R94-1A.DOC

ILLINOIS POLLUTION CONTROL BOARD

May 16, 1996

IN THE MATTER OF:

)

TRIENNIAL WATER QUALITY REVIEW

)

R94-1(A)

AMENDMENTS TO 35 ILL. ADM. CODE

)

(Rulemaking - Water)

302.208 and 302.407 (Lead and Mercury)

)

Adopted Rule Final Order

OPINION AND ORDER OF THE BOARD (by E. Dunham, C.A. Manning, and R.C. Flemal):

This matter comes before the Board on a regulatory proposal filed on February 24, 1994

by the Illinois Environmental Protection Agency (Agency). The Agency filed the proposal as

part of its mandatory review of the applicable water quality standards of the State of Illinois

pursuant to 33 U.S.C. §§ 1251-1387 (1987)

. On January 4, 1996, the Board severed the docket

into subdockets A & B.

By today’s order the Board adopts the proposed amendments to the lead

and mercury standards as final rules.

The Board's responsibility in this matter arises from the Environmental Protection Act.

The Board is charged therein to "determine, define, and implement the environmental control

standards applicable in the state of Illinois." (415 ILCS 5/5(b) (1994).) More generally, the

Board's rulemaking charge is based on the system of checks and balances integral to the Illinois

environmental governance: the Board bears responsibility for the rulemaking and principal

adjudicatory functions; the Agency has primary responsibility for administration of the Act and

the Board's regulations. The latter includes administering today's proposed amendments.

Today the Board adopts the amendments as final and sends the amendments to the

Administrative Code division of the Office of Secretary of State for publication and assignment of

an effective date pursuant to Section 5 of the Illinois Administrative Procedure Act (5 ILCS

100/5-40(d)).

PROCEDURAL HISTORY

The Federal Water Pollution Control Act, commonly known as the Clean Water Act (CWA), §§

101-607 requires the Agency to periodically, but at least every three years, review the water quality

standards applicable in the State. This review is commonly referred to as the "triennial review".

Subdocket (A) is comprised of the amendments proposed by the Agency for lead and

mercury (Sections 302.208 and 302.407). Subdocket (B) contains the amendments proposed by

the Agency for ammonia nitrogen (Sections 302.202, 302.212, 302.213, 304.122 and 304.301).

The proposed amendments were filed by the Agency pursuant to Section 27 of the

Environmental Protection Act (Act) (415 ILCS 5/27 (1994)) and the Board's procedural rules at

35 Ill. Adm. Code §§ 102.120 and 102.121. By order of May 5, 1994 accepted the Agency

proposal as a federally required rule pursuant to Section 28.2 of the Act.

By order of September 15, 1994 the Board adopted the Agency's proposal for purposes of

first notice, pursuant to Section 5.01 of the Illinois Administrative Procedure Act. (415 ILCS

100/1005-40). The Board adopted the proposal without making substantive comment on the

merits of the proposal. First notice publication occurred in the Illinois Register on September 30,

1994 at 18 Ill. Reg. 14555 (Part 302) and 18 Ill. Reg. 14549 (Part 304). The Illinois

Administrative Procedure Act requires that adoption of the rule occur within one year of the first

notice publication. (5 ILCS 5/40(e) (1994).)

As the one-year time period had already elapsed, the Board sent part of the rulemaking

back to first notice. The proposed amendments to the lead and mercury standards were published

in the Illinois Register on January 26, 1996 at 20 Ill. Reg. 1445. The Board did not receive any

comments during the 45 day comment period that followed publication of the proposed

amendments in the Illinois Register. On April 21, 1996 the Board adopted the proposal for

second notice. On March 23, 1996, the Joint Committee on Administrative Rules voted no

objection to adoption of the amendments.

Three public hearings in this matter were held before hearing officer Diane O'Neill: on

November 10, 1994 in Chicago, Illinois; on November 22, 1994 in Springfield, Illinois; and on

January 26, 1995 in Chicago, Illinois. At hearing the Board received testimony in support of the

proposal from the Agency, as well as testimony on various aspects of the proposal from interested

persons. The hearing record pertaining to lead, mercury and non-ammonia matters is

summarized below.

SUMMARY OF THE RECORD BEFORE THE BOARD IN DOCKET A

The principal provisions of the instant proposed amendments are revision of the Board's

General Use Water Quality Standards for lead, mercury, and ammonia nitrogen, as found at 35

Ill. Adm. Code 302.208 and 302.212, and modification of the ammonia effluent exception

procedures at 35 Ill. Adm. Code 304.122 and 304.301. The proposal also contains several

conforming and housekeeping amendments.

The Board summarizes the proposal submitted by the Agency along with the record

developed to date in this matter as they pertain to lead and mercury standards.

Overview of the Proposal-Subdocket A

Lead: General Use Water Quality Standard; Among its General Use Water Quality

Standards, the Board currently has an acute standard (AS) for lead found at 35 Ill. Adm. Code

302.208. The General Use Water Quality Standards currently do not specify a chronic standard

(CS) for lead.

Pursuant to today's proposal, the AS for lead would be modified to reflect updated aquatic

toxicity data regarding lead, and a CS for lead would be added. In both cases, the lead standards

would be expressed as functions of hardness.

Mercury: General Use AS and CS Water Quality Standards; The Board currently has a

mercury AS among its General Use Water Quality Standards. Today's proposal would change

that AS from 0.5 ug/L to 2.6 ug/L, based upon the most recent aquatic life toxicity information

regarding mercury. Today's action would also add, for the first time, a CS for mercury at a

value of 1.3 ug/L.

Human Health Water Quality Standards; Today's action proposes, for the first time in the

Board's General Use Water Quality standards, a human health standard (HHS)

. Only one such

standard is today proposed, that being for mercury at new subsection (f) of 35 Ill. Adm. Code

302.208. The value proposed for the mercury HHS is 0.012ug/L, which is lower than the

currently existing AS for mercury at Section 302.208. New text is also proposed at new

302.208(c) and 302.208(e)(3) to support the human health standard.

Conforming and Housekeeping Amendments; There are several places in the sections

which are today opened for other purposes where housekeeping corrections are in order. Among

these are updating citations to the Illinois Compiled Statues to the current (1994) edition and

replacement of the preferred abbreviation of the word "liter" from "l" to "L".

The Agency's proposal amends the STORET number for un-ionized ammonia (as N)

found at 35 Ill. Adm. Code 302.407. As the Agency observes, the STORET number currently

found at Section 302.407 for un-ionized ammonia (as N) is actually the number for un-ionized

ammonia (as NH

). The Board corrects the STORET number in Section 302.407 in today's order.

At hearing on November 22, 1994 the Agency submitted an errata sheet correcting

typographical errors that appeared in the proposed amendments as first noticed. These, along

with similar changes suggested by the Administrative Code Division in Public Comment #25,

have been incorporated into today's proposal.

The Board observes that human health criteria, pursuant to 35. Ill. Adm. Code 302.Subpart F,

have been a feature of the Board's water quality regulations since 1990. (See also Amendments to

Title 35 Subtitle C (Toxics Control), R88-21, final opinion and order of the Board, January 25, 1990.)

HEARING RECORD

Agency Witnesses - Mosher; The testimony of Mr. Mosher focused on the technical

justification for the proposed new water quality standards, and on the anticipated economic

impact of the new water quality standards.

As regards the lead standards, Mr. Mosher testified that the Agency's proposed numbers

have been tailored to Illinois conditions but remain consistent with the national criteria for lead.

(Tr1. at 22.) Mr. Mosher observed that there is some controversy over the existing NCD for

lead

associated with the nature of the species that control the chronic lead standard, inability of

analytic techniques to accurately measure low lead values, and the absence of approved test

methodology for the most toxic forms of lead. (Mosher at 24.) In view of these and other

problems, the Agency believes that Illinois-specific lead standards are justified and achievable.

Mr. Mosher testified:

The Agency concludes that the proposed chronic criterion for lead is most

suitable for use in Illinois in that it is driven by native aquatic organisms

. . . and the degree of safety factoring is held to an appropriate level because of

the improved methodology. This criterion is more in line with observations in

Illinois streams in that violations of the chronic standard will not routinely occur in

streams supporting high quality biota. . . With the establishment of a chronic

standard, the acute standard cap is no longer necessary. The proposed acute

standard is very similar to the existing standard without the cap. (Mosher at 28.)

As regards the proposed new mercury standards, Mr. Mosher observed that the existing

mercury water quality standard (0.5 ug/L) is based on human health considerations, even though

it is identified in the regulations as a standard for the protection of aquatic life (an AS). (Mosher

at 19.) At this juncture in time, sufficient information is available to promulgate aquatic

protection standards that are truly based on aquatic life conditions. Accordingly, the Agency

recommends that this step now be taken (Tr1. at 22), and additionally that the current 0.5 ug/L

standard be properly recognized in the regulations as a HHS.

The existing acute standard was set lower than levels of mercury which actually cause

effects to aquatic life. (Mosher at 21.) This was done in part to limit the total amount of mercury

that could be discharged because of the lack of a chronic or HHS standard. (Mosher at 21.) The

Agency now proposes to update this standard and others for chronic toxicity protection of aquatic

life and protection of human health through the prevention of fish flesh contamination. (Mosher

at 21.) The Agency recommends that adoption of the NCD acute and chronic criteria and

proposes the NCD chronic criterion protective of bioaccumulation in fish flesh as a HHS.

(Mosher at 21.)

This document is Exhibit J to the Agency's proposal of February 24, 1994.

The Agency believes that the economic impact resulting from the proposed lead and

mercury standards will be minimal. (Mosher at 37.) No additional treatment for lead is believed

to be required as a result of this rulemaking. (Mosher at 37.) The few dischargers in Illinois with

lead limits in their permits are utilizing the best degree of treatment and are not expected to have

trouble meeting the new standard. (Mosher at 37.) Mercury dischargers are rare and the new

standards will have the most potential impact by encouraging pollution prevention. (Mosher at

37.) Dischargers with mercury limits will be required to utilize the best analytical methods to

detect mercury at levels as low as possible. (Mosher at 38.) This may result in some minor

additional expense. (Mosher at 38.)

Public Comments

The Board received 25 public comments on the Agency’s proposal. The origin and

content of those public comments pertaining to the mercury and lead standards are summarized in

this section.

PC #1:

By Linda Brand, Manager of Regulatory Flexibility Unit, Illinois Department of

Commerce and Community Affairs: a review of the proposed amendments found

no impact on small businesses. Filed 10/5/94.

PC #11:

The Sierra Club, Illinois Chapter of Trout Unlimited, Citizens for a Better

Environment, Lake Michigan Federation, and Friends of the Chicago River, by

Albert F. Ettinger; supports adoption of proposed standards for mercury and

lead. Filed 3/10/95.

PC #12:

By Jeffrey Flocken, Lake Michigan Federation; supports the proposed standards.

Mr. Flocken sites the health effects of mercury. Filed 3/10/95.

PC #25:

By the Index Department of the Administrative Code Division of the Office of

the Secretary of State; notes corrections that must be made to the text of the rule

before the rule can be adopted. The Board today makes the suggested corrections

to the text. Filed 11/7/94.

DISCUSSION

The Board believes that the Agency has adequately demonstrated that the water quality

standards it recommends for lead and mercury are justifiable and necessary for the protection of

aquatic life in Illinois. The Board accordingly today proposes adoption of these standards as

recommended by the Agency as a final rule.

ORDER

The Board hereby directs that the following amendments be submitted to the Secretary of

State for final notice pursuant to Section 5-40 of the Illinois Administrative Procedure Act:

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 Choliform

302.210

Other Toxic Substances

302.211

Temperature

302.212

Ammonia Nitrogen and Un-ionized 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 WATER

QUALITY STANDARDS

Section

302.501

Scope and Applicability

302.502

Dissolved Oxygen

302.503

302.504

Chemical Constituents

302.505

Fecal Coliform

302.506

Temperature

302.507

Existing Sources on January 1, 1971

302.508

Sources under Construction But Not in Operation on January 1, 1971

302.509

Other Sources

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 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 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 in R87-27 at 12 Ill. Reg. 9911, effective

May 27, 1988; amended at in 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.____________________, effective

_____________________________________.

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

1994.

SUBPART B: GENERAL USE WATER QUALITY STANDARDS

Section 302.208 Numeric Standards for Chemical Constituents

The acute standard (AS) for the chemical constituents listed in subsection (de) shall

not be exceeded at any time except as provided in subsection (cd).

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

shall not be exceeded by the arithmetic average of at least four consecutive samples

collected over any period of at least four days, except as provided in subsection

(cd). The samples used to demonstrate compliance or lack of compliance with a

CS must be collected in a manner which assures an average representative of the

sampling period.

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

(f) shall not be exceeded when the stream flow is at or above the harmonic mean

flow pursuant to Section 302.658 nor shall an annual average, based on at least

eight samples, collected in a manner representative of the sampling period, exceed

the HHS except as provided in subsection (d).

In waters where mixing is allowed pursuant to Section 302.102, the following

apply:

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

which the Agency has approved a ZID pursuant to Section 302.102.;

The CS shall not be exceeded outside of waters in which mixing is allowed

pursuant to Section 302.102.

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

allowed pursuant to Section 302.102.

Numeric Water Quality Standards for the Protection of Aquatic Organisms

Constituent

Storet

Number

(ug/L)

Arsenic

(total)

01002

360

190

Cadmium

(total)

01027

exp[A+Bln(H)], but

not to exceed 50

ug/L, where

A=-2.918 and

B=1.128

exp [A+Bln(H)]

where A=-3.490

and B=0.7852

Chromium (total

hexavalent)

01032

Chromium (total

trivalent)

01033

exp[A+Bln(H)]

where A=3.688

and B=0.8190

exp[A+Bln(H)]

where A=1.561

and B=0.8190

Copper

(total)

01042

exp[A+Bln(H)]

where A=-1.464

and B=0.9422

exp[A+Bln(H)]

where A=-1.465

and B=0.8545

Cyanide

00718

5.2

Lead

(total)

01051

exp[A+Bln(H)]

but not to

exceed 100 ug/L

where A=-1.460

-1.301 and B=1.273

Not Applied

exp[A+Bln(H)],

where A=-2.863

and B=1.273

Mercury

71900

0.5 2.6

Not Applied

1.3

TRC

500600

where:

ug/L =

microgram per liter,

exp[x] =

base neutral logarithms raised to the x- power, and

ln(H)

natural logarithm of Hardness (STORET 00900).

Numeric Water Quality Standard for the Protection of Human Health

Constituent

STORET

Number

(ug/L)

Mercury

71900

0.012

where ug/L = micrograms per liter

ge)

Concentrations of the following chemical constituents shall not be exceeded except

in waters for which mixing is allowed pursuant to Section 302.102.

Constituent

Unit

STORET

Number

Standard

Barium (total)

mg/L

01007

5.0

Boron (total)

mg/L

01022

1.0

Chloride (total)

mg/L

00940

500.

Fluoride

mg/L

00951

1.4

Iron (dissolved)

mg/L

01046

1.0

Manganese (total)

mg/L

01055

1.0

Nickel (total)

mg/L

01067

1.0

Phenols

mg/L

32730

0.1

Selenium (total)

mg/L

01147

1.0

Silver (total)

ug/L

01077

5.0

Sulfate

mg/L

00945

500.

Total Dissolved

Solids

mg/L

70300

1000.

Zinc (total)

mg/L

01092

1.0

where: mg/L =

milligram per liter and

ug/L =

microgram per liter

(Source: Amended at 20 Ill. Reg. __________, effective )

Section 302.407 Chemical Constituents

Concentrations of other chemical constituents shall not exceed the following standards:

STORET

CONCENTRATIO

CONSTITUENTS

NUMBER

(mg/lL)

Ammonia Un-ionized (as N*)

006192

0.1

Arsenic (total

01002

1.0

Barium (total)

01007

5.0

Cadmium (total)

01027

0.15

Chromium (total hexavalent)

01032

0.3

Chromium (total trivalent)

01033

1.0

Copper (total)

01042

1.0

Cyanide (total)

00720

0.10

Fluoride (total)

00951

15.0

Iron (total)

01045

2.0

Iron (dissolved)

01046

0.5

Lead (total)

01051

0.1

Manganese (total)

01055

1.0

Mercury (total)

71900

0.0005

Nickel (total)

01067

1.0

Oil, fats and grease

00550, 00556

or 00560

15.0**

Phenols

32730

0.3

Selenium (total)

001147

1.0

Silver

01077

1.1

Zinc (total)

01092

1.0

Total Dissolved Solids

70300

1500

*For purposes of this section the concentration of un-ionized ammonia shall be computed

according to the following equation:

U = N where:

[0.94412(1 + 10

) + 0.0559]

X = 0.09018 + 2729.92 - pH

(T + 273.16)

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

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

T = Temperature in degrees Celsius

**Oil shall be analytically separated into polar and non-polar components if the total

concentration exceeds 15 mg/lL. In no case shall either of the components exceed 15 mg/lL

(i.e., 15 mg/lL polar materials and 15 mg/lL non-polar materials).

(Source: Amended at 20 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 day of ______________, 1996, by a vote

of .

__________________________

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board