

waters of the State for which there is no specific designation (35 Ill. Adm. Code

303.201).

Subpart C contains the public and food processing water supply standards.

These are cumulative with Subpart B and must be met by all designated waters

at the point at which water is drawn for treatment and distribution as a potable

supply or for food processing (35 Ill. Adm. Code 303.202).

Subpart D contains the secondary contact and indigenous aquatic life standards.

These standards must be met only by certain waters designated in 35 Ill. Adm.

Code 303.204 and 303.441.

Subpart E contains the Lake Michigan Basin water quality standards. These

must be met in the waters of the Lake Michigan Basin as designated in 35 Ill.

Adm. Code 303.443.

Subpart F contains the procedures for determining each of the criteria

designated in Section 302.210.

Unless the contrary is clearly indicated, all references to "Parts" or "Sections"

are to Ill. Adm. Code, Title 35: Environmental Protection. For example, "Part

309" is 35 Ill. Adm. Code 309, and "Section 309.101" is 35 Ill. Adm. Code

309.101.

(Source: Amended at 23 Ill. Reg. _________, effective ______________________.)

SUBPART E: LAKE MICHIGAN BASIN WATER QUALITY STANDARDS

Section 302.501 Scope, Applicability, and Definitions

Subpart E contains the Lake Michigan Basin water quality standards. These

must be met in the waters of the Lake Michigan Basin as designated in 35 Ill.

Adm. Code 303.443.

In addition to the definitions provided at 35 Ill. Adm. Code 301.200 through

301.444, and in place of conflicting definitions at Section 302.100, the

following terms have the meanings specified for the Lake Michigan Basin:

“Acceptable daily exposure” or “ADE” means an estimate of the maximum

daily dose of a substance thatwhich is not expected to result in adverse

noncancer effects to the general human population, including sensitive

subgroups.

“Acceptable endpoints”, for the purpose of wildlife criteria derivation, means

acceptable subchronic and chronic endpoints thatwhich affect reproductive or

developmental success, organismal viability or growth, or any other endpoint

thatwhich is, or is directly related to, parameters that influence population

dynamics.

“Acute to chronic ratio” or “ACR” is the standard measure of the acute toxicity

of a material divided by an appropriate measure of the chronic toxicity of the

same material under comparable conditions.

“Acute toxicity” means adverse effects that result from an exposure period

thatwhich is a small portion of the life span of the organism.

“Adverse effect” means any deleterious effect to organisms due to exposure to a

substance. This includes effects thatwhich are or may become debilitating,

harmful or toxic to the normal functions of the organism, but does not include

non-harmful effects such as tissue discoloration alone or the induction of

enzymes involved in the metabolism of the substance.

“Baseline BAF” for organic chemicals, means a BAF that is based on the

concentration of freely dissolved chemical in the ambient water and takes into

account the partitioning of the chemical within the organism; for inorganic

chemicals, a BAF is based on the wet weight of the tissue.

“Baseline BCF” for organic chemicals, means a BCF that is based on the

concentration of freely dissolved chemical in the ambient water and takes into

account the partitioning of the chemical within the organism; for inorganic

chemicals, a BAF is based on the wet weight of the tissue.

“Bioaccumulative chemical of concern” or “BCC” is any chemical that has the

potential to cause adverse effects and that, upon entering the surface waters, by

itself or as its toxic transformation product, accumulates in aquatic organisms by

a human health bioaccumulation factor greater than 1,000, after considering

metabolism and other physiochemical properties that might enhance or inhibit

bioaccumulation, in accordance with the methodology in Section 302.570. In

addition, the half life of the chemical in the water column, sediment or biota

must be greater than eight weeks. BCCs include, but are not limited to, the

following substances:

Chlordane

4,4’-DDD; p,p’-DDD; 4,4’-TDE; p,p’-TDE

4,4’-DDE; p,p’-DDE

4,4’-DDT; p,p’-DDT

Dieldrin

Hexachlorobenzene

Hexachlorobutadiene; Hexachloro-1,3-butadiene

Hexachlorocyclohexanes; BHCs

alpha- Hexachlorocyclohexane; alpha-BHC

beta- Hexachlorocyclohexane; beta-BHC

delta- Hexachlorocyclohexane; delta-BHC

Lindane; gamma- Hexachlorocyclohexane; gamma-BHC

Mercury

Mirex

Octachlorostyrene

PCBs; polychlorinated biphenyls

Pentachlorobenzene

Photomirex

2,3,7,8-TCDD; Dioxin

1,2,3,4-Tetrachlorobenzene

1,2,4,5-Tetrachlorobenzene

Toxaphene

“Bioaccumulation” is the net accumulation of a substance by an organism as a

result of uptake from all environmental sources.

“Bioaccumulation factor” or “BAF” is the ratio (in L/kg) of a substance's

concentration in the tissue of an aquatic organism to its concentration in the

ambient water, in situations where both the organism and its food are exposed

and the ratio does not change substantially over time.

“Bioconcentration” means the net accumulation of a substance by an aquatic

organism as a result of uptake directly from the ambient water through gill

membranes or other external body surfaces.

“Bioconcentration Factor” or “BCF” is the ratio (in L/kg) of a substance’s

concentration in the tissue of an aquatic organism to its concentration in the

ambient water, in situations where the organism is exposed through the water

only and the ratio does not change substantially over time.

“Biota-sediment accumulation factor” or “BSAF” means the ratio (in kg of

organic carbon/kg of lipid) of a substance’s lipid-normalized concentration in

the tissue of an aquatic organism to its organic carbon-normalized concentration

in surface sediment, in situations where the ratio does not change substantially

over time, both the organism and its food are exposed, and the surface sediment

is representative of average surface sediment in the vicinity of the organism.

“Carcinogen” means a substance thatwhich causes an increased incidence of

benign or malignant neoplasms, or substantially decreases the time to develop

neoplasms, in animals or humans. The classification of carcinogens is

determined by the procedures in Section II.A of aAppendix C to 40 CFR 132

(1996) incorporated by reference in Section 302.510.

“Chronic effect” means an adverse effect that is measured by assessing an

acceptable endpoint, and results from continual exposure over several

generations, or at least over a significant part of the test species' projected life

span or life stage.

“Chronic toxicity” means adverse effects that result from an exposure period

thatwhich is a large portion of the life span of the organism.

“Dissolved organic carbon” or “DOC” means organic carbon thatwhich passes

through a 1

m pore size filter.

“Dissolved metal” means the concentration of a metal that will pass through a

0.45

m pore size filter.

“Food chain” means the energy stored by plants is passed along through the

ecosystem through trophic levels in a series of steps of eating and being eaten,

also known as a food web.

“Food chain multiplier” or “FCM” means the ratio of a BAF to an appropriate

BCF.

“Linearized multi-stage model” means a mathematical model for cancer risk

assessment. This model fits linear dose-response curves to low doses. It is

consistent with a no-threshold model of carcinogenesis.

“Lowest observed adverse effect level” or “LOAEL” means the lowest tested

dose or concentration of a substance thatwhich results in an observed adverse

effect in exposed test organisms when all higher doses or concentrations result

in the same or more severe effects.

“No observed adverse effect level” or “NOAEL” means the highest tested dose

or concentration of a substance thatwhich results in no observed adverse effect

in exposed test organisms where higher doses or concentrations result in an

adverse effect.

“Octanol water partition coefficient” or “Kow” is the ratio of the concentration

of a substance in the n-octanol phase to its concentration in the aqueous phase in

an equilibrated two-phase octanol water system. For log Kow, the log of the

octanol water partition coefficient is a base 10 logarithm.

“Open Waters of Lake Michigan” means all of the waters within Lake Michigan

in Illinois jurisdiction lakeward from a line drawn across the mouth of

tributaries to Lake Michigan, but not including waters enclosed by constructed

breakwaters.

“Particulate organic carbon” or “POC” means organic carbon thatwhich is

retained by a 1

m pore size filter.

“Relative source contribution” or “RSC” means the percent of total exposure

thatwhich can be attributed to surface water through water intake and fish

consumption.

“Resident or indigenous species” means species thatwhich currently live a

substantial portion of their life cycle, or reproduce, in a given body of water, or

thatwhich are native species whose historical range includes a given body of

water.

“Risk associated dose” or “RAD” means a dose of a known or presumed

carcinogenic substance in mg/kg/day which, over a lifetime of exposure, is

estimated to be associated with a plausible upper bound incremental cancer risk

equal to one in 100,000.

“Slope factor” or “q

*” is the incremental rate of cancer development calculated

through use of a linearized multistage model or other appropriate model. It is

expressed in mg/kg/day of exposure to the chemical in question.

"Standard Methods" means "Standard Methods for the Examination of Water

and Wastewater", available from the American Public Health Association.

“Subchronic effect” means an adverse effect, measured by assessing an

acceptable endpoint, resulting from continual exposure for a period of time less

than that deemed necessary for a chronic test.

“Target species” is a species to be protected by the criterion.

“Target species value” is the criterion value for the target species.

“Test species” is a species that has test data available to derive a criterion.

“Test dose” or “TD” is a LOAEL or NOAEL for the test species.

“Tier I criteria” are numeric values derived by use of the Tier I methodologies

that either have been adopted as numeric criteria into a water quality standard or

are used to implement narrative water quality criteria.

“Tier II values” are numeric values derived by use of the Tier II methodologies

that are used to implement narrative water quality criteria. They are applied as

criteria, have the same effect, and subject to the same appeal rights as criteria.

“Trophic level” means a functional classification of taxa within a community

that is based on feeding relationships. For example, aquatic green plants and

herbivores comprise the first and second trophic levels in a food chain.

“Toxic unit acute” or “TU

” is the reciprocal of the effluent concentration that

causes 50 percent of the test organisms to die by the end of the acute exposure

period, which is 48 hours for invertebrates and 96 hours for vertebrates.

“Toxic unit chronic” or “TU

” is the reciprocal of the effluent concentration

that causes no observable effect on the test organisms by the end of the chronic

exposure period, which is at least seven days for Ceriodaphnia

fathead minnow

and rainbow trout.

“Uncertainty factor” or “UF” is one of several numeric factors used in deriving

criteria from experimental data to account for the quality or quantity of the

available data.

"USEPA" means United States Environmental Protection Agency.

(Source: Amended at 23 Ill. Reg. _________, effective ______________________.)

Section 302.502 Dissolved Oxygen

Dissolved oxygen (STORET number 00300) must not be less than 90% of saturation, except

due to natural causes, in the Open Waters of Lake Michigan as defined at Section 302.501.

The other waters of the Lake Michigan Basinbasin must not be less than 6.0 mg/L during at

least 16 hours of any 24 hour period, nor less than 5.0 mg/L at any time.

(Source: Amended at 23 Ill. Reg. _________, effective ______________________.)

Section 302.503 pH

pH (STORET number 00400) must be within the range of 7.0 to 9.0, except for natural

causes, in the Open Waters of Lake Michigan as defined at Section 302.501. Other waters of

the Basinbasin must be within the range of 6.5 to 9.0, except for natural causes.

(Source: Amended at 23 Ill. Reg. _________, effective ______________________.)

Section 302.504 Chemical Constituents

The following concentrations of chemical constituents must not be exceeded, except as

provided in Sections 302.102 and 302.530:

The following standards must be met in all waters of the Lake Michigan Basin.

Acute aquatic life standards (AS) must not be exceeded at any time except for

those waters for which the Agency has approved a zone of initial dilution (ZID)

pursuant to Sections 302.102 and 302.530. Chronic aquatic life standards (CS)

and human health standards (HHS) must not be exceeded outside of waters in

which mixing is allowed pursuant to Section 302.102 and 302.530 by the

arithmetic average of at least four consecutive samples collected over a period

of at least four days. The samples used to demonstrate compliance with the CS

or HHS must be collected in a manner which assures an average representation

of the sampling period.

Constituent

STORET

Number

Unit

HHS

Arsenic

(Trivalent, dissolved)

22680

g/L

340

148

Constituent

STORET

Number

Unit

HHS

Cadmium (dissolved)

01025

g/L

exp[A

+Bln(H)]

A=-3.6867

B = 1.128

exp[A

+Bln(H)]

A = -2.715

B = 0.7852

Chromium

(Hexavalent, total)

01032

g/L

Chromium

(Trivalent, dissolved)

80357

g/L

exp[A

+Bln(H)]

A = 3.7256

B =0.819

exp[A

+Bln(H)]

A = 0.6848

B = 0.819

Copper

(dissolved)

01040

g/L

exp[A

+Bln(H)]

A = -1.700

B = 0.9422

exp[A

+Bln(H)]

A = -1.702

B = 0.8545

Cyanide

(Weak acid dissociable)

00718

g/L

5.2

Lead

(dissolved)

01049

g/L

exp[A

+Bln(H)]

A = -1.055

B = 1.273

exp[A

+Bln(H)]

A = -4.003

B = 1.273

Nickel

(dissolved)

01065

g/L

exp[A

+Bln(H)]

A = 2.255

B = 0.846

exp[A

+Bln(H)]

A = 0.0584

B = 0.846

Selenium

(dissolved)

01145

g/L

5.0

TRC

50060

g/L

Zinc

(dissolved)

01090

g/L

exp[A

+Bln(H)]

A = 0.884

exp[A

+Bln(H)]

A = 0.884

Constituent

STORET

Number

Unit

HHS

B = 0.8473

Benzene

34030

g/L

310

Chlorobenzene

34301

mg/L

3.2

2,4-Dimethylphenol

34606

mg/L

8.7

2,4-Dinitrophenol

03756

mg/L

2.8

Endrin

39390

g/L

0.086

0.036

Hexachloroethane

34396

g/L

6.7

Methylene chloride

34423

mg/L

2.6

Parathion

39540

g/L

0.065

0.013

Pentachlorophenol

03761

g/L

exp B ([pH]

+A)

A = -4.869

B = 1.005

exp B ([pH]

+A)

A = -5.134

B = 1.005

Toluene

78131

mg/L

51.0

Trichloroethylene

39180

g/L

370

Where:

NA = Not Applied

Exp[x] = base of natural logarithms

raised to the x-power

ln(H) = natural logarithm of Hardness

(STORET 00900)

The following water quality standards must not be exceeded at any time in any

waters of the Lake Michigan Basin, unless a different standard is specified

under subsection (c) of this Section.

Constituent

STORET

Number

Unit

Water Quality Standard

Barium (total)

01007

mg/L

5.0

Boron (total)

01022

mg/L

1.0

Chloride (total)

00940

mg/L

500

Fluoride

00951

mg/L

1.4

Iron (dissolved)

01046

mg/L

1.0

Manganese (total)

01055

mg/L

1.0

Phenols

32730

mg/L

0.1

Sulfate

00945

mg/L

500

Total Dissolved Solids

70300

mg/L

1000

In addition to the standards specified in subsections (a) and (b) of this Section,

the following standards must not be exceeded at any time in the Open Waters of

Lake Michigan as defined in Section 302.501.

Constituent

STORET

Number

Unit

Water Quality Standard

Arsenic (total)

01002

g/L

50.0

Barium (total)

01007

mg/L

1.0

Chloride

00940

mg/L

12.0

Iron (dissolved)

01046

mg/L

0.30

Lead (total)

01051

g/L

50.0

Manganese (total)

01055

mg/L

0.15

Constituent

STORET

Number

Unit

Water Quality Standard

Nitrate-Nitrogen

00620

mg/L

10.0

Phosphorus

00665

g/L

7.0

Selenium (total)

01147

g/L

10.0

Sulfate

00945

mg/L

24.0

Total Dissolved Solids

70300

mg/L

180.0

Oil (hexane solubles or

equivalent)

00550,

00556 or

00560

mg/L

0.10

Phenols

32730

g/L

1.0

In addition to the standards specified in subsections (a), (b) and (c) of this

Section, the following human health standards (HHS) must not be exceeded in

the Open Waterswaters of Lake Michigan as defined in Section 302.501 by the

arithmetic average of at least four consecutive samples collected over a period

of at least four days. The samples used to demonstrate compliance with the

HHS must be collected in a manner which assures an average representation of

the sampling period.

Constituent

STORET

Number

Unit

Water Quality Standard

Benzene

34030

g/L

12.0

Chlorobenzene

34301

g/L

470.0

2,4-Dimethylphenol

34606

g/L

450.0

2,4-Dinitrophenol

03757

g/L

55.0

Hexachloroethane

(total)

34396

g/L

5.30

Lindane

39782

g/L

0.47

Constituent

STORET

Number

Unit

Water Quality Standard

Methylene chloride

34423

g/L

47.0

Toluene

78131

mg/L

5.60

Trichloroethylene

39180

g/L

29.0

For the following bioaccumulative chemicals of concern (BCCs), acute aquatic

life standards (AS) must not be exceeded at any time in any waters of the Lake

Michigan Basin and chronic aquatic life standards (CS), human health standards

(HHS), and wildlife standards (WS) must not be exceeded in any waters of the

Lake Michigan Basin by the arithmetic average of at least four consecutive

samples collected over a period of at least four days subject to the limitations of

Sections 302.520 and 302.530. The samples used to demonstrate compliance

with the HHS and WS must be collected in a manner that assures an average

representation of the sampling period.

Constituent

STORET

Number

Unit

HHS

Mercury (total)

71900

ng/L

1,700

910

3.1

1.3

Chlordane

39350

ng/L

0.25

DDT and metabolites

39370

pg/L

150

11.0

Dieldrin

39380

ng/L

240

0.0065

Hexachlorobenzene

39700

ng/L

0.45

Lindane

39782

g/L

0.95

0.5

PCBs (class)

79819

pg/L

120

2,3,7,8-TCDD

03556

fg/L

8.6

3.1

Toxaphene

39400

pg/L

Where:

mg/L = milligrams per liter (10

-3

grams per liter)

g/L = micrograms per liter (10

-6

grams per liter)

ng/L = nanograms per liter (10

-9

grams per liter)

pg/L = picograms per liter (10

-12

grams per liter)

fg/L = femtograms per liter (10

-15

grams per liter)

NA = Not Applied

(Source: Amended at 23 Ill. Reg. _________, effective ______________________.)

Section 302.507 Thermal Standards for Existing Sources on January 1, 1971

All sources of heated effluents in existence as of January 1, 1971, shall meet the following

restrictions outside of a mixing zone which shall be no greater than a circle with a radius of

305 m (1000 feet) or an equal fixed area of simple form.

There shall be no abnormal temperature changes that may affect aquatic life.

The normal daily and seasonal temperature fluctuations that existed before the

addition of heat shall be maintained.

The maximum temperature rise at any time above natural temperatures shall not

exceed 1.7

C (3

F). In addition, the water temperature shall not exceed the

maximum limits indicated in the following table:

JAN.

45 JUL.

FEB.

45 AUG.

MAR.

45 SEPT.

APR.

55 OCT.

MAY

60 NOV.

JUN.

70 DEC.

(Source: Amended at 23 Ill. Reg. _________, effective ______________________.)

Section 302.521 Supplemental Antidegradation Provisions for BCCs

Notwithstanding the provisions of Section 302.105, waters within the Lake

Michigan Basin must not be lowered in quality due to new or increased loading

of substances defined as bioaccumulative chemicals of concern (BCCs) in

Section 302.501 from any source or activity subject to the NPDES permitting,

Section 401 water quality certification provisions of the Clean Water Act (P.L.

92-100, as amended), or joint permits from the Agency and the Illinois

Department of Natural Resources under Section 39(n) of the Act [415 ILCS

5/39(n)] until and unless it can be affirmatively demonstrated that such change

is necessary to accommodate important economic or social development.

Where ambient concentrations of a BCC are equal to or exceed an

applicable water quality criterion, no increase in loading of that BCC is

allowed.

Where ambient concentrations of a BCC are below the applicable water

quality criterion, a demonstration to justify increased loading of that

BCC must include the following:

Pollution Prevention Alternatives Analysis. Identify any cost-

effective reasonably available pollution prevention alternatives

and techniques that would eliminate or significantly reduce the

extent of increased loading of the BCC.

Alternative or Enhanced Treatment Analysis. Identify alternative

or enhanced treatment techniques that are cost effective and

reasonably available to the entity that would eliminate or

significantly reduce the extent of increased loading of the BCC.

Important Social or Economic Development Analysis. Identify

the social or economic development and the benefits that would

be forgone if the increased loading of the BCC is not allowed.

In no case shall increased loading of BCCs result in exceedence of

applicable water quality criteria or concentrations exceeding the level of

water quality necessary to protect existing uses.

Changes in loadings of any BCC within the existing capacity and

processes of an existing NPDES authorized discharge, certified activity

pursuant to Section 401 of the Clean Water Act, or joint permits from

the Agency and the Illinois Department of Natural Resources under

Section 39(n) of the Act are not subject to the antidegradation review of

subsection (a) of this Section. These changes include but are not limited

to:

normal operational variability, including, but not limited to,

intermittent increased discharges due to wet weather conditions;

changes in intake water pollutants;

increasing the production hours of the facility; or

increasing the rate of production.

Any determination to allow increased loading of a BCC pursuant to a

demonstration of important economic or social development need shall

satisfy the public participation requirements of 40 CFR 25 prior to final

issuance of the NPDES permit, Section 401 water quality certification,

or joint permits from the Agency and the Illinois Department of Natural

Resources under Section 39(n) of the Act.

The following actions are not subject to the provisions of subsection (a) of this

Section, unless the Agency determines the circumstances of an individual

situation warrant application of those provisions to adequately protect water

quality:

Short-term, temporary (i.e., weeks or months) lowering of water

quality;

Bypasses that are not prohibited at 40 CFR 122.41 (m); or

Response actions pursuant to the Comprehensive Environmental

Response, Compensation and Liability Act (CERCLA), as amended, or

similar federal or State authority, undertaken to alleviate a release into

the environment of hazardous substances, pollutants or contaminants

thatwhich may pose danger to public health or welfare.

(Source: Amended at 23 Ill. Reg. _________, effective ______________________.)

Section 302.535 Ammonia Nitrogen

The Open Waters of Lake Michigan as defined in Section 302.501 must not exceed 0.02 mg/L

total ammonia (as N: STORET Number 00610). The remaining waters of the Lake Michigan

Basinbasin shall be subject to the following:

Total ammonia nitrogen (as N: STORET Number 00610) must in no case

exceed 15 mg/L.

Un-ionized ammonia nitrogen (as N: STORET Number 00612) must not exceed

the acute and chronic standards given below subject to the provisions of

Sections 302.208(a) and (b) of this Part:

From April through October, the Acute Standard (AS) shall be 0.33

mg/L and the chronic standard (CS) shall be 0.057 mg/L.

From November through March, the AS shall be 0.14 mg/L and the CS

shall be 0.025 mg/L.

For purposes of this Section, the concentration of un-ionized ammonia nitrogen

as N and total ammonia as N shall be computed according to the following

equations:

[0.94412(1 + 10

) + 0.0559]

and N = U[0.94412(1 + 10

) + 0.0559]

Where: X = 0.09018 + 2729.92

-pH

(T + 273.16)

U = Concentration of un-ionized ammonia as N in mg/L

N = Concentration of ammonia nitrogen as N in mg/L

T = Temperature in degrees Celsius.

(Source: Amended at 23 Ill. Reg. _________, effective ______________________.)

Section 302.540 Other Toxic Substances

Waters of the Lake Michigan Basin must be free from any substance or any combination of

substances in concentrations toxic or harmful to human health, or to animal, plant or aquatic

life. The numeric standards protective of particular uses specified for individual chemical

substances in Section 302.504 are not subject to recalculation by this Section, however, where

no standard is applied for a category, a numeric value may be calculated herein.

Any substance shall be deemed toxic or harmful to aquatic life if present in

concentrations that exceed the following:

A Tier I Lake Michigan Basin Acute Aquatic Life Toxicity Criterion

(LMAATC) or Tier II Lake Michigan Basin Acute Aquatic Life Toxicity

Value (LMAATV) derived pursuant to procedures set forth in Sections

302.555, 302.560 or 302.563 at any time; or

A Tier I Lake Michigan Basin Chronic Aquatic Life Toxicity Criterion

(LMCATC) or Tier II Lake Michigan Basin Chronic Aquatic Life

Toxicity Value (LMCATV) derived pursuant to procedures set forth in

Section 302.565 as an average of four samples collected on four

different days.

Any combination of substances, including effluents, shall be deemed toxic to

aquatic life if present in concentrations that exceed either subsection (b)(1) or

(2) of this Section:

No sample of water from the Lake Michigan Basin collected outside of a

designated zone of initial dilution shall exceed 0.3 TU

as determined for

the most sensitive species tested using acute toxicity testing methods.

No sample of water from the Lake Michigan Basin collected outside a

designated mixing zone shall exceed 1.0 TU

as determined for the most

sensitive species tested using chronic toxicity testing methods.

To demonstrate compliance with subsections (1) and (2) of this

subsection (b), at least two resident or indigenous species will be tested.

The rainbow trout will be used to represent fishes for the Open Waters

of Lake Michigan and the fathead minnow will represent fishes for the

other waters of the Lake Michigan Basin. Ceriodaphnia will represent

invertebrates for all waters of the Lake Michigan Basin. Other common

species shall be used if listed in Table I A of 40 CFR 136, incorporated

by reference at Section 302.510, and approved by the Agency.

Any substance shall be deemed toxic or harmful to wildlife if present in

concentrations that exceed a Tier I Lake Michigan Basin Wildlife Criterion

(LMWLC) derived pursuant to procedures set forth in Section 302.575 as an

arithmetic average of four samples collected over four different days.

For any substance that is a threat to human health through drinking water

exposure only, the resulting criterion or value shall be applicable to only the

Open Waters of Lake Michigan. For any substance that is determined to be a

BCC, the resulting criterion shall apply in the entire Lake Michigan Basin.

These substances shall be deemed toxic or harmful to human health if present in

concentrations that exceed either of the following:

A Tier I Lake Michigan Basin Human Health Threshold Criterion

(LMHHTC) or Tier II Lake Michigan Basin Human Health Threshold

Value (LMHHTV) based on disease or functional impairment due to a

physiological mechanism for which there is a threshold dose below

which no damage occurs as derived pursuant to procedures set forth in

Section 302.585 as an arithmetic average of four samples collected over

four different days; or

A Tier I Lake Michigan Basin Human Health Nonthreshold Criterion

(LMHHNC) or Tier II Lake Michigan Basin Human Health

Nonthreshold Value (LMHHNV) based on disease or functional

impairment due to a physiological mechanism for which any dose may

cause some risk of damage as derived pursuant to procedures set forth in

Section 302.590 as an arithmetic average of four samples collected over

four different days.

The derived criteria and values apply at all points outside of any waters in

which mixing is allowed pursuant to Section 302.102 or Section 302.530.

The procedures of this Subpart E set forth minimum data requirements,

appropriate test protocols and data assessment methods for establishing criteria

or values pursuant to subsections (b), (c), and (d) of this Section. No other

procedures may be used to establish such criteria or values unless approved by

the Board in a rulemaking or adjusted standards proceeding pursuant to Title VII

of the Act. The validity and applicability of these procedures may not be

challenged in any proceeding brought pursuant to Title VIII or X of the Act,

although the validity and correctness of application of the numeric criteria or

values derived pursuant to this Subpart may be challenged in such proceedings

pursuant to subsection (g) of this Section.

Challenges to application of criteria and values.

A permittee may challenge the validity and correctness of application of

a criterion or value derived by the Agency pursuant to this Section only

at the time such criterion or value is first applied in its NPDES permit

pursuant to 35 Ill. Adm. Code 309.152 or in an action pursuant to Title

VIII of the Act for violation of the toxicity water quality standard.

Failure of a person to challenge the validity of a criterion or value at the

time of its first application to that person’s facility shall constitute a

waiver of such challenge in any subsequent proceeding involving

application of the criterion or value to that person.

Consistent with subsection (g)(1) of this Section, if a criterion or value is

included as, or is used to derive, a condition of an NPDES discharge

permit, a permittee may challenge the criterion or value in a permit

appeal pursuant to 35 Ill. Adm. Code 309.181. In any such action, the

Agency shall include in the record all information upon which it has

relied in developing and applying the criterion or value, and whether

such information was developed by the Agency or submitted by the

petitioner. THE BURDEN OF PROOF SHALL BE ON THE

PETITIONER pursuant to Section 40(a)(1) of the Act.

Consistent with subsection (g)(1) of this Section, in an action where

alleged violation of the toxicity water quality standard is based on

alleged excursion of a criterion or value, the person bringing such action

shall have the burdens of going forward with proof and persuasion

regarding the general validity and correctness of application of the

criterion or value.

Subsections (a) through (e) of this Section do not apply to USEPA registered

pesticides approved for aquatic application and applied pursuant to the following

conditions:

Application shall be made in strict accordance with label directions;

Applicator shall be properly certified under the provisions of the Federal

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

(1972));

Applications of aquatic pesticides must be in accordance with the laws,

regulations and guidelines of all State and federal agencies authorized by

law to regulate, use or supervise pesticide applications;

No aquatic pesticide shall be applied to waters affecting public or food

processing water supplies unless a permit to apply the pesticide has been

obtained from the Agency. All permits shall be issued so as not to cause

a violation of the Act or of any of the Board's rules or regulations. To

aid applicators in determining their responsibilities under this subsection

(h), a list of waters affecting public water supplies will be published and

maintained by the Agency's Division of Public Water Supplies.

(Source: Amended at 23 Ill. Reg. _________, effective ______________________.)

Section 302.545 Data Requirements

The Agency shall review, for validity, applicability and completeness the data used in

calculating criteria or values. To the extent available, and to the extent not otherwise

specified, testing procedures, selection of test species and other aspects of data acquisition

must be according to methods published by USEPA or nationally recognized standards of

organizations, including, but not limited to, those methods found in Standard Methods,

incorporated by reference in Section 302.510, or recommended in 40 CFR 132 and

incorporated by reference in Section 302.510.

(Source: Amended at 23 Ill. Reg. _________, effective ______________________.)

Section 302.555 Determining the Tier I Lake Michigan Basin Acute Aquatic Life Toxicity

Criterion (LMAATC): Independent of Water Chemistry

If the acute toxicity of the chemical has not been shown to be related to a water quality

characteristic, including, but not limited to, hardness, pH, or temperature, the Tier I

LMAATC is calculated using the procedures below.

For each species for which more than one acute value is available, the Species

Mean Acute Value (SMAV) is calculated as the geometric mean of the acute

values from all tests.

For each genus for which one or more SMAVs are available, the Genus Mean

Acute Value (GMAV) is calculated as the geometric mean of the SMAVs

available for the genus.

The GMAVs are ordered from high to low in numerical order.

Ranks (R) are assigned to the GMAVs from "1" for the lowest to "N" for the

highest. If two or more GMAVs are identical, successive ranks are arbitrarily

assigned.

The cumulative probability, P, is calculated for each GMAV as R/(N+1).

The GMAVs to be used in the calculations of subsection (g) of this Section must

be those with cumulative probabilities closest to 0.05. If there are fewer than

59 GMAVs in the total data set, the values utilized must be the lowest four

obtained through the ranking procedures of subsections (c) and (d) of this

Section.

Using the GMAVs identified pursuant to subsection (f) of this Section and the

Ps calculated pursuant to subsection (e) of this Section, the Final Acute Value

(FAV) and the LMAATC are calculated as:

FAV = exp(A) and

LMAATC = FAV/2

Where:

A = L + 0.2236 S

L = [

(lnGMAV) - S(

0.5

))]/4

S = [[

((lnGMAV)

) - ((

(lnGMAV))

)/4]/[

(P) - ((

0.5

))

)/4]]

0.5

If a resident or indigenous species, whose presence is necessary to sustain

commercial or recreational activities, will not be protected by the calculated

FAV, then the SMAV for that species is used as the FAV.

(Source: Amended at 23 Ill. Reg. _________, effective ______________________.)

Section 302.560 Determining the Tier I Lake Michigan Basin Acute Aquatic Life Toxicity

Criterion (LMAATC): Dependent on Water Chemistry

If data are available to show that a relationship exists between a water quality characteristic

(WQC) and acute toxicity to two or more species, a Tier I LMAATC must be calculated using

procedures in this Section. Although the relationship between hardness and acute toxicity is

typically non-linear, it can be linearized by a logarithmic transformation (i.e., for any

variable, K, f(K) = logarithm of K) of the variables and plotting the logarithm of hardness

against the logarithm of acute toxicity. Similarly, relationships between acute toxicity and

other water quality characteristics, such as pH or temperature, may require a transformation,

including no transformation (i.e., for any variable, K, f(K) = K) for one or both variables to

obtain least squares linear regression of the transformed acute toxicity values on the

following procedures.

different values of the water quality characteristic, a linear least squares

regression of the transformed acute toxicity (TAT) values on the transformed

the line describing the relationship.

of this Section is

number of tested values of the water quality characteristic and the degree of

agreement within and between species. If slopes are not available for at least

or if too few data are available to define the relationship between acute toxicity

and the water quality characteristic, then the LMAATC must be calculated using

Normalize the TAT values for each species by subtracting W, the arithmetic

determination of the mean, such that the arithmetic mean of the normalized

TAT values for each species individually or for any combination of species is

Normalize the TWQC values for each species usin

the TWQC values of a species, in the same manner as in subsection (c) of this

species and perform a least squares linear regression of all the normalized TAT

values on the corresponding normalized TWQC values to obtain the pooled

For each species, the graphical intercept representing the species TAT intercept,

equation:

f(Y) = W - V(X - g(Z))

f() is the transformation used to convert acute toxicity values to TAT values

Y is the species acute toxicity intercept or species acute intercept

Section

V is the pooled acute slope as specified in subsection (e) of this Section

X is the arithmetic mean of the TWQC values as specified in subsection (c) of

this Section

g() is the transformation used to convert the WQC values to TWQC values

Z is a selected value of the WQC

For each species, determine the species acute intercept, Y, by carrying out an

inverse transformation of the species TAT value, f(Y). For example, in the

case of a logarithmic transformation, Y = antilogarithm of (f(Y));: or in the

case where no transformation is used, Y = f(Y).

The Final Acute Intercept (FAI) is derived by using the species acute intercepts,

obtained from subsection (f) of this Section, in accordance with the procedures

described in Section 302.555 (b) through (g), with the word "value" replaced by

the word "intercept". Note that in this procedure geometric means and natural

logarithms are always used.

The Aquatic Acute Intercept (AAI) is obtained by dividing the FAI by two.

If, for a commercially or recreationally important species, the geometric mean

of the acute values at Z is lower than the FAV at Z, then the geometric mean of

that species must be used as the FAV.

The LMAATC at any value of the WQC, denoted by WQCx, is calculated using

the terms defined in subsection (f) of this Section and the equation:

LMAATC = exp[V(g(WQCx) - g(Z)) + f(AAI)]

(Source: Amended at 23 Ill. Reg. _________, effective ______________________.)

Section 302.563 Determining the Tier II Lake Michigan Basin Acute Aquatic Life Toxicity

Value (LMAATV)

If all eight minimum data requirements for calculating aan FAV using Tier I procedures are

not met, a Tier II LMAATV must be calculated for a substance as follows:

The lowest GMAV in the database is divided by the Secondary Acute Factor

(SAF) corresponding to the number of satisfied minimum data requirements

listed in the Tier I methodology (Section 302.553). In order to calculate a Tier

II LMAATV, the data base must contain, at a minimum, a GMAV for one of

the following three genera in the family Daphnidae -- Ceriodaphnia sp.,

Daphnia sp., or Simocephalus sp. The Secondary Acute Factors are:

Number of Minimum data requirements satisfied (required taxa)

Secondary Acute Factor

43.8

16.0

14.0

10.4

8.6

calculated according to Section 302.560.

(Source: Amended at 23 Ill. Reg. _________, effective ______________________.)

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

(LMCATV)

Determining Tier I LMCATC

le for at least eight resident or

indigenous species from eight different North American genera of

is derived in the same manner as the FAV in Section 302.555 or 302.560

by substituting LMCATC for FAV or FAI, chronic for acute, SMCV

Chronic Value) for GMAV.

of this

Section

geometric mean of the acute-chronic ratios (ACRs) obtained from at

provided that of the three species:

At least one is an invertebrate; and

At least one species is an acutely sensitive freshwater species if

the other two are saltwater species.

The acute-chronic ratio (ACR) for a species equals the acute toxicity

concentration from data considered under Section 302.555 or 302.560,

If a resident or indigenous species whose presence is necessary to sustain

commercial or recreational activities will not be protected by the

calculated LMCATC, then the SMCV for that species is used as the

CATC.

Determining the Tier II LMCATV

If all eight minimum data requirements for calculating a FCV using Tier

I procedures are not met, or if there are not enough data for all three

ACRs, a Tier II Lake Michigan Chronic Aquatic Life Toxicity Value

shall be calculated using a secondary acute chronic ratio (SACR)

determined as follows:

If fewer than three valid experimentally determined ACRs are

available:

Use sufficient ACRs of 18 so that the total number of

ACRs equals three; and

ii)

Calculate the Secondary Acute-Chronic Ratio as the

geometric mean of the three ACRs; or

If no experimentally determined ACRs are available, the SACR

is 18.

Calculate the Tier II LMCATV using one of the following equations:

Tier II LMCATV = FAV / SACR

Tier II LMCATV = SAV / FACR

Tier II LMCATV = SAV / SACR

Where:

the SAV equals 2 times the value of the Tier II LMAATV

calculated in Section 302.563

If, for a commercially or recreationally important species, the SMCV is

lower than the calculated Tier II LMCATV, then the SMCV must be

used as the Tier II LMCATV.

(Source: Amended at 23 Ill. Reg. _________, effective ______________________.)

Section 302.580 Procedures for Deriving Water Quality Criteria and Values in the Lake

Michigan Basin to Protect Human Health-General

The Lake Michigan Basin human health criteria or values for a substance are

those concentrations at which humans are protected from adverse effects

resulting from incidental exposure to, or ingestion of, the waters of Lake

Michigan and from ingestion of aquatic organisms taken from the waters of

(LMHHTC) or Lake Michigan Human Health Threshold Value (LMHHTV)

will be calculated for all substances according to Section 302.585, if data is

carcinogenic to humans will also be calculated according to procedures for the

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

Minimum data requirements for

criteria:

For all organic chemicals, either a field-measured BAF or a BAF

chemical has a BAF less than 125, then a BAF derived by any

methodology is required; and

For all inorganic chemicals, including organometals such as

BCF is required.

bioaccumulation factor method in Section 302.570(a) may

be used to derive a Tier II criterion

(Source: Amended at 23 Ill. Reg. _________, effective ______________________.)

TITLE 35 ENVIRONMENTAL PROTECTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 309

SUBPART A: NPDES PERMITS

Section

Preamble

309.102

309.103

Application - General

Renewal

309.105

Authority to Deny NPDES Permits

309.106

Access to Facilities and Further Information

309.107

Distribution of Applications

309.108

Tentative Determination and Draft Permit

309.109

Public Notice

309.110

Contents of Public Notice of Application

309.111

Combined Notices

309.112

Agency Action After Comment Period

309.113

Fact Sheets

309.114

Notice to Other Governmental Agencies

309.115

Public Hearings on NPDES Permit Applications

309.116

Notice of Agency Hearing

309.117

Agency Hearing

309.118

Agency Hearing File

309.119

Agency Action After Hearing

309.141

Terms and Conditions of NPDES Permits

309.142

Water Quality Standards and Waste Load Allocation

309.143

Effluent Limitations

309.144

Federal New Source Standards of Performance

309.145

Duration of Permits

309.146

Authority to Establish Recording, Reporting, Monitoring and Sampling

Requirements

309.147

Authority to Apply Entry and Inspection Requirements

309.148

Schedules of Compliance

309.149

Authority to Require Notice of Introduction of Pollutants into Publicly

Owned Treatment Works

309.150

Authority to Ensure Compliance by Industrial Users with Sections

204(b), 307 and 308 of the Clean Water Act

309.151

Maintenance and Equipment

309.152

Toxic Pollutants

309.153

Deep Well Disposal of Pollutants (Repealed)

309.154

Authorization to Construct

309.155

Sewage Sludge Disposal

309.156

Total Dissolved Solids Reporting and Monitoring

309.181

Appeal of Final Agency Action on a Permit Application

309.182

Authority to Modify, Suspend or Revoke Permits

309.183

Revision of Schedule of Compliance

309.184

Permit Modification Pursuant to Variance

309.185

Public Access to Information

309.191

Effective Date

SUBPART B: OTHER PERMITS

Section

309.201

Preamble

309.202

Construction Permits

Operating Permits; New or Modified Sources

309.204

309.205

Joint Construction and Operating Permits

Experimental Permits

309.207

309.208

Permits for Sites Receiving Sludge for Land Application

Applications - Contents

309.222

309.223

Applications - Registered or Certified Mail

Applications - Time to Apply

309.225

309.241

Standards for Issuance

Duration of Permits Issued Under Subpart B

309.243

309.244

Appeals from Conditions in Permits

Permit No Defense

309.262

309.263

Modification of Permits

Permit Revocation

309.265

309.266

Procedures

Effective Date

309.282

Appendix A

References to Previous Rules

Environmental Protection Act [415 ILCS 5/13, 13.3 and 27].

SOURCE: Adopted in R71-14, at 4 PCB 3, March 7, 1972; amended in R73-11, 12, at 14

20, 1977; amended in R73-11, 12, at 29 PCB 477, at 2 Ill. Reg. 16, p. 20, effective April 20,

1978; amended in R79-13, at 39 PCB 263, at 4 Ill. Reg. 34, p. 159, effective August 7, 1980;

in R76-21, at 44 PCB 203, at 6 Ill. Reg. 563, effective December 24, 1981; codified at 6 Ill.

Reg. 7818; amended in R82-5, 10, at 54 PCB 411, at 8 Ill. Reg. 1612, effective January 18,

at 13 Ill. Reg. 5993, effective April 18, 1989; amended in R88-21(A) at 14 Ill. Reg. 2892,

effective February 13, 1990; amended in R91-5 at 16 Ill. Reg. 7339, effective April 27, 1992;

Reg. _________, effective ______________________.

SUBPART A: NPDES PERMITS

Section 309.141

Terms and Conditions of NPDES Permits

In establishing the terms and conditions of each issued NPDES Permit, the Agency shall apply

and ensure compliance with all of the following, whenever applicable:

Effluent limitations under SectionsSection 301 and 302 of the CWA;

Standards of performance for new sources under Section 306 of the CWA;

Effluent standards, effluent prohibitions, and pretreatment standards under

Section 307 of the CWA;

Any more stringent limitation, including those:

necessary to meet water quality standards, treatment standards, or

schedules of compliance, established pursuant to any Illinois statute or

regulation (under authority preserved by Section 510 of the CWA),

necessary to meet any other federal law or regulation, or

required to implement any applicable water quality standards; such

limitations to include any legally applicable requirements necessary to

implement total maximum daily loads established pursuant to Section

303(d) of the CWA and incorporated in the continuing planning process

approved under Section 303(e) of the CWA and any regulations or

guidelines issued pursuant thereto;

Any more stringent legally applicable requirements necessary to comply with a

plan approved pursuant to Section 208(b) of the CWA;

Prior to promulgation by the Administrator of the U.S. Environmental

Protection Agency of applicable effluent standards and limitations pursuant to

Sections 301, 302, 306 and 307 of the CWA, such conditions as the Agency

determines are necessary to carry out the provisions of the CWA

; and

If the NPDES Permit is for the discharge of pollutants into navigable waters

from a vessel or other floating craft (except that no NPDES Permit shall be

issued for the discharge of pollutants from a vessel or other floating craft into

Lake Michigan) any applicable regulations promulgated by the Secretary of the

Department in which the Coast Guard is operating, establishing specifications

for safe transportation, handling, carriage, storage and stowage of pollutants;

and.

Section 309.141(f) was declared invalid in Peabody Coal Co. v. PCB, 3 Ill. App. 3d 5 (5th

1977).

If the NPDES Permit is for the discharge of pollutants from other than wet

weather point sources into the Lake Michigan Basin as defined at 35 Ill. Adm.

(TMDLs) and Waste Load Allocation

(WLA) will be established through either the LaMP or a RAP for an

adopted, effluent limits shall be established consistent with the other

provisions of this Section, including, but not limited to,

Intake Pollutants, Loading Limits, Level of Detection/Level of

Quantification and Compliance Schedules. When calculation of TMDLs

established through other provisions will be superseded upon completion

of the TMDL or Waste Load Allocation process, those limits shall be

triggered by completion of a TMDL or WLA determination. Any new

limits brought about through exercise of the reopener clause shall be

consistent with Section 39(b) of the Act [415 ILCS 5/39(b)], 35 Ill.

Adm. Code 309.148, and 35 Ill. Adm. Code 352.Subpart H.

35 Ill. Adm. Code 302.590 establishes an acceptable risk level of one in

100,000 (10(-5)) for establishing Tier I criteria and Tier II values for

nonthreshold toxic mechanism. For those discharges containing multiple

nonthreshold substances application of this additive standard shall be

For discharges in the Lake Michigan basin containing one or

2,3,7,8-substituted dibenzofurans, the tetrachloro dibenzo-p-

(TEC

TCDD

(h)(2)(B).

determine the 2,3,7,8-TCDD toxicity equivalence concentrations

using the following equation:

TCDD

= Sigma(C) (TEF)

WHERE:

(TEC)

TCDD

= 2,3,7,8-TCDD toxicity equivalence

concentration in effluent

(C)

= Concentration of total chemical x in effluent

(TEF)

= TCDD toxicity equivalency factor for x

(BEF)

- TCDD bioaccumulation equivalency factor for x

TABLE

Congener

TEF

BEF

2,3,7,8-TCDD

1.0

1,2,3,7,8-PeCdd

0.5

0.9

1,2,3,4,7,8-HxCDD

0.1

0.3

1,2,3,6,7,8-HxCDD

0.1

1,2,3,7,8,9-HxCDD

0.1

1,2,3,4,6,7,8-HpCDD

0.01

0.05

OCDD

0.001

0.01

2,3,7,8-TCDF

0.1

0.8

1,2,3,7,8-PeCDF

0.05

0.2

2,3,4,7,8-PeCDF

0.5

1.6

1,2,3,4,7,8-HxCDF

0.1

0.08

1,2,3,6,7,8-HxCDF

0.1

0.2

2,3,4,6,7,8-HxCDF

0.1

0.7

1,2,3,7,8,9-HxCDF

0.1

0.6

1,2,3,4,6,7,8-HpCDF

0.01

1,2,3,4,7,8,9-HpCDF

0.01

0.4

OCDF

0.001

0.02

Any combination of carcinogenic or otherwise nonthreshold toxic

substances shall be assessed on a case by case basis. The Agency

shall only consider such additivity for chemicals that exhibit the

same type of effect and the same mechanism of toxicity, based on

available scientific information that supports a reasonable

assumption of additive effects.

3) Conversion factors for determining the dissolved concentration of metals

from the total recoverable concentration.

The numeric standards for certain metal parameters in 35 Ill.

Adm. Code 302.504 are established as dissolved forms of the

substance since the dissolved form more closely relates to the

toxicology literature utilized in deriving the standard. However,

most discharge monitoring data used in deriving a PEQ will be

from a total recoverable analytical method and permit limits if

and when established will be set at total recoverable to

accommodate the total recoverable analytical method. The

Agency will use a conversion factor to determine the amount of

water quality standard set at dissolved concentration. In the

absence of facility specific data the following default conversion

WQBELs. The conversion factor represents the portion of the

total recoverable metal presumed to be in dissolved form. The

the appropriate total recoverable metal concentration to obtain a

corresponding dissolved concentration that then may be compared

may be divided by the conversion factor to obtain a

corresponding total metal value that will generally be the metal

Metal

Conversion Factor

Arsenic

1.000

Cadmium

0.850

Chromium (Trivalent)

0.316

Chromium (Hexavalent)

0.962

Copper

0.960

Mercury

0.850

Nickel

0.997

Selenium

0.922

Zinc

0.986

particular site specific application. The request must contain

sufficient site specific data, or other data that is representative of

to the total recoverable fraction of the metal in the receiving

water body at the edge of the mixing zone. If a site specific

derivation and establishment of a WQBEL in lieu of its default

counterpart in subsection (h)(3)(A).

Reasonable potential to exceed.

the water quality standard exists for any particular pollutant

parameter is the estimation of the maximum expected effluent

completed for both acute and chronic exposure periods and is

termed the PEQ. The PEQ shall be derived from representative

facility specific data to reflect a 95 percent confidence level for

the 95th percentile value. These data will be presumed to adhere

to a lognormal distribution pattern unless the actual effluent data

demonstrates a different distribution pattern. If facility specific

data in excess of 10 data values is available, a coefficient of

variation that is the ratio of the standard deviation to the

arithmetic average shall be calculated by the Agency. The PEQ is

derived as the upper bound of a 95 percent confidence bracket

around the 95th percentile value through a multiplier from the

following table applied to the maximum value in the data set that

has its quality assured consistent with 35 Ill. Adm. Code 352.410

as appropriate for acute and chronic data sets.

PEQ = (maximum data point)(statistical multiplier)

Coefficient of Variation

No.

Samples

0.1

0.2

0.3

0.4

0.5

0.6

0.7

0.8

0.9

1.0

1.1

1.2

1.3

1.4

1.9

2.6

3.6

4.7

6.2

8.0

10.1

12.6

15.5

18.

22.3

26.4

1.3

1.6

2.0

2.5

3.1

3.8

4.6

5.4

6.4

7.4

8.5

9.7

10.9

1.2

1.5

1.8

2.1

2.5

3.0

3.5

4.0

4.6

5.2

5.8

6.5

7.2

1.2

1.4

1.7

1.9

2.2

2.6

2.9

3.3

3.7

4.2

4.6

5.0

5.5

1.2

1.4

1.6

1.8

2.1

2.3

2.6

2.9

3.2

3.6

3.9

4.2

4.5

1.1

1.3

1.5

1.7

1.9

2.1

2.4

2.6

2.9

3.1

3.4

3.7

3.9

1.1

1.3

1.4

1.6

1.8

2.0

2.2

2.4

2.6

2.8

3.1

3.3

3.5

1.1

1.3

1.4

1.6

1.7

1.9

2.1

2.3

2.4

2.6

2.8

3.0

3.2

1.1

1.2

1.4

1.5

1.7

1.8

2.0

2.1

2.3

2.4

2.6

2.8

2.9

1.1

1.2

1.3

1.5

1.6

1.7

1.9

2.0

2.2

2.3

2.4

2.6

2.7

1.1

1.2

1.3

1.4

1.6

1.7

1.8

1.9

2.1

2.2

2.3

2.4

2.5

1.1

1.2

1.3

1.4

1.5

1.6

1.7

1.9

2.0

2.1

2.2

2.3

2.4

1.1

1.2

1.3

1.4

1.5

1.6

1.7

1.8

1.9

2.0

2.1

2.2

2.3

1.1

1.2

1.3

1.4

1.5

1.6

1.7

1.8

1.9

2.0

2.1

2.2

1.1

1.2

1.3

1.4

1.5

1.6

1.7

1.8

1.9

2.0

2.1

1.1

1.2

1.3

1.4

1.5

1.6

1.7

1.8

1.9

2.0

1.1

1.2

1.3

1.4

1.5

1.6

1.7

1.8

1.9

1.1

1.2

1.3

1.4

1.5

1.6

1.7

1.8

1.9

1.1

1.2

1.3

1.4

1.5

1.6

1.7

1.8

1.1

1.2

1.3

1.4

1.5

1.6

1.7

1.0

1.1

1.2

1.3

1.4

1.0

1.1

1.2

1.0

1.1

60 or

greater

1.0

If the PEQ is less than or equal to the water quality

standard, there is no reasonable potential and no limit will

be established in the permit.

ii)

If the PEQ is more than the water quality standard, the

Agency will proceed to consideration of dilution and

mixing pursuant to subsection (h)(5).

If facility-specific data of 10 or less data values is available, an

alternative PEQ shall be derived using the table in subsection

(h)(4)(A) assuming a coefficient of variation of 0.6, applied to

the maximum value in the data set that has its quality assured

consistent with 35 Ill. Adm. Code 352.410.

If the PEQ is less than or equal to the water quality

standard, there is no reasonable potential and no limit will

be established in the permit.

ii)

If the PEQ exceeds the water quality standard, an

alternative PEQ will be calculated using the maximum

value in the data set and a multiplier of 1.4. If the

alternative PEQ also exceeds the water quality standard,

the Agency will proceed to consider dilution and mixing

pursuant to subsection (h)(5).

iii)

If the PEQ exceeds the water quality standard but the

alternative PEQ is less than or equal to the standard, the

Agency will either proceed to consider dilution and

mixing pursuant to subsection (h)(5), or will incorporate a

monitoring requirement and reopener clause to reassess

the potential to exceed within a specified time schedule,

not to exceed one year. In determining which of these

options to use in any individual application, the Agency

shall consider the operational and economic impacts on

the permittee and the effect, if any, deferral of a final

decision would have on an ultimate compliance schedule

if a permit limit were subsequently determined to be

necessary.

The Agency shall compare monthly average effluent data values,

when available, with chronic aquatic life, human health and

wildlife standards to evaluate the need for monthly average

WQBELs. The Agency shall use daily effluent data values to

determine whether a potential exists to exceed acute aquatic life

water quality standards.

The Agency may apply other scientifically defensible statistical

methods for calculating PEQ for use in the reasonable potential

analysis as provided for in Procedure 5.b.2 of Appendix F to 40

CFR 132, incorporated by reference at 35 Ill. Adm. Code

301.106.

Regardless of the statistical procedure used, if the PEQ for the

parameter is less than or equal to the water quality standard for

that parameter, the Agency shall deem the discharge not to have a

reasonable potential to exceed, and a water quality based effluent

limit (WQBEL) shall not be required unless otherwise required

under 35 Ill. Adm. Code 352.430.

If the PEQ for a parameter is greater than the particular water quality

standard, criteria or value for that parameter, the Agency will assess the

level of treatment being provided by the discharger. If the discharger is

providing (or will be providing) a level of treatment consistent with the

best degree of treatment required by 35 Ill. Adm. Code 304.102(a), the

PEQ derived under subsection (h)(4) shall be compared to a preliminary

effluent limitation (PEL) determined by applying an appropriate mixing

zone or a default mixing zone to the discharge. Mixing opportunity and

dilution credit will be considered as follows:

Discharges to tributaries of the Lake Michigan Basin shall

be considered to have no available dilution for either acute

or chronic exposures, and the PEL will be set equivalent

to the water quality standard unless dilution is documented

through a mixing zone study.

B) Bioaccumulative chemicals of concern (BCCs):

i) No mixing shall be allowed for new discharges of

BCCs commencing on or after December 24, 1997.

The PEL will be set equivalent to the water quality

standard.

ii) Mixing shall be allowed for discharges of BCCs

which existed as of December 24, 1997 in

accordance with the requirements of 35 Ill. Adm.

Code 302.530.

shall have a default mixing allowance of 2:1 for acute

standards, criteria or values and 10:1 for chronic

indicates that the effluent readily and rapidly mixes with

the receiving waters. If ready and rapid mixing is in doubt

allowance and require a mixing or dispersion study to

determine the proper dilution allowance. If the discharger

allowance, it must submit a mixing or dispersion study to

justify its request. Whenever a mixing or dispersion study

is available, it shall be used to determine dilution or

mixing allowance in lieu of the default allowance.

6) Preliminary effluent limitations calculations.

(A) The preliminary effluent limitation (PEL) is calculated in a

simple mass balance approach reflecting the dilution allowance

established in subsection (h)(5):

WQS = [(Qe)(PEL) + (Qd)(Cd)] / [Qe + Qd] or

PEL = [WQS(Qe + Qd) - (Qd)(Cd)] / Qe

WHERE:

WQS = applicable water quality standard, criteria or value

Qe = effluent flowrate

Qd = allowable dilution flowrate

Cd = background pollutant concentration in dilution water

B) The representative background concentration of pollutants to

develop TMDLs and WLAs calculated in the absence of a TMDL

shall be established as follows:

i) "Background" represents all pollutant loadings,

specifically loadings that flow from upstream waters into

the specified watershed, water body, or water body

segment for which a TMDL or WLA in the absence of a

TMDL is being developed and enter the specified

watershed, water body, or water body segment through

atmospheric deposition, chemical reaction, or sediment

release or resuspension.

(ii)

use in calculating background, the Agency shall use its

best professional judgment, including consideration of the

comparison, in part, to detection and quantification levels.

When data in more than 1 of the data sets or categories

professional judgment shall be used to select the data that

most accurately reflects or estimates background

information may be considered when using pollutant

loading data to estimate a water column concentration.

The representative background concentration for a pollutant

segment shall be established on a case-by-case basis as the

geometric mean of: acceptable water column data; water

caged or resident fish tissue data; or water column

concentrations estimated through the use of acceptable or

geometric mean of the data for a pollutant that includes

values both above and below the detection level, commonly

data. If all of the acceptable data in a data set are below the

detection level for a pollutant, then all the data for the

Water quality based effluent limitations.

If the PEQ is less than or equal to the PEL, it will be concluded

that there is no reasonable potential to exceed. Under such

unless otherwise justified under one or more provisions of 35 Ill.

Adm. Code 352.430.

If the PEQ is equal to or greater than the PEL, and the PEQ was

calculated using a data set of more than 10 values, a water quality

permit. If the PEQ was calculated using a data set of less than or

equal to 10 values, and the alternative PEQ calculated under

included in the permit.

If the PEQ was calculated using a data set of less than or equal to

10 values, and the PEQ is greater than the PEL but the

alternative PEQ is less than the PEL, the Agency will either

establish a WQBEL in the permit or incorporate a monitoring

requirement and reopener clause to reassess potential to exceed

within a specified time schedule, not to exceed one year. In

determining which of these options to use in any individual

application, the Agency shall consider the operational and

economic impacts on the permittee and the effect, if any, deferral

of a final decision would have on an ultimate compliance

schedule if a permit limit were subsequently determined to be

necessary.

The WQBEL will be set at the PEL, unless the PEL is

appropriately modified to reflect credit for intake pollutants when

the discharged water originates in the same water body to which

it is being discharged. Consideration of intake credit will be

limited to the provisions of 35 Ill. Adm. Code 352.425.

The reasonable potential analysis shall be completed separately

for acute and chronic aquatic life effects. When WQBELs are

based on acute impacts, the limit will be expressed as a daily

maximum. When the WQBEL is based on chronic effects, the

limit will be expressed as a monthly average. Human health and

wildlife based WQBELs will be expressed as monthly averages.

If circumstances warrant, the Agency shall consider alternatives

to daily and monthly limits.

(Source: Amended at 23 Ill. Reg. _________, effective ______________________.)

IT IS SO ORDERED.

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

the above opinion and order was adopted on the 17th day of June 1999 by a vote of 7-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board