ILLINOIS POLLUTION CONTROL BOARD
January 4, 1996
IN THE MATTER OF:
)
)
TRIENNIAL WATER QUALITY REVIEW:
) R94-1(A) & (B)
AMENDMENTS TO 35 ILL. ADM. CODE
) (Rulemaking - Water)
302.202, 302.208, 302.212, 302.213, )
302.407, 304.122 and 304.301 (Lead, )
Mercury and Ammonia Nitrogen)
)
Proposed Rule Second First Notice
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)
1
.
By today's order the Board severs the docket into subdockets A & B. Subdocket (A) will
contain the amendments proposed by the Agency for lead and mercury (Sections 302.208 and
302.407). Subdocket (B) will contain the amendments proposed by the Agency for ammonia nitrogen
(Sections 302.202, 302.212, 302.213, 304.122 and 304.301). Today's order also sends the
proposed amendments to the lead and mercury standards to first notice.
The Board severs this docket to avoid any future delay in the adoption of the standards
proposed for lead and mercury. Based on the record before the Board, it is evident that the opposition
to the amendments proposed by the Agency focuses on the proposed amendments to the ammonia
nitrogen standard. The comments and testimony in the record are primarily concerned with the
amendments to the ammonia nitrogen standard. Today's opinion summarizes the testimony and public
comments in the record pertaining to lead and mercury.
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
1
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". The
Board today adds this designation to the caption in this matter for purposes of more fully characterizing
the instant proceeding.
2
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.
PROCEDURAL HISTORY
The major portion of today's proposed amendments were filed by the Agency pursuant to
Section 27 of the Environmental Protection Act (Act) (415 ILCS 5/et seq. (1994)) and the Board's
procedural rules at 35 Ill. Adm. Code §§ 102.120 and 102.121.
Pursuant to Section 28.2 of the Act and the Board's procedural rules at 35 Ill. Adm. Code §
102.121(e), the Agency initially contended that today's rulemaking is needed to fulfill the requirements
of the Federal Clean Water Act (CWA), and that therefore it is required pursuant to federal law.
Nevertheless, the Agency's certification regarding the required nature of the amendments cited to only
part of the proposal and, moreover, did not include a written confirmation letter from the United States
Environmental Protection Agency (USEPA). Based on these deficiencies in the Agency's original
certification, the Board by order of March 17, 1994 found that it had not been shown that the
amendments as proposed were federally-required.
On April 11, 1994 the Agency filed a motion requesting that the Board reconsider is March 17,
1994 determination. The Agency certified that the entire rulemaking is federally required. Additionally,
the Agency attached a confirmation letter from USEPA Region V stating that the proposed changes for
the lead, mercury, and ammonia standards would address inconsistencies between current State law
and the CWA. The confirmation letter also observes that the proposal would be consistent with the
CWA and federal regulations. By order of May 5, 1994 the Board granted the Agency's motion for
reconsideration and 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 has already elapsed, the Board sends part of this rulemaking
back to first notice.
Three public hearings in this matter have been 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
3
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)
2
. 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.
2
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.)
4
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
3
). 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.
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
3
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
3
This document is Exhibit J to the Agency's proposal of February 24, 1994.
5
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.)
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.
6
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.
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.
ORDER
The Board directs the Clerk to cause publication of the following amendments in the
Illinois
Register
for first notice:
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
7
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
pH
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
pH
302.405
Dissolved Oxygen
302.406
Fecal Coliform (Repealed)
302.407
Chemical Constituents
8
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
pH
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
9
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 (Ill. Rev. Stat. 1987, ch.111 1/2, pars. 1013 and 1027 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; 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 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 __ 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
a)
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).
b)
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.
10
c)
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).
de)
In waters where mixing is allowed pursuant to Section 302.102, the following apply:
1.
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.
2.
The CS shall not be exceeded outside of waters in which mixing is allowed
pursuant to Section 302.102.
3.
The HHS shall not be exceeded outside of waters in which mixing is allowed
pursuant to Section 302.102.
ed)
Numeric Water Quality Standards for the Protection of Aquatic Organisms
Constituent
Storet
Number
AS
(ug/L)
CS
(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
16
11
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
22
5.2
Lead
01051
exp[A+Bln(H)]
Not Applied
11
(total)
but not to
exceed 100 ug/L
where A=-1.460
-1.301 and B=1.273
exp[A+Bln(H)],
where A=-2.863
and B=1.273
Mercury
71900
0.5 2.6
Not Applied
1.3
TRC
500600
19
11
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).
f)
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
g e)
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
12
Nickel (total)
mg/L
01067
1.0
Phenols
mg/L
32730
0.1
Selenium (total)
mg/L
00147
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:
CONSTITUENTS
STORET
NUMBER
CONCENTRATION
(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
13
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
x
) + 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
14
.
__________________________
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board