ILLINOIS POLLUTION CONTROL BOARD

March 21, 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)

Proposed Rule

Second Notice

PROPOSED 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 ofits mandatory review of the applicable water quality standards of the State

of Illinois pursuant to 33 U.S.C. §~1251-1387 (1987)2. On January 4, 1996, the Board

severed the docket into subdockets A & B.3 By today’s order the Board sends the proposed

amendments to the lead and mercury standards to second notice.

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 ofchecks 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 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

The Federal Water Pollution Control Act, commonly known as the CleanWater Act

(CWA),

§~

101-607 requires the Agency to periodically, but at leastevery three years, review

the water quality standards applicable in the State. This review is commonly referredto as the

“triennial review”. The Board today adds this designation to the caption in this matter for

purposes of more fully characterizingthe instant proceeding.

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 392.202, 302.212, 302.213, 304.122 and

304.301).

at 35 Ill. Adm. Code

§~

102.120 and 102.121. By order of May 5, 1994 accepted the Agency

proposal as a federally-required mie pursuant to Section 2&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 IlJ. Reg. 14549 (Part 304). The

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

ofthe first notice publication.

ILCS

5140(e)

(1994).) As the one-year time period had

already elapsed, the Board sent part ofthe 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.

Publication ofthe proposed amendments in the Illinois Register began a 45 day

comment period. The Board received no comments during the comment period. The Board

received editorial changes from the Joint Committee on Administrative Rules. These changes

are incorporated in the amendments as proposed for second notice.

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-anunonia 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 302.2 12, 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. Adni. Code

302,208. The General Use Water Quality Standards currently do

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 Ouality 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

ugiL,

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)4. Only one

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

Code 302.208. The value proposed for the mercury HHS is 0.Ol2ug/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 ofthe word “liter” from “1” 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 NH3). 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 ofthe Board’s water quality regulations since 1990. (See also

Amendments to Title 35 Subtitle C (Toxics Control), R88-21, fmal 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 ofthe 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. (Tn. at 22.) Mr. Mosher observed that there is some controversy over the

existing NCD for lead5 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 ofthese 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 foruse 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 èhronic

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 forthe 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 (Tn. 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 ofmercury 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

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

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 oftreatment 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 ofthose 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

ofCommerce and Community Affairs: a review of the proposed amendments

found no impact on small businessesL. Filed

10/5/94.

PC #11:

The Sierra Club, illinois Chapter ofTrout Unlimited, Citizens for a Better

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

by Albert F. Ettinger; supports adoption ofproposed 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 ofthe

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 ofthese standards

as recommended by the Agency for second notice.

ORDER

The Board hereby directs that second notice ofthe following proposed amendments be

submitted to the Joint Committee on Administrative Rules:

SUBTITLE C: WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 302

WATER QUALITY STANDARDS

SUBPART A: GENERAL WATER QUALITY PROVISIONS

Definitions

Scope and Applicability

Allowed Mixing, Mixing Zones and ZIDs

Stream Flows

Main Riven Temperatures

Nondegradation

SUBPART B: GENERAL USE WATER

QUALITY STANDARDS

Scope and Applicability

Purpose

Offensive Conditions

pH

Phosphorus

Dissolved Oxygen

Radioactivity

Numeric Standards for

Fecal Choliform

Other Toxic Substances

Temperature

TITLE

35:

ENVIRONMENTAL PROTECTION

Section

302.100

302.101

302. 102

302.103

302.104

302. 105

Section

302.201

302.202

302.203

302.204

302.205

302.206

302.207

302.208

302.209

302.210

302.211

302 .212

Chemical Constituents

Ammonia Nitrogen and Un-ionizedAmmonia

7

SUBPART C: PUBLIC AND FOOD

PROCESSING WATERSUPPLY 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 Sourceson 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

Scope and Applicability

Definitions

Mathematical Abbreviations

Data Requirements

Determining the Acute Aquatic Toxicity

General Procedures

Determining the Acute Aquatic Toxicity

Water Chemistry

Determining the Acute Aquatic Toxicity

Water Chemistry

Determining the Acute Aquatic Toxicity

Combinations ofSubstances

Determining the Chronic Aquatic Toxicity Criterion for an Individual Substance

General Procedures

Determining the Chronic Aquatic Toxicity Criterion

Procedure for

Combination of Substances

The Wild and Domestic Animal Protection Criterion

The Human Threshold Criterion

Determining the Acceptable Daily Intake

Determining the Human Threshold Criterion

The Human Nonthreshold Cnitenion

Determining the Risk Associated Intake

Determining the Human Nonthreshold Criterion

Stream Flow for Application of Human Nonthreshold Criterion

Bioconcentration Factor

Determination of Bioconcentration Factor

Utilizing the Bioconcentration Factor

Listing of Derived Criteria

Appendix A References to Previous Rules

Appendix B Sources of Codified Sections

AUTHORITY: hnplementing Section 13 and authorized by Section 27 ofthe 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,

Section

302.601

302.603

302.604

302.606

302.612

302.615

302.618

302.621

302.627

302.630

302.633

302.642

302.645

302.648

302.651

302.654

302.657

302.658

302.660

302.663

302.666

302.669

Criterion for an Individual Substance

Criterion

Toxicity Independent of

Criterion

Toxicity Dependent on

Criterion

Procedures for

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 (e4).

The chronic standard (CS) for IlK cheniical constituents listed in subsection ~d~)

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 (e4). The samples used to demonstrate compliance or lack of

compliance with a CS must be collected in a manner which assures an average

representative ofthe sampling period.

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

subsection (IT) 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).

~e)

Inwaters 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.

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

allowed pursuant to Section 302. lO2.~

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

allowed pursuant to Section 302.102.

ed)

Numeric Water Ouality Standarsls for the Protection of Aquatic Organisms

360

exp~A+Bln(H), but

not to exceed 50

ugIL,

where

A=-2.918 and

1.128

exp~A+Bln(H)

where A=3.688

and B =0.8190

exp~A+Bln(H)

where Ar-i .464

and B =0.9422

exp~A+Bln(H)

but not to

exceed 100 ug/L

where Ar 1.460

-~301 and B=1.273

ug/L 

microgram per liter,

exp~x 

base neutral logarithms raised to the 

x- power, and

Storet

Constituent

Number

(ug/L)

Arsenic

(total)

Cadmium

(total)

Chromium (total

hexavalent)

Chromium (total

trivalent)

Copper

(total)

Cyanide

Lead

(total)

Mercury

TRC

where:

01002

01027

01032

01033

01042

00718

01051

71900

500600

190

exp A+Bln(H)

where A=-3.490

and B =0.7852

11

exp~A+Bln(HjJ

where Ar 1.561

and B=0.8190

exp~A+Bln(H)

where A=~1.465

and B=0.8545

5.2

Not Applied

explA +Bln(JDL

where A=-2.863

and B=i.273

~~JQ1Applied

1.3

ln(H) 

natural

logarithm of Hardness (STORET 00900):

11

Numeric Water Ouality Standard for the Protection ofHuman Health

Constituent

STORET

Number

(ug/L)

Mercury

71900

0.0 12

where ug/L

micrograms per liter

Concentrations of the following chemical constituents shall not be exceeded

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

g~)

Constituent

STORET

Unit

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

00147

1 M

Silver (total)

ug/L

01077

5.0

Sulfate

iiig/L

00945

500.

Total Dissolved

mg/L

70300

1000.

Solids

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 ofother chemical constituents shall not exceed the following standards:

Ammonia Un-ionized (as N*)

Arsenic (total

Barium (total)

Cadmium (total)

Chromium (total hcxavalcnt)

Chromium (total trivalent)

Copper (total)

Cyanide (total)

Fluoride (total)

Iron (total)

Iron (dissolved)

Lead (total)

Manganese (total)

Mercury (total)

Nickel (total)

Oil, fats and grease

Phenols

Selenium (total)

Silver

Zinc (total)

Total Dissolved Solids

006192

01002

01007

01027

01032

01033

01042

00720

00951

01045

01046

01051

01055

71900

01067

00550, 00556

or 00560

32730

00~147

01077

01092

70300

0.1

1.0

5.0

0.15

0.3

1.0

0.10

15.0

2.0

0.5

0.1

1.0

0.0005

i.0

i5.0~~k

03

1.0

1.1

1.0

1500

STORET

CONCENTRATIO

CONSTITUENTS

NUMBER

(mg/1~)

13

*For purposes of this 

section the concentration ofun-ionized ammonia shall be computed

according to the following equation:

U =

where:

0.94412(1 + lox) + 0.0559

X=0.09018+ 2729.92

-pH

(T + 273.16)

Concentration ofun-ionized ammonia as N in mg/It

Concentration of ammonia nitrogen as N in

mg/lb

Temperature in degrees Celsius

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

concentration exceeds 

15 mg/It. In no case shall either of the components exceed 15

mg/IL

(i.e., 15 mg/IL 

polar materials and 15 mg/It 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 thec2/

~ft:

day of

7kiSi~-ct~

1996, by

avoteof

_______

~Dorothy

M. 9~in,

~‘t

Clerk

Illinois PolliLtión Control Board