ILLINOIS POLLUTION CONTROL BOARD
July 14,
1993
IN THE NATTER OF:
)
SAFE DRINKING WATER ACT
)
R93-l
UPDATE,
PHASE V RULES
)
(Identical
in Substance Rules)
(7/1/92
—
12/31/92)
Adopted Rule.
Final Order.
OPINION OF THE BOARD
(by
J.
Anderson):
SUNNARY OF TODAY’S ACTION
Pursuant to Section 17.5 of the Environmental Protection Act
(Act), the Board today updates its regulations that are identical
in substance to USEPA regulations implementing the Safe Drinking
Water Act
(SDWA).
The Board rules are contained in 35
Ill. Adm.
Code
611.
The text of the rules appears in
a separate order,
adopted this same day.
Section
17.5 of the Act provides for quick adoption of
regulations that are “identical in substance”
to federal
regulations;
Section 17.5 provides that Title VII
of the Act and
Section
5 of the Illinois Administrative Procedure Act
(APA)
shall not apply.
Because this rulemaking
is not subject to
Section
5 of the APA
(5 ILCS 100/5-1 et seq.
(Ill.
Rev.
Stat.
1991
ch.
127, par.
1005—1 et seq.)),
it
is not subject to first
notice or to second notice review by the Joint Committee on
Adninistrative Rules
(JCAR).
As discussed more fully below,
this rulemaking involves
revisions and major additions to the Illinois SDWA rules,
as
originally adopted August
9,
1990,
in docket R88—26
(effective
September
20,
1990)
,
and amended November
19,
1992,
in docket
R91-3 and R92-9
(consolidated)
(effective December
1,
1992)
,
and
May
5,
1993
in docket R92—3
(effective Nay 18,
1993)
.
It
includes the federal Phase V amendments to the chemical
contaminant rules,
as adopted by USEPA on July 17,
1992.
The result of these amendments
is to add MCLs and monitoring
and notice requirements for five inorganic chemical contaminants
(antimony,
beryllium,
cyanide,
nickel, and thallium),
three
volatile organic chemical contaminants
(dichloromethane,
1,2,4—
trichlorobenzene,
and 1,1,2—trichioroethane),
and 18 synthetic
organic chemical contaminants
(benzoapyrene,
dalapon,
di(2—
ethylhexyl)adipate,
di(2-ethylhexyl)phthalate,
dinoseb,
diquat,
endothall,
endrin, glyphosate,
hexachlorobenzene, hexachioro-
cyclopentadiene,
oxamyl,
picloram,
simazine,
and 2,3,7,8—TCDD
(dioxin))
.
The discussions that follow consider and discuss
these amendments
in detail.
2
FEDERAL ACTIONS COVERED BY THIS RULEMAKING
The SDWA program was drawn from 40 CFR 141 (national primary
drinking water regulations or NPDWRs),
40 CFR 142
(NPDWRs
implementation),
and 40 CFR 143
(national secondary drinking
water regulations or NSDWRs).
The nominal update period of this
docket is from July
1,
1992 through December 31,
1992.
On July
17,
1992, USEPA made adopted the Phase V rules.
A small segment
of the Phase V Rules was actually a correction to the Lead and
Copper Rules.
We adopted an amendment based on that correction
in docket R92—3.
No other federal actions occurred during this
time-frame.
The only federal action during the time-frame
of
this docket was as follows:
57
Fed. Reg.
31847
July 17,
1992
(Phase V rules)
PUBLIC COMMENTS
The Board requested public comments on the proposal for
public comment.
A number of issues were specifically noted to
elicit comments.
The Board received
continents for
45 days after
the Notice of Proposed Amendments for Part 611 and Notices of
Proposed Repeal for Parts 604 and 605 appeared
in the Illinois
Register.
The Notices appeared on May 28,
1993,
at 17
Ill.
Req.
7621
(Part 604),
7629
(Part
611),
and 7738
(Part 605).
The Board
now adopts amendments based on the federal amendments involved
in
this docket
in light
of the public comments received:
PC
1
Illinois Department of Commerce and Community
Affairs
(June
7,
1993,
by Linda Brand, Manager,
Regulatory Flexibility Unit)
PC
2
Illinois Environmental Protection Agency
(June
25,
1993,
by Stephen C.
Ewart, Deputy Counsel)
PC
3
U.S. Environmental Protection Agency,
Region V
(July
9,
1993,
by John Dalessandro,
Unit Chief,
Technical Support Unit,
Drinking Water Section)
PC
4
Office of the Secretary of State, Administrative
Code Division
(July
15,
1993,
by Connie Bradway)
PC
1 stated that DCCA has found the proposed amendments would
have no significant impact on small businesses
in Illinois.
PC
2
and PC
3 offer substantive comments that the Board discusses
topically below.
PC
4 contains Illinois Administrative Code
format and Illinois Register publication suggestions.
The
textual corrections requested
in PC
4 and made by the Board are
as follows:
1.
We corrected the heading “SUBPART N” to “SUBPART N”.
3
2.
We corrected the subsection number at Section
611. 611(a) (8)
In addition to the written public comments received, on July
13,
1993 the Board received informal telephone communication by
staff from the Joint Committee on Administrative Rules
(JCAR).
JCAR staff
indicated a small number of corrections to typographic
errors.
The Board makes the following corrections to the text of
the proposed rules
in response to these JCAR comments:
1.
We correct the volume of the Federal Register to “57
Fed.
Reg.
in the Section 611.101 definition of “Phase
VI’.
2.
We correct the version of ASTM Method D3859 to that of
1984
in Sections 611.102(b) and 611.611(a) (12).
(See
also below discussion at page 17.)
3.
We add Section 611.356 to this proceeding to make the
use of “first—draw” consistent throughout subsection
(b).
We add Section 611.360 also to correct this same
error
in subsection
(a)(l)(B),
although JCAR did not
request this change.
4.
We add Section 611.359 to correct the misspelling
“sanipless”
in subsection
(b) (1) (D)
5.
We corrected the heading “SUBPART M” to “SUBPART N”.
6.
We correct the detection limit for thallium to 0.001
ing/l
in Section 611.600(d).
(See also below discussion
at page 17.)
SDWA REGULATORY HISTORICAL
SUMMARY
The Board adopted the initial round of USEPA drinking water
regulations,
including the “Phase I” rules, adopted by USEPA
prior to June
30,
1989,
as follows:
R88—26
114 PCB
149, August
9,
1990
(14 III.
Req.
16517,
effective September 20,
1990).
Subsequent dockets updated the regulations to include federal
amendments since that time:
R90—4
112 PCB 317, June 21,
1990
(dismissal;
no USEPA
amendments July
1 through December
31,
1989)
R90—l3
117 PCB 687, December 20, 1990
(15 Ill.
Reg.
1562,
effective January 22,
1991)
(January
1,
1990
through June 30,
1990)
4
R90—21
116 PCB 365, November 29,
1990
(14 Ill.
Req.
20448,
effective December 11,
1990)
(Corrections
to R88—26)
R9l—3
137 PCB 337, November
19,
1992
(16 Ill.
Reg.
19010, December
11,
1992,
effective December
1,
1992)
(USEPA Phase II and Coliforms--consolidated
with R92-9; July
1,
1990 through January 31,
1991)
R9l—15
137 PCB 627, dismissed December
3,
1992
(February
1,
1991 through May 31,
1991)
R92—3
——
PCB
——,
Nay 6,
1993
(17 Ill.
Reg.
7943
(Part
605)
& 7796
(Part
611), Nay 28,
1993, effective
May 18,
1993)
(USEPA Phase lIE and Lead and Copper
rules; June
1,
1991 through December
31,
1991)
R92—9
137 PCB 337, November 19,
1992
(16 Ill. Reg.
19010, December 11,
1992,
effective December
1,
1992)
(Corrections to Phase
I rules, R88—26——
consolidated with R91—3)
R92-12
137 PCB 725, dismissed December
3,
1992
(January
1,
1992 through June 30,
1992)
R93—1
This docket, Nay
5,
1993,
proposal for public
comment
(17 Ill.
Reg.
7621
(part
604),
7738
(Part
605)
& 7629
(Part 611)
(Nay 28,
1993))
(USEPA
Phase V rules; July
1,
1992 through December
31,
1992)
GENERAL DISCUSSION OF PRESENT ISSUES
This Update concerns the USEPA Phase V rules, adopted by
USEPA on July 17,
1993.
The Phase V rules involve instituting
new MCLs for 26 contaminants.
This involves five new inorganic
chemical contaminants
(lOCs:
antimony,
beryllium,
cyanide,
nickel,
and thallium),
three new volatile organic chemical
contaminants
(VOC5:
dichioromethane,
1,2, 4—trichlorobenzene,
and
l,l,2-trichloroethane), and 15 new synthetic organic chemical
contaminants SOCs:
benzoapyrene,
dalapon,
di(2-ethylhexyl)--
adipate, di(2-ethylhexyl)phthalate,
dinoseb,
diquat,
endothall,
endrin,
glyphosate, hexachlorobenzene, hexachlorocyclopentadiene,
oxamyl,
picloram,
simazine,
and 2,3,7,8—TCDD
(dioxin)).
Accompanying these revised MCLs are modifications to many of the
monitoring requirements relating to these and the existing 48
MCLs
(12
lOCs,
18 VOCs,
and
18 SOC5).
The following discussions
consider the federal actions
in greater detail.
Incidental
to this rulemaking
is the repeal
of Parts
604 and
605 and amendment of Section 611.521.
The Board repealed major
segments of Parts 604 and 605 in R88-26,
since the existing state
5
rules were inconsistent with the new federal provisions adopted
in that proceeding.
The remaining Sections were left applicable
until the corresponding federal rules became effective as to
a
particular supplier.
The last federal effective date is June
29,
1993,
not long before the Board intends to adopt the Phase V
amendments.
The Board opened the issue of what to do with these
provisions by suggesting alternative actions.
DETAILED SECTION-BY-SECTION-ANALYSIS
The Board adopted amendments
in response to these federal
actions.
The following detailed section—by—section discussion
focuses on the details of the actions taken.
Routine, General Amendments—-All Sections
The Board has also performed a number of standard deviations
from the text of the federal rules.
The rationale behind many of
these
is discussed in the August
9,
1990 opinion and order
in
docket R88-26
(Phase
I rules),
and we will not repeat those
discussions here.
Others are so minor as to warrant no
explanation.
The standard changes are as follows:
1.
Where the federal rules require
an action “by”
a certain
date,
the Board renders that as “on or before” that date.
2.
We have changed various of the subsections to the active
voice,
rather than following the federal use of the passive
voice.
3.
We have updated all Board Notes to reflect the 1992 version
of the Code
of Federal Regulations and to reference the July
17,
1992 Federal Register action,
where appropriate.
4.
We have made a number of changes based on the unique
attributes
of the Illinois regulatory scheme and on certain
sytlistic preferences,
as described
in the Addendum re
Standardized Modifications of Federal Text at the end of
this opinion.
General Housekeeping Amendments
Potential Repeal or Amendment of Existing Disinfection Rules--
Parts 604 and 605 and Section 611.240
In R88-26,
as part of the Phase
I Rules,
the Board adopted
Subpart B
(Filtration and Disinfection) and Subpart L
(Microbiological Monitoring and Analytical Requirements)
to Part
611.
This meant the repeal
of most of Parts
604 and 605,
since
those segments were inconsistent with the newer, federally-
derived regulations of Part
611.
However, USEPA imposed delayed
effective dates as to disinfection for various suppliers,
and
6
rather than have no standards until the effective dates of the
federally—derived standards, the Board chose to have certain
provisions
in Parts
604 and 605 expire when the federally-derived
standards became effective.
For this reason,
the Board amended all remaining Sections
in
Parts 604 and 605, Sections
604.101, 604.102, 604.103,
604.104,
604.105, 604.401,
605.101, 605.102, and 605.109,
so that they
lost effect when the federally-derived standards of Subpart B to
Part 611 became effective as to any particular supplier.
Subpart
B derived primarily from 40 CFR 141.70 through 141.73 and 141.75.
In docket R92-3, the Board repealed Sections 605.101 and 605.102,
rather than correct the references
in Part 605 to “35 Ill. Adm.
Code 61l.Subpart B” to properly read “35 Ill.
Adni.
Code 611.
Subpart L”, because the federal monitoring requirements
supplanting them were already
in effect.
Section 605.109 was
left intact as effective until the standards of Subpart
B of Part
611 became effective.
USEPA divided the universe of suppliers into categories and
phased the effective dates for each for the disinfection
requirements.
The distinctions drawn are based on the supplier’s
raw
water
source and its filtration status.
The distinctions
drawn for the purposes of filtration requirements are primarily
based on the supplier’s raw water source.
Suppliers using surface water sources
(SWSs)
(and mixed—
source systems) that did not provide filtration wa~sto have
provided disinfection treatment by December
30,
1991,
unless the
state
had
determined
pursuant
to
42
U.S.C.
§
1412(b)
(7)
(C)
that
filtration
was required
(a determination that the Board
is not
aware
was
ever
made
in
Illinois)
.
A SWS supplier using
filtration
was
to
begin
providing
disinfection
treatment
no
later
than the later of June
29,
1993
or when filtration was installed.
A
SWS
supplier
that
did
not
want
to
employ
filtration
was
to
have
complied with the conditions for avoiding filtration by December
30, 1991
(18 months after the federal promulgation date of June
29,
1989).
If the SWS failed to meet those conditions,
it was to
have
employed
both
filtration
and
disinfection
by
the
later
of
June 29,
1993 or within 18 months of the failure to meet the
conditions.
(40 CFR 141.72 preamble
(1992);
35
Ill. Adm.
Code
611.240.)
Thus,
the SWSs not initially using filtration were to have
begun disinfection treatment on December 30,
1991,
and those
initially using filtration must begin disinfection treatment by
June 29,
1993.
On the face of this,
only those who install
filtration later than 18 months before June 29,
1993
(pursuant to
a
42 U.S.C.
§ 1412(b) (7) (C) determination) might achieve
a later
compliance deadline.
However,
the Board wonders whether any
suppliers actually fall within this group.
7
The Board requested comment on whether there are actually
any SWS suppliers in Illinois that will have
a disinfection
compliance deadline later than June 29,
1993 under the federally-
derived rules.
The Agency
(PC 2)
responded as follows:
TJhe
Agency has found that all existing SWS suppliers
provide filtration of raw water.
However,
approximately twelve
(12)
of these SWS are expected to
miss the June 29,
1993 deadline for demonstrating
filtration adequacy.
For GWSs,
a state determination that the raw water source
was under the direct influence of groundwater was required before
disinfection was required under the federal rules.
A GWS that
did not provide filtration, and which the state determined to be
under the direct influence of surface water, was to have provided
disinfection treatment by the later of December 30,
1991 or
within
18 months of when the state made the determination, unless
the state had determined pursuant to 42 U.S.C.
§ 1412(b) (7) (C)
that filtration was required.
GWS suppliers that were found by
the state to be under the direct influence of surface water were
to employ disinfection by the later of June 29, 1993
or when
filtration was installed.
(40 CFR 141.72 preamble
(1992);
35
Ill.
Adm. Code 611.240.)
In the federal phase-in, USEPA did not impose the
disinfection requirements on GWS suppliers not determined to be
under the direct influence of surface water.
The Board saw fit
to
impose,
as
an
additional
state
requirement,
the
new
federally-
derived disinfection requirements on those suppliers effective
immediately
(September 20,
1990).
(The Agency may exempt any GWS
supplier
if
it specifically determines pursuant to Section
17(b)
of the Act that the GWS
is from
a protected aquifer.
The Board
interpreted this determination as equivalent to a determination
that the GWS was not under the direct influence of surface water.
This means that under the federal scheme a GWS supplier need not
disinfect until
an affirmative state determination requires it to
do so.
Under the Board’s chosen scheme,
and that previously
imposed by Section 604.401, the GWS supplier must disinfect using
the federally-derived standards until an affirmative Agency
determination allows
it not to do so.)
(35 Ill.
Athn.
Code
611.240(g);
~
R88—26 opinion at 23—27,
114 PCB 149,
171—75.)
Therefore,
as with the SWS5, all unfiltered GWSs initially
found to be under the direct influence of surface water were due
to have instituted disinfection treatment by December 30,
1991,
or within
18 months of
a state “under the influence”
determination.
All other GWSs
(those filtered)
found under the
influence were to employ disinfection by June 29,
1993
or upon
installation of filtration.
Since Illinois interposes the
Section 17(b)
determination, the Illinois regulations might be
read
as structured to effectively presume that all GWS5 are under
8
the direct influence of surface water, and again, the Board is
unaware whether there are any GWS suppliers for whom the
federally—derived disinfection requirements do not require
disinfection as of June 29,
1993.
The Board requested comment on whether there are actually
any GWS suppliers
in Illinois that will have a disinfection
compliance deadline later than June 29,
1993
under the federally-
derived rules.
The Agency responded (PC
2)
as follows:
No groundwater system
(“GWS”) suppliers in Illinois
will have a disinfection compliance deadline later than
June 29,
1993; however, the Agency has
.
.
.
issued
1547 Special Exception Permits
(“SEP”)
stating that
those suppliers are
not under the influence of surface
water.
The Agency expects to receive an additional
1234 demonstrations by the June 29,
1994 deadline for
groundwater under the influence
of surface water
demonstration.
If all SWS and GWS suppliers in Illinois are required to
employ disinfection by June 29,
1993, there will be no suppliers
to whom the remaining segments of Part 604 will apply after that
date.
On this basis,
the Board requested public comments on
whether we should repeal Part
604
in its entirety as part of this
docket.
The Agency responded that
it “recommends caution
in
repealing Part 604 of Subtitle F in its entirety
.“,
as we
discuss below.
The Board noted
in the proposal for public comment that Part
604
might
have
continued
vitality
if the Board were to reverse
the action taken in R88—26 with regard to GWS suppliers not found
to be under the direct
influence of surface water.
Under both
the federal
and state regulations, this requires a specific
finding by the Agency.
Notwithstanding the Section 17(b)
determination that allows
a GWS supplier to not employ filtration
and disinfection,
it was (and
is) possible for the Board to
impose the requirements of Part 604 on a GWS supplier until the
Agency makes an express determination that the source
is under
the direct influence.
The Part 611 disinfection requirements
impose
a different standard for disinfection than do those of
Part
604.
In both cases disinfection
is required until the
Agency makes
a Section
17(b) determination that would make it not
necessary.
The Board prefers to impose
a single standard for
disinfection throughout the state, which means employing the
deadlines chosen
in R88-26,
but we recognize that this imposes
the federal standard for disinfection on GWS suppliers to whom
the standard would never otherwise apply.
The Board requested public comments on whether we should.
delete Section 611.240(g)
in lieu of repealing Part 604, thereby
rendering Part
604
applicable to GWS suppliers for whom the
9
Agency has not made an “under the direct influence of surface
water” determination.
The Agency commented
(PC
2)
that would
prefer that the Board incorporate the substance of Section
604.401 into Section 611.240(g), delete the existing requirement
of Section 611,240(g), and repeal Part 604 in its entirety.
The
Agency states that the federally-derived disinfection
requirements of Section 611.241 or 611.242 are more stringent
than the prior Illinois requirements
of Section 604.401.
The
Agency states that the regulations needlessly require a GWS not
under the influence of surface water to meet the same standard as
a surface water system.
The Board has agreed with the Agency, and we have
incorporated the substance of former Section
604.401 into Section
611.240(g),
with modifications.
We essentially modified the
existing preamble language to subsection
(g)
by adding the
substantive requirement,
“chlorinate the water before
it enters
the distribution system”.
We then added former subsections
(a)
through
(c)
from Section 604.401 as subsections
(I)
through
(3)
to Section 611.240(g).
We changed “which” to “that” in
subsection
(g) (1) and reworded subsection
(g) (2)
to specify “by
regulation”.
The Board added a Board Note to cite the existing
Agency—promulgated criteria and procedures.
Finally, we modified
the text of former Sections 604.401(a)
and
(b)
to aid
enforceability.
First, we added
“of human health and the ability of the
distribution system to continue to deliver potable water that
complies with the requirements of this Part” to what we codify as
subsection
(b) (2).
The Board believes that this adds needed
specificity to “adequate protection”.
The Board believes that codifying former Section 604.401
at
Section 611.240(g)
requires further modification of Section
604.401(b)
(at Section 611.240(g) (2))
to fulfill the requirements
of Granite City Division of National Steel Co.
V.
PCB
(Apr.
15,
1993),
155 Ill.
2d
149,
613 N.E.2d 719.
In that case,
the
Illinois Supreme Court essentially held that although the
authority to adopt regulatory standards of general applicability
is reserved to the Board, the Agency could establish criteria by
fixed procedures based on site-specific factors that apply to
particular facilities where Board review of those criteria
is
available.
(155 Ill.
2d at 172—74,
613
N.E.2d at
——.)
This
means that
a rule,
like now-repealed subsection
(b),
that
authorizes the Agency to adopt a rule that applies generally to
GWS suppliers may go too far.
First,
it allows the Agency to
write a rule of general applicability.
Second,
it does not
result in case-by-case Board review of any challenge to the rule
or its application.
(See 155 Ill.
2d at 174,
613 N.E.2d at ——j
The Board does not believe that use of the former text of
subsection
(b)
is possible.
The alternative selected
is to use
10
the SEP mechanism far Agency implementation of the disinfection
requirements among the GWSs using groundwater not under the
direct influence of surface water.
This allows the Agency to
employ site-specific considerations to implement the Board-
established state-wide standard:
adequate protection
(of human
health and of the distribution system).
This further fulfills
the requirements of the Granite City Steel standard
in that Board
review of Agency determinations is available pursuant to Section
40(a)
of the Act.
This action of using the former Part 604 standard in place
of the federally-derived standard of Part 611 constitutes a
reversal of a former identical-in—substance action.
It does not
constitute adopting a state-only standard using identical-in-
substance procedures.
It
is a reversal of the Board’s action in
R88-26, when we made the federally-derived standards immediately
applicable to GWS suppliers using groundwater not under the
direct
influence of surface water.
The federal disinfection regulations involved
in R88-26
provided for a phase-in of the disinfection requirements based on
the supplier and its source of raw water.
However,
those rules
would never apply at all to GWSs not under the influence of
surface water.
The Board and the Agency did not desire that any
supplier in Illinois provide water to which it had not first
applied disinfection treatment.
Therefore, the Board, against
the desires of the Agency,
let the older Section 611.401
standards apply to each supplier until the date newer federally-
derived requirements became effective.
Because the Board
believed that older Section 604.401 was flawed,
in that
it
delegated too much to the Agency, we did not follow the Agency’s
request to leave the Section 611.401 standard intact as to these
GWS suppliers.
Instead, we immediately applied the newer
federally-derived requirements to GWSs using water not under the
influence.
The Board now agrees with the Agency’s position,
since we
have found
a way to cure the objectionable defect in the former
Section 604.401.
Thus,
rather than discard the former Illinois
rule and make a more stringent federally—derived standard apply
to a group of suppliers to whom
it would not otherwise apply,
the
Board cures the defects we perceived in the former state standard
and restore
it.
As to the sole remaining Section
in Part 605,
Section
605.109,
it loses effect when the filtration and disinfection
provisions of
35
Ill.
Adin.
Code 6ll.Subpart B become effective as
to any particular supplier.
This Section requires daily sampling
and analysis for turbidity.
Since this is the only provision
remaining
in Part
605,
and since it expires when the Part 611
filtration and disinfection requirements become effective,
the
Board requested comment on whether there are any suppliers that
11
will remain subject to this provision after June
29,
1993
and,
if
not, whether we should repeal Part 605 in its entirety as part of
this docket.
The Agency responded
(PC
2)
that it agreed that the
Board should repeal this Part in its entirety.
Potential Recodification of Subtitle
F:
Public Water Supplies
The pace of adoption and amendment of the federally-derived
Part 611 rules has occurred rapidly since prior to the August,
1990 adoption of R88-26,
the first of these several dockets.
The
Board has worked very hard to keep up with the fast pace of
federal revisions.
In the process, the text of Part 611 has
grown voluminous
and increasingly complex:
Part 611
Primary Drinking Water Standards
Subpart A
General
(17 Sections)
Subpart
B
Filtration and Disinfection
(18
Sections)
Subpart C
Use of Non—Centralized Treatment Devices
(2 Sections)
Subpart D
Treatment Techniques
(3 Sections)
Subpart
F
Maximum Contaminant Levels
(7 Sections)
Subpart G
Lead and Copper
(11 Sections)
Subpart K
General Monitoring and Analytical
Requirements
(5 Sections)
Subpart L
Microbiological Monitoring and
Analytical Requirements
(10 Sections)
Subpart N
Turbidity Monitoring and Analytical
Requirements
(1 Section)
Subpart N
Inorganic Monitoring and Analytical
Requirements
(15
Sections)
Subpart 0
Organic Monitoring and Analytical
Requirements
(7 Sections)
Subpart
P
THM Monitoring and Analytical
Requirements
(5 Sections)
Subpart
Q
Radiological Monitoring and Analytical
Requirements
(3 Sections)
Subpart T
Reporting,
Public Notification and
Recordkeeping
(14 Sections)
Additionally, Part 611 now includes five appendices and eight
tables.
In the past,
the various Parts of Subtitle F were arranged
topically,
and each was relatively brief:
Part 601
Introduction
(5 Sections)
Part 602
Permits
(20 Sections)
Part 603
Ownership and Responsible Personnel
(5
Sections)
Part 604
Finished Water and Raw Water Quality
(potentially repealed in this docket)
12
Subpart A
Bacteriological Quality
(5 Sections)
Subpart B
Chemical and Physical Quality
(4
Sections, repealed)
Subpart C
Radiological Quality
(3 Sections,
repealed)
Subpart D
Chlorination and Fluoridation
(5
Sections,
4 repealed,
1 potentially
repealed in this docket)
Subpart E
Raw Water
(2 Sections, repealed)
Part 605
Sampling and Monitoring
(10 Sections,
9
repealed,
1 potentially repealed in this
docket)
Part 606
Reporting and Public Notification
(repealed)
Subpart A
Reporting
(3 Sections, repealed)
Subpart B
Public Notification
(5 Sections,
repealed)
Part
607
Operation and Recordkeeping
(6 Sections,
4 repealed)
However, assuming the Board repeals Parts
604 and 605 as part of
this docket,
only Parts 601
(5 Sections),
602
(20 Sections),
603
(5 Sections),
607
(2 Sections),
and 611
(118 Sections,
five
appendices,
and eight tables)
still viable.
This causes the Board to consider dividing the bulk of Part
611 into smaller, more manageable pieces, possibly re—using Parts
604 through 606, augmenting Part 607,
and creating new Parts
in
some future proceeding.
The pace of federal amendments has ebbed
and will remain less than it has been for
the past few years,
as
evidenced by USEPA’s semiannual regulatory Agenda,
published
in
the Federal Register on November
2,
1992:
Regulatory Title
Federal Procedural
Federal Cite
(Board Docket)
Stage
(Fed./State)
Lead and Copper
Final Rule 6-7—91/
56
Fed.
Reg.
26547
Rules
Adopted Amendments
(in R92—3)
5—6—93
Phase IIB Rules
(in
Final Rule 7—1—91/
56 Fed Reg.
32074
R92-3)
Adopted Amendments
5—6—93
Phase V Rules
Final Rule 7—17—92/
57
Fed.
Reg.
31838
(in R93-3)
Proposed Amendments
5—6—93
E.
Coli Analytical
Proposed Rule!—-
Expected
in 10-92
Methods
(not yet adopted by
USEPA)
13
Radionuclides
Proposed Rule!--
Expected
in 4—93
Analytical
Techniques
Trihalomethanes
None/--
Expected in 9-93
Analytical Methods
Arsenic Rule
None!--
Expected in 11-94
Sulfate Rule
None!--
Expected in 9-95
Phase VIA
None/--
Expected in 6—95
(Disinfection By-
products)
Phase VIE
(25
None/—-
Expected in 6—95
contaminants)
Groundwater
None!--
Expected in 9—96
Disinfection
This indicates that although USEPA plans some further significant
amendments to its drinking water rules, those will not prompt
another rapid succession
of voluminous Board actions for several
more months,
after this present proceeding
is completed.
In response to a request for public comment on possible
recodification,
the Agency urged caution.
It
felt that the Board
should proceed slowly and cautiously to avoid initial confusion
of USEPA and the regulated community,
who are presently familiar
with the present regulatory structure.
As to a possible Part—by-
Part subject matter organization for any such recodification, the
Agency did not comment.
The Board may use some future
opportunity to begin a scheme of recodification of the federally—
derived regulations into several Parts, but we will heed the
appreciated Agency advice of caution.
The Phase V-Derived Amendments
Definitions——Sections 611.101
& 611.640
The general definitions section, Section 611.101, derives in
significant part from 40 CFR 141.2.
USEPA amended this provision
on July
17,
1992,
at
57
Fed. Reg.
31838.
USEPA revised the
definition of “initial compliance period”
so that
(1)
the
references to the Phase V contaminants were included and
(2) the
initial compliance period for suppliers serving fewer than 150
service connections begins in the first full compliance period
after the effective date
of
a new regulation.
That
is January
1,
1996 through December
31,
1998 for the Phase V contaminants.
Formerly,
the initial compliance period was January
1,
1993
through December 31,
1995 for all suppliers,
as
it still remains
14
for suppliers serving 150 or more service connections.
The Board has adopted the federal amendment,
but with
significant structural changes.
We have drafted the definition
so that the initial compliance period begins on January
1,
1993,
except for the Phase V contaminants
(each listed by name)
for
which it begins on January
1,
1996.
The Board has made two additional amendments to Section
611.101 based on the federal Phase V Rules, but these are based
on the need to add clarity rather than on any specific federal
amendments.
We added a definition of “Phase V”,
as referring to
that group of chemical contaminants promulgated by USEPA on July
17,
1992, consistent with existing usage for previous federal
rules.
We also amended the definitions of “SOC” and “VOC” to
include the respective names of the new Phase V chemical
contaminants.
We observed in doing so that we neglected to add
the names of aldicarb,
aldicarb sulfone, aldicarb sulfoxide,
and
pentachlorophenol to the definition of “SOC”
in docket P92-3.
We
add them
in this proceeding.
Section 611.640 does not derive from any particular federal
provision.
Rather,
the Board derived these organic monitoring—
specific terms from the need for defined, consistent use
throughout Subpart
0.
The Phase V amendments have prompted us to
delete endrin from the definition of “old NCL”.
they also
prompted us to add definitions of “Phase V SOC” and “Phase V
VOC”.
We have also added references to “Phase IIB SOC”
(and
oversight from docket P92-3),
“Phase V
SOC.’, and “Phase V VOC” to
the definition of “revised MCL”.
In response to
a Board request with ,regard to our approach
to the definitions amendments
in Sections 611.101 and 611.640,
the Agency commented.
The Agency would like to have the Board
delete our “old MCL” and “new NCL” usage and collapse all SOCs,
VOC5, and inorganics into
a single Section.
The Agency comments
that the regulated community
is very confused about the “Phases”
and “old” and “new”.
The Board agrees that this structure
is not the optimum one.
The “old”
and “new” distinction derives from the pre—existence of
MCL5 that the Agency proposed and the Board adopted based on
older federal guidelines.
This was done using the general
rulemaking procedures of Section 27.
To the extent our authority
allows,
the Board has continued to use the identical—in—substance
procedures to delete these prior NCL5 as they become less
stringent than or inconsistent with the more recently—adopted
federally-derived MCLs.
These are the only legitimate bases
for
their deletion using the Section 7.2 identical-in-substance
procedures.
The continued existence of these state-only MCLs has
required some form of distinction between them and the newer MCLs
for the purposes
of testing, monitoring,
and reporting.
The
15
Board would need to receive the proper justification for the
deletion of the “old MCLs”
in the course of a Section 27
rulemaking proceeding.
We would need a proponent to file
a
rulemaking petition and present the proper record at hearing to
gain that justification.
Then,
on the proper record and
following the appropriate procedures, we would do so.
As to the use of the federal “Phase” designations, we would
prefer not to delete them in that they have utility in
implementation of the rules,
at least at this time.
We have used
them because USEPA has implemented new MCLs in batches,
and,
especially
in the case of Phase I VOC5, the monitoring deadlines
and requirements vary from one Phase to the next.
Further,
to
the extent we read the Agency comments as including the
distinctions between the SOCs,
the VOCs,
and the inorganic
chemical contaminants, the monitoring and testing problems would
be worse
if we did not maintain the distinctions in labelling.
Based on the Agency’s comments,
as well as on our own desire
to make the rules
as simple and straight—forward as possible,
the
Board will
examine the prospect of dropping distinctions between
the groups of contaminants to the extent possible.
However, time
does not allow us to do this in this proceeding.
We will examine
this in the near future.
This will also allow us to garner
further public comments as to how the Board can accomplish this
objective.
(See the discussions below at pages
17 and 28.)
Revisions to the Analytical Methods/Incorporations bY Reference
and Monitoring and Analytical Provisions--Sections
611.102,
611.510,
611.600, 611.601, 611.603,
611.609, 611.611,
611.612,
61l.646~ 611.647
& 611.648
Section 611.102
is the incorporations by reference Section
for Part
611.
There are primarily linear relationships between
Subpart N and 40 CFR 141.23 and between Subpart 0 and 40 CFR
141.24.
This means that Section 611.600 derives from
40 CFR
141.23 preamble and paragraph
(a) (4) (1),
Section 611.601 derives
from 40 CFR
141.23(a),
Section 611.603 derives from 40 CFR
141.23(c),
Section 611.609 derives from 40 CFR 141.23(i),
Section
611.611 derives
from 40 CFR 141.23(k), major segments of Section
611.612 derive from 40 CFR 141.23(1)
through
(q),
Section 611.646
derives
from 40 CFR 141.24(f)
and Section 611.638 derives from 40
CFR 141.24(h).
As part
of the Phase V amendments,
at 57 Fed.
Reg.
31838
(July
17,
1992)
,
USEPA amended 40 CFR 141.23 as follows
(including citations
to the corresponding Illinois rules):
Federal Action and Subsection
Corresponding Illinois
or Paragraph Number
Section
amended
(a)
(4)
(i)
611.600(d)
16
added
(a)(4)(iii)
.
611.601(c)
amended
(c) preamble and
(C) (1)
611.603 preamble and
subsection
(a)
amended
(1) (1)
611.609 (a)
adding a new
(k) (4)
added in part to
611.611(a),
with footnote
6 becoming 611.611(f)
redesignating former
(k)(4)
as
611.611(d)
(k) (5) and amending it
redesignating former
(k) (5)
as
611.611(e)
(k) (6) and amending it
The major thrust of these federal amendments was to add
appropriate references to the five new Phase V lOCs
(antimony,
beryllium,
cyanide, nickel,
and thallium),
to add methods for
these contaminants,
to add sample preservation techniques for
them,
to add laboratory acceptance limits for them, and to
conform all references to the former beginning of the initial
compliance period by deleting references to “January
1,
1993”.
The Board has adopted amendments corresponding with those
made by USEPA.
We have found it necessary, however, to make
additional amendments as
a result of the federal actions.
This
is,
in part, due to the scope of the federal amendments.
It also
relates to what we perceive as possible USEPA oversights.
We add the new federally-designated methods for each of the
new bC
contaminants.
This means new methods and detection
limits for the bC
contaminants, antimony,
beryllium,
cyanide,
nickel,
and thallium,
at Section 611.600(d),
the new methods at
Section 611.611(a),
the sample preservation techniques at Section
611.611(d), and the laboratory certification requirements at
Section 611.611(e).
We add the federal references to these new
IOC contaminants
at Sections 611.601(d) (2);
611.603
(preamble);
and 611.609(a),
(d),
and
(e)
(preambles).
In rendering footnote
6 to the table
of methods at amended 40 CFR 141.23(k) (4), we have
added subsection
(f)
to Section 611.611 that outlines the sample
preparation technique and added
a notation to the preamble to
subsection
(a) to the effect that the laboratory must use that
technique for designated analytical methods.
We also make changes apparently overlooked by USEPA.
The
Board added references to the new lOCs at Section 611.609(b)
(corresponding with 40 CFR 141.23(1) (2), which USEPA did not
amend)
.
We further added similar references to the Section
611.611(e)
(preamble)
statement relating to provisional
laboratory certification (corresponding with renumbered and
amended 40 CFR 141.23(k) (6)
(preamble)) because we wonder whether
USEPA intended the provisional certification to apply to all of
the pre-existing
bOCs.
We delete the method for barium at
Section 611.612(f) (2)
(corresponding with 40 CFR 141.23(q) (2))
because the old NCL for barium was repealed as part of the Phase
17
bIB amendments
in R92-3.
The Board similarly has rendered the method for the state-
only MCL cyanide,
at Section 611.612(f) (3),
inapplicable when the
new federally-derived MCL becomes effective.
The revised MCL for
cyanide added to Section 611.301(a) will become effective on
January 17,
1994.
Deleting the method for cyanide in this docket
before the federally-derived NCL becomes effective could render
the state-only MCL virtually unenforceable.
In the course of reviewing the federal bC
analytical
methods,
th.e Board also noticed that USEPA updated several of the
references for methods for the pre—existing lOCs.
Thus,
all
references to Standard Methods in Section 611.611
(corresponding
with 40 CFR 141.23(k) (4))
are now to the 17th edition and the
correspondingly revised method numbers.
This meant adding the
federal footnote
6 sample preparation technique, already referred
to,
for existing methods for barium, cadmium,
chromium, and
selenium.
The references for existing ICP method 200.7 was
updated to what the Board now calls “USEPA Environmental Metals~
Methods:
Method 200.7” for barium, cadmium, and chromium.
Similarly, what the Board called “USEPA Inorganic Methods:
Method 300.0”
is updated and now called “USEPA Ion Chromatography
Method 300.0” for nitrate and nitrite.
Finally, the Board adds
the federal notations to “the sample digestion technique set
forth in the method”
(federal footnote
9)
and to “adding 2mL of
30
hydrogen peroxide”
(federal footnote 10)
to the existing
methods for mercury and selenium,
as appropriate.
The Agency responded
(PC
2)
to a Board request for public
comments that it agrees with the way we have dealt with the bC
analytical amendments to Sections 611.600,
611.601,
611.603,
611.609,
611.611, and 611.612.
Another Agency comment requests
that we add ASTM Method D3859-84A for selenium.
USEPA included
this 1984 version of the AA-hydride method in the new listing of
40 CFR 141.23(k)(4).
The Board originally proposed the 1988
version, which is the version USEPA requires for the graphite
furnace method.
We have added the 1984 version of the AA-hydride
method to the incorporations by reference at Section 611.102(b)
and correspondingly changed the methods at Section
611.611(a)(l2)(A)(i).
The Agency also commented that the
detection limit
.for thallium at Section 611.600(d)
should appear
as 0.001 mg/L.
We also made this correction.
Also
a part of the Phase V amendments,
at 57
Fed.
Peg.
31841
(July
17,
1992), were amendments to 40 CFR 141.24,
as follows
(including citations to the corresponding Illinois rules):
Federal Action and Subsection
Corresponding bllinois
or Paragraph Number
Section
18
amended
(f) preamble,
(f)(4),
611.646(d) and
(e)
and
(f) (5)
amended
(f) (7) and
(f) (10)
611.646(g),
(i)
and
(j)
amended
(f)(l2)
611.646(1)
amended
(f) (14)
no corresponding provision
amended
(f) (15)
611.646(0)
amended
(f) (16)
611.646(p)
amended
(f)(l7)
611.646(q)
amended
(f) (18)
611.646(r)
amended
(h) (10)
no corresponding provision
amended
(h)(12)
611.648(1)
amended
(h) (18)
611.648(r)
amended
(h)(19)
611.648(s)
As for the bOCs,
the major thrust of these federal amendments was
to add appropriate references to the three new VOCs
(dichloro-
methane, 1,2,4-trichlorobenzene,
and 1,l,2—trichloroethane)
and
15 new SOCs
(benzoajpyrene,
dalapon, di(2-ethylhexyl)adipate,
di(2-ethylhexyl)phthalate,
dinoseb, diquat,
endothall,
endrin,
glyphosate,
hexachlorobenzene, hexachlorocyclopentadiene, oxamyl,
picloram,
simazine,
and 2,3,7,8-TCDD
(dioxin)),
to add methods
for these contaminants, to add laboratory acceptance limits for
them,
and to conform all references to the former beginning of
the inj~tialcompliance period by substituting
“in the initial
compliance period” for references to “January
1,
1993”.
We add the new federally-designated methods for each of the
new
VOC contaminants.
This is easier than the amendments related
to IOCs and SOC5 because it requires only broadening the
references at the existing methods to include the Phase V VOCs.
Thus,
“Phase
I or Phase
II VOCs” now reads “Phase
I,
Phase
II,
or
Phase V VOC5”.
Also,
at subsections
(d),
(e), and
(r)(2),
“January
1,
1993”
is changed to refer to the initial compliance
period.
We
defer discussion of the SEP amendment to subsection
(g) for the next segment of this opinion.
The Board foresees that this rendering that uses the federal
Phase designations may become unwieldy,
if it has not done so
already.
Therefore, we might consider just rendering these
references as “VOCs”
in a future docket.
(See the above
discussion at pages
14 and
15 of the Agency’s comments in this
regard.)
To date,
the purpose for designating the Phases was due
to the separate requirements
for monitoring the Phase
I VOCs in
Section 611.647.
Since Section 611.646 also applies to Phase
I
VOCs,
it may be possible at some future date to repeal Section
611.647
in its entirety.
We hesitate,
however,
because the
remaining subsections
in Section 611.647 do not contain any time—
limiting language,
such as “until January
1,
1993”,
as did
subsection
(h) prior to the substantive repeal
of docket P92-3.
Application to “systems
in operation before January
1,
1993,
for
purposes of initial monitoring”,
as stated in the preamble,
is
19
not sufficiently clear that the Board can assume that repeal
would not result in federal primacy problems.
The Board requested public comments on the way we have dealt
with the VOC analytical amendments to Section 611.646.
We
especially requested comments on the future possibility of
redesignating all VOCs together as
“VOCs”,
by dropping the Phase
designations,
and on the possible repeal of Section 611.647
as
having no continued future vitality in light of Section 611.646
covering the same contaminants.
The Agency responded that the
Board should delete the Phase designations but retain the “VOC”
distinction.
The Agency urged this as part of any future
reorganization
of Part 611.
(See the discussion above at pages
14 and 15.)
We add the new federally-designated methods for each of the
new SOC contaminants.
This is,
in part like the VOC amendments
to Section 611.646,
in that an update to a number of references
to “Phase II SOCs” were updated to read “Phase II, Phase
bIB,
and
Phase V SOC5”.
(The Phase bIB designation was overlooked in
docket P92-3.)
On the other hand,
a number of methods updates
were necessary,
as for the bOCs.
This means new detection limits
for the SOC contaminants appear at subsection
(r) (2), the new
methods and added contaminants for existing methods appear at
subsection
(1),
and the laboratory certification requirements
appear at subsection
(s) (2) (C).
Also,
at subsections
(d) (1) and
(n) (2)
,
“January
1,
1993”
is changed to refer to the initial
compliance period.
A more detailed examination of the analytical methods
assignments
indicates the federal SOC methods assignments and the
possible need to correct a USEPA error.
Endrin,
hexachloro—
benzene, hexachlorocyclopentadiene,
and simazine were added to
existing “USEPA Organic Methods” Method 505; simazine was added
to Method
507;
endrin and hexachlorobenzene were added to Method
508;
dalapon, dinoseb, and picloram were added to Method 515.1;
di(2—ethylhexyl)adipate,
di(2-ethylhexyl)phthalate,
endrin, hexa-
chlorobenzene,
hexachlorocyclopentadiene,
“polynuclear aromatic
hydrocarbons”,
simazine,
and toxaphene were added to Method
525.1; and oxamyl was added to Method 531.1.
The Board added
endrin,
for the purposes of the state—only MCL to methods 505 and
508
in P91-3
(Nov.
19,
1992); therefore,
we need only add this
contaminant to Method 525.1.
In amending Method 525.1 .to add the new contaminants, USEPA
left out the language originally included in the Phase lb Rules
where USEPA added this provision
(docket R91—3).
That language
uses
a
1991 later—revised version of the method.
In assuming
that USEPA erred in deleting the language,
the Board did not
propose
its deletion,
and by public comment
(PC 3), USEPA stated
that the Board should refer to revision 3.0
of this method.
20
USEPA added six new methods for Phase V contaminants.
It
added what the Board has called “USEPA Dioxin and Furan Method
1613” for 2.3,7,8-TCDD
(dioxin).
We see no indication that this
is
in any way connected with the “USEPA Organic Methods”,
so we
have kept this method separate.
The rest of the new methods
appear all from “USEPA Organic Methods”:
Method 547 for
glyphosate, Method 548 for endothall,
Method 549 for diquat,
Methods 550 and 550.1 for benzo(a)pyrene and “other polynuclear
aromatic hydrocarbons”.
The Board requested comments on our approach to making the
federal Phase V amendments to Section 611.648 relating to
monitoring the new SOC contaminants.
We especially requested
comment as to whether we have properly corrected an apparent
error by retaining the 1991 “revision 3.0 for method 525.1, which
USEPA dropped.
As noted above, USEPA responded as to method
525.1.
The Agency
(PC
2)
stated that it concurs with the Board’s
approach but deferred to USEPA as to method 525.1.
USEPA further
commented
(PC
3)
on Method
1613.
It conceded in its comments
that USEPA Organic Methods does not include Method 1613, but
USEPA suggested that
it is an “organic method” and “it should not
be kept separate from other U.S.EPA organic methods”.
The Board
believes that USEPA misapprehended the purpose of the separate
labels.
The separate labels are used solely for the purposes
of
clearly
indicating the identities of the documents centrally
incorporated by reference at Section 611.102.
Finally,
Section 611.510 derives from 40 CFR 141.40(n)
USEPA amended this provision,
relating to monitoring for
unregulated contaminants,
at
57
Fed. Peg.
31845
(July 17,
1992).
The effect of the federal amendments
is to delete the Phase
II
unregulated contaminant listings for all the IOCs,
at paragraph
(n) (11),
and VOCs and SOCs,
at paragraph
(n) (12), that are now
regulated and for which there are now Phase V MCLs.
The Board
makes the federal deletions at corresponding subsections
(k)
and
(1).
We also change the methods columns headings to read “ii~EPA
Organic Methods” and “USEPA Inorganic Methods”, respectively,
in
keeping with the usage established in docket P91-3 for the rest
of the monitoring provisions in Part 611.
In response to a Board request for comments on our approach
to the deletions from the listing of unregulated contaminants,
the Agency
(PC
2)
and USEPA
(PC
3)
commented.
The Board has made
a minor correction to what is now the
subsection
(b) preamble
in response to the USEPA comments.
The
former language,
“inorganic contaminants listed
in subsection
(k)”,
now refers to “organic” contaminants.
The Agency agreed that the Board should delete any
unregulated contaminants for which USEPA has promulgated an MCL.
USEPA
stated
that
it has no objection to the Board deleting such
21
unregulated contaminants for which there is now an MCL.
However,
the Agency stated that the contaminants that USEPA has listed as
unregulated contaminants and for which there is no MCL should
remain listed as unregulated contaminants for monitoring every.
five years.
The Agency specifically referred to “Phase
I”
unregulated contaminants, which the Board deleted
in repealing
Section 611.650,
in docket P91—3.
In P91-3, the Board deleted the former Section 611.650
listing of
(36 federal Phase
I) unregulated contaminants for two
reasons:
because USEPA adopted MCLs for 14 of them as a result
of the Phase
II rules,
and as a matter of general housekeeping. to
avoid possible conflicts with the Phase II rules because the
monitoring was to have been completed by January
1,
1992.
The
Board received no adverse comments and followed through with the
deletion,
on November 19,
1992,
without further discussion.
In
evaluating the Agency comments the Board has determined that we
erred
in part
in that deletion.
As part of the Phase V amendments, USEPA amended 40 CFP
141.40(e)
to delete all the
14 unregulated organic contaminants
for which
it had adopted a MCL.
It also deleted two additional
unregulated contaminants
(dibromomethane and l,2—dibromo—3—
chloropropane).
This
left
a list of 20 unregulated organic
contaminants
(chloroform,
bromodichloromethane, chlorodibromo—
methane,
bromoform,
chlorobenzene,
rn—dichlorobenzene,
1,1—
dichioropropene,
1, l-dichloroethane,
1,1,2, 2—tetrachloroethane,
1,
3—dichloropropane,
chloromethane,
bromomethane, 1,2,3—
trichloropropane,
1,1, l,2-tetrachloroethane,
chloroethane,
2,2—
dichioropropane,
o-chlorotoluene,
p-chlorotoluene,
broniobenzene,
and l,3—dichloropropene).
As noted in P91-3, the latest
compliance date for initial monitoring for these contaminants was
January
1,
1991,
however,
overlooked in P91—3 was the fact that
federal subsection
(1) requires all CWS5 and NTNCWS5 to repeat
the monitoring at least every five years.
Therefore,
as noted by
the Agency’s comments,
this
is
a “live” federal provision that
the Board should not have deleted.
We now restore
it as Section
611.510(a), applicable to “Phase I” unregulated contaminants.
This requires us to restructure the existing text of Section
611.510 into Section 611.510(b), applicable to “Phase V”
unregulated contaminants.
In restoring the text of former Section 611.650,
the Board
adds counterparts to 40 CFR 141.40
(g) through
(m), only
partially codified
in former Section
611. 657,
also repealed in
P91-3.
This includes subsection
(a)(7)
(corresponding with
federal subsection
(g)),
which sets forth the methods
requirements; subsection
(c)
(corresponding with federal
subsection
(h)), which sets forth the laboratory requirements;
and subsection
(d)
(corresponding with federal subsection
(1)),
which sets forth the repeat analysis requirements.
We do not
codify the requirements of 40 CFR 141.40(i),
which pertains to
22
the ability of suppliers to grandfather data up until a date long
since expired;
141.41(j), an optional USEPA provision relating to
monitoring
15 additional contaminants that USEPA does not require
for state programs; 141.40(k),
which pertains to notice to the
Agency by smaller suppliers up until a date long since expired in
lieu of sampling; and 141.40(m),
an optional provision that
pertains to composite sampling.
The Board has codified the laboratory certification
requirements and the repeat monitoring requirements as
subsections
(c) and
(d) because it appears that USEPA intended
that these also apply to monitoring for the Phase V unregulated
contaminants.
The federal
language is broad enough to embrace
the new federal subsection
(n) Phase V requirements, and the
language appears relevant to them on its face.
Otherwise,
the
text of federal subsections
(a) through
(m),
adopted by USEPA as
Phase
I requirements, appears to apply only to monitoring for the
Phase
I unregulated contaminants.
In codifying the laboratory
certification requirements of subsection
(c), the Board
references the Phase II and Phase V VOC requirements, rather than
the Phase
I certification requirements.
In codifying the repeat
monitoring requirements at subsection
(d), the Board adds a
reference to the timing of the Phase V monitoring requirements.
In codifying the methods requirements at subsection
(a) (7),
we
use the 1988 edition of USEPA Organic Methods, rather than the
1986 edition.
Special Exception Permits——Sections
611.110
& 611.646
The federal Phase V amendments included new language at the
end of
40 CFR 141.24(f) (7)
(corresponding with Section
611.646(g))
that allows the states to waive the initial round
of
monitoring for l,2,4-trichlorobenzene for small system suppliers.
The federal rules do not define a “small system”
in the
regulatory text
(outside of the context
of the Lead and Copper
Rules, where
it
is defined as regularly serving fewer than 3,300
persons).
However, the preamble to the federal rules, at
57
Fed.
Peg.
31825,
appears to contemplate a system with fewer than 500
service connections.
On this basis, the Board added this
language to the proposal for public comment with a change that
indicates this size limitation
in terms of the number of service
connections.
Thus,
we used
“a supplier that serves fewer than
500 service connections”, rather than “small system”,
as did
USEPA.
We made a small number of amendments to the core SEP
provision at Section 611.110 to implement the federal Phase V
Rules.
All references at subsection
(e) are now to “Phase
I,
Phase bI, and Phase V VOCs”
and “Phase II, Phase bIB,
and Phase V
SOCs”.
Additionally,
we added to subsection
(e)
a reference to
the SEP from the 1,2,4-trichlorobenzene monitoring requirement
of
Section 611.646(d)
for small system suppliers.
23
The Board requested comment on our approach to the federal
waiver provisions.
The Agency commented
(PC
2)
that the Board’s
language appeared accurate, but it deferred to USEPA.
USEPA
commented
(PC
3)
that because the definition of “small system”
appears in 40 CFP 141.2,
the Board should use the 3300 person
limit.
We have changed the text to do so; however,
since the
Board codified the lead and copper definitions at Section
611.350, we use “3300” rather than “small system”.
USEPA further commented with regard to Section
6l1.110(e)(.2)(D)(i), adopted in R92—3, that 40 CFR
141.24(f) (8) (ii) (E) further requires consideration of wellhead
protection.
USEPA states that “a welihead protection program
should be the goal of any monitoring waiver program”.
We have
added “wellhead protection”
as appropriate.
BAT Designations for Contaminants-—Sections 611.130,
611.300(c)
&
611.311(b)
USEPA added new designations
of the best available treatment
technology
(BAT)
for each of the Phase V contaminants at 40 CFR
141.62,
for bOCs,
and 40 CFR 141.61,
for VOCs and SOCs.
The
Board has adopted these designations without change at
corresponding Sections 611.301(c)
and 611.311(b).
However, USEPA
kept with its prior practice of adding to the separate listings
of BAT in the implementation rules of 40 CFR 142.
When adapting
40 CFR 142,
Subpart G in P92-3,
the Board
referred to the main BAT listings at Sections 611.310 and
611.311, rather than follow the federal structure and maintain a
separate listing at the conditions for relief provisions.
That
saved space and avoided confusion as to whether the BAT
designations were different
in the two contexts.
At
57 Fed.
Peg.
31848
(July
17,
1992), USEPA amended 40 CFR 142.62 to add BAT for
each of the Phase V contaminants.
Those added listings are
similar to the ones added at 40 CFR 141.61 and 141.62,
with three
notable exceptions:
the heading “PTA”,
for packed tower
aeration”,
in 40 CFR 161.61 appears as “PAT”
in section 142.62;
PTA appears
in section 142.62 for alachlor, whereas it does not
appear
in section 141.61;
PAT does not appear in section 142.62,
whereas it appears in section 141.61 for toxaphene; and “OX”
(oxidation) appears
in section 142.62 for hexachlorobenzene,
whereas granulated activated carbon
(GAC)
appears
in section 40
CFR
141.61.
Faced
with
this
apparent federal error, the Board has
decided
to
remain
with
our
single-listing
structure
and
follow
the
actual
text
of
the
federal
substantive
rule-—i.e.,
the
BAT
listings of
40 CFR 141.61.
However, this still leaves confusion.
In the course of determining USEPA’s intent,
we examined the
federal listings
of BAT in the preamble discussions,
at 56 Fed.
Peg.
3529
(Jan.
30,
1991)
(toxaphene
is
a Phase II contaminant)
24
and 57 Fed. Peg.
31778.
This discussion indicates that the 40
CFR 141.61 listing is correct as to alachlor and hexachioro-
benzene,
but the preamble at 56 Fed.
Reg.
3529 indicates that
USEPA may not have intended PTA as BAT for toxaphene.
We have
added a Board Notes to this effect at Section 611.130(c) (1) and
611.311(b).
Nevertheless, we have followed the actual text of 40
CFR 141.61(b)
because the rule text
is enforceable and the
federal preamble discussion
is not.
The Board received comments from both the Agency
(PC 2)
and
from USEPA
(PC
3)
in response to our request for comments on the
codification
of BAT for the chemical contaminants at Sections
611.301(c)
and 611.311(b).
Specifically, we requested comment on
our use of the single listings of BATs for both the substantive
rules and the limitations on relief rules of Section 611.130 and
on our dealing with the apparent federal errors as to alachlor,
toxaphene,
and hexachlorobenzene.
The Agency agreed that the BAT
listings should be consistent,
and
it agreed with our treatment
of alachior,
toxaphene,
and hexachlorobenzene,
but the Agency
deferred to USEPA.
USEPA stated that GAC is BAT for all three
contaminants,
and PTA should be removed from the listings.
We
therefore deleted the proposed listing
for PTA from toxaphene in
Section 611.311(b).
MCLs——Sections 611.300,
611.301, 611.310,
and 611.311
Section 611.300 derives from 40 CFR 141.11.
USEPA did not
amend this provision
in the current update period, but other
federal amendments prompted Board action and inquiry.
The only remaining federal NCL at 40 CFR 141.11(b)
is that
for arsenic.
The Board has
in dockets P91—3 and P92-3 followed
the federal
lead and deleted the remaining federally-derived MCLs
from Section 611.300(b).
USEPA has retained the introductory
text of subsection
(a),
the fluoride limitation of subsection
(C)
(which the Board has listed in subsection
(b)),
and the
conditions for higher nitrate limitations for non—CWSs
in
subsection
(d).
The Board has also followed the federal lead to
retain these,
even if
it has lead to a double listing of the MCL
for fluoride at both Sections 611.300 and 611.301 and an apparent
dislocation of the nitrate exception from the listing of the NCL
at Section 611.301.
Section 611.300(b)
also includes four remaining state-only
MCLs for cyanide,
iron, manganese,
and zinc.
We recently deleted
the fifth prior state-only NCL for copper in docket P92—3,
in
response to the federal Lead and Copper Rules.
We now delete the
state-only MCL for cyanide, effective when the new federally-
derived MCL becomes effective on January
17,
1994.
Although the
state-only
MCL
of Section 611.300(b)
is the same as the new
federal MCL for cyanide, which the Board codifies at Section
611.301, we believe that the existence of two MCLs would lead to
25
confusion and possible inconsistency with the federal rules.
At past meetings of the regulatory work group, the Agency
has raised the issue of whether the Board should delete the
remaining state—only MCLs.
The Board always responded that since
those are rules adopted pursuant to Section 27
of the Act, and
since they do not render the state regulations less stringent
than or inconsistent with the federal regulations,
we cannot
delete them in an identical—in—substance proceeding pursuant to
Sections 7.2 and 17.5.
Therefore,
if the Agency desires to
delete the remaining state—only MCLs,
in the absence of a federal
action that would necessitate their deletion, we would invite the
Agency to file
a petition for regulatory amendment pursuant to
Section 27
of the Act.
Section 611.300(c) contains a listing of the secondary MCL
for fluoride.
Corresponding 40 CFR 141.11(c) contains the MCL
for fluoride and a reference to the secondary MCL at 40 CFP
143.3.
The Board noted in the proposal for public comment that
40 CFR 143.1 provides that the federal secondary NCLs are
advisory only,
and they are not enforceable.
For this reason, we
proposed deletion of this language and replacement of subsection
(c) with our traditional “dummy” language to maintain structural
parity with the corresponding federal provision.
We proceed to
make these amendments; however,
in response to an Agency comment
(discussed below), we have added a statement as to the secondary
MCL to the Board Note to Section 611.301(b), where the MCL for
fluoride appears.
In examining this section for the purposes of amendment in
response to the federal Phase V amendments,
we question the way
we crafted subsection
(d)
in P88-26.
This subsection allows non—
CWSs to exceed the nitrate MCL as provided by 40 CFP 141.11(d)
and incorporates the federal provision by reference.
There
is no
cross-reference
to Section 611.301(b),
where the MCL actually
appears.
40 CFR 141.11(d) provides that the states may allow a
non-CWS to exceed the MCL for nitrate,
up to a level of
20 mg/l,
if certain conditions are fulfilled:
1.
the water must not be available for consumption by
children under six years old,
2.
there will be continuous public notice of the fact that
the nitrate level exceeds the MCL and of the potential
adverse health effects of elevated nitrate,
3.
there will be annual notification to state and local
public health officials of nitrate levels
in excess of
the
MCL,
and
4.
no adverse health effects will result from the
exceedance.
26
Aside from the issue of the separation of this exception
from the MCL, the Board has a few questions about this provision.
Initially, we question whether we should even retain this
provision,
since this provision is federally—optional.
Assuming
it is a desireable provision,
the Board wonders whether we should
just set forth the federal language,
as we have for nearly the
entire text of the federal rules.
The text is not particularly
lengthy and highly technical,
which are two factors that usually
prompt an incorporation by reference.
In fact,
the federal use
of “at the discretion of the state” in the incorporated text
presents some potential difficulty.
Further, by setting forth
the text,
we could spell out the need to notify the “Illinois
Department of Public Health and the county and city departments
of health,
as appropriate,
for the political subdivision(s)
served by the supplier with the water that exceeds the nitrate
MCL.”
A final issue relates to whether this prerogative of
deciding to use the exception should rest solely with the
supplier.
In all other contexts where USEPA has rested a
discretionary decision of this nature based on fixed criteria
with the state,
Illinois has used the mechanism of the SEP and
the Agency makes the determination based on enunciated standards,
subject to Board review.
The Board believes that using the SEP
mechanism for granting nitrate “exceptions” may be the proper
tool to use.
Finally, the Board has amended subsection
(e)
for clarity
and structural consistency with the rest of the rules without
making any substantive change.
We have removed the colon, using
“for”
in its place,
and we substituted “MCLs” for
“concentrations”.
The Board requested public comments on our approach to
Section 611.300.
Specifically, we requested comments on our
deletion of the state-only MCL for cyanide,
our deletion of the
secondary MCL for fluoride,
on whether we should codify the
language of the federal nitrate exception
in place of the
incorporation by reference,
and on whether we should use the SEP
mechanism for granting nitrate “exceptions”.
The Agency
responded
(PC
2)
that
it agrees with regard to the expiration of
the old MCL for cyanide on the effective date of the new
federally-derived MCL.
The Agency further commented that the
federal secondary MCL remains an enforceable requirement because
exceedance
of that secondary MCL requires public notice.
Finally, the Agency commented that the Board should codify the
nitrate language, but we should not use the SEP mechanism for the
purposes of nitrate.
In response to this comment,
the Board examined further and
observed that 40 CFR 143.5 requires notice and sets forth the
content of the notice,
effective
in
1986.
We believe that such
a
parallel provision
is necessary for federal primacy,
but the time
remaining
in
this proceeding,
in light of the imminent deadline
27
for Board adoption of these amendments,
does not quite allow us
to craft one at this time.
We believe that adding the reference
to the Section 611.301(b)
Board Note maintains status quo, but we
intend to adopt
a provision parallel to 40 CFR 143.5
in the next
update docket.
The Agency stated that the primary users of the nitrate
exception are very small suppliers regulated by the Department of
Public Health.
Rather than using the SEP mechanism for relief,
the Agency stated that the language of the exception should be
specific.
The Board responds by replacing the former
incorporation by reference with a version of the text containing
all the essential elements of
40 CFR 141.11(d).
In so doing,
the
Board has dropped all references pertaining to prior
authorization by the state.
We further added specificity to the
public notice requirements by specifying use of the federally—
required nitrate public health effects notice of Section
611.Appendix A(20).
Section 611.301 derives from 40 CFR 141.62,
amended by USEPA
at
57
Fed.
Peg.
31847
(July
17,
1992).
For antimony,
beryllium,
cyanide,
nickel,
and thallium,
USEPA added the MCL5 at subsection
(b) and BAT designations at subsection
(c).
The new MCLs apply
to CWSs and NTNCWS5, and not to transient suppliers.
The Board made minimal correction to the federal text
in
adapting their substance to the Illinois system.
The Board
rendered the federal “chlorine”
as
“chlorination” and
“ultraviolent”
as
“ultraviolet irradiation”.
We retained the BAT
listing of “UV” despite the fact that USEPA designated
it for
none of the lOCs.
In adapting the new IOC MCLs,
we added
a statement to the
preamble of Section 611.301(b) that states that they become
effective on January
17,
1994.
In the first update that will
clearly become effective only after that date has passed, the
Board can delete this statement
in keeping with our past
practice.
We requested public comments on our approach to the new
federal IOC MCLs.
Specifically, we requested comment on our
correction of an obvious federal error in citing “ultraviolent”
as BAT,
yet keeping
it listed despite the lack of any contaminant
to which
it applies under the federal rules.
The Agency
commented
(PC
3)
that the Board’s chosen language appeared
accurate,
but deferred to USEPA for comment.
USEPA
(PC
3)
specifically stated that “chlorine” should appear as “oxidation
(chlorine)”.
We have made this change to the definitions of the
abbreviations at the end of Section 611.301(c).
USEPA
specifically stated that
it had no comments with regard to the
new inorganic MCLs.
28
Section 611.310 derives from 40 CFR 141.12,
amended by USEPA
at 57 Fed. Peg.
31838
(July 17,
1993).
USEPA deleted the
existing MCL for endrin at subsection
(a),
since it adopted
another new MCL for endrin at 40 CFR 141.61
(corresponding with
Section 611.311),
and marked subsection
(a)
as “reserved”.
Therefore,
40 CFP 141.12 contains only one remaining MCL, that
for TTHMs, and it applies only to CWSs that add a disinfectant
and which provide water to 10,000 or more persons.
The MCLs for
aldrin,
DDT,
dieldrin, heptachlor,
heptachior epoxide, and 2,4-D’
and TTHN
(to the extent it
applies to all other suppliers)
are
state-only NCLs.
The Board followed through and deleted the prior federally-
derived MCL for endrin.
We correspondingly amended the Board
Notes to subsections
(a) and
(b) to observe that they were
formerly derived from 40 CFR 141.12(a)
and
(b),
and we noted the
federal deletion of the last federal MCL.
This
is an action
overlooked
in docket R9l-3 as to subsection
(b) when USEPA
similarly removed the final MCL in 40 CFP 141.12(b) and marked
the subsection “reserved”.
The Board is also considering an additional action with
regard to Section 611.310 that would shorten it.
Since there
is
only one remaining federal MCL at 40 CFR 141.12(c)
(for TTHMs)
and the balance of this Section includes only state-only MCLs,
it
may be desireable to “collapse” the three subsections with their
three Board Notes into
a single listing with a single Board Note.
We believe that this structure would more clearly impart the
requirements to the regulated community——especially since there
is no longer any need to maintain structural parity with the
corresponding federal
rule.
The Board requested public comments on our approach to
Section 611.310.
We specifically requested comments on the
possible restructuring of this Section by the removal of all
subsection designations and the consolidation of the substance of
all the Board Notes into a single Board Note.
The Agency
reiterated
(PC
2)
its desire that the Board not distinguish
between “new”
and “old”
MCLs.
As previously stated,
we will
revisit the possibility of dropping distinctions
in a future
proceeding.
The Agency also commented that the state-only MCLs
for heptachlor,
heptachlor epoxide, and 2,4—D were based on older
federal data,
and since USEPA has now adopted higher MCLs based
on newer data,
the Board should delete these state—only MCLs.
As
previously discussed above, the Board cannot do so by identical—
in-substance procedures except under very narrow circumstances.
USEPA has adopted MCLs for heptachlor,
heptachlor
epoxide, and 2,4-D as part of the Phase II Rules.
In P91-3,
the
Board retained the state—only MCLs for these contaminants because
they are more stringent than the federal MCLs.
29
The state-only MCLs must be less stringent than the federal MCLs
or inconsistent with the federal regulations.
Since the Agency
has not made these arguments, all the Board can do is suggest
that the Agency propose a Section
27 rulemaking to delete them.
(See above discussion at pages
14 and 15.)
Section 611.311 derives from 40 CFR 141.61,
amended by USEPA
at 57 Fed. Peg.
31846
(July
17,
1992).
USEPA added MCLs for the
new Phase V three VOCs to subsection
(a) and MCLs for the 15 new
Phase V SOC5 to subsection
(c).
(As previously discussed, the
BAT designations for all the new Phase V organic contaminants
are
added to subsection
(b).)
The new MCLs become effective on
January 17,
1994.
The Board adopts the 18 new Phase V NCLs for
organic contaminants without changing the federal
text.
We add a
Board Note to both subsections to draw attention to the amended
definition of “initial compliance period”
at Section 611.101,
in
order to highlight the delay in monitoring for these
contaminants.
In adapting the new VOC and SOC MCLs, we add statements to
the preambles of Section 611.311(a)
and
(c) that states that they
become effective on January
17,
1994.
In the first update that
will clearly become effective only after that date has passed,
the Board can delete this statement
in keeping with our past
practice.
In response to the Board’s request for public comments on
our approach to the new federal VOC and SOC MCLs, the Agency
stated that it supports the Board’s designation of effective
dates,
but
it deferred to USEPA.
USEPA stated that
it had no
comments on our approach to the VOC and SOC MCL5.
Lead and Copper:
Analytical Provisions-—Section
611.359
Section 611.359 derives from 40 CFP 141.89.
This Section
sets forth the analytical requirements for the lead and copper
program.
USEPA made
a corrective amendment to this provision at
57
Fed.
Peg.
31847,
on July 17,
1992.
The Board made the
necessary revision
in adopting Section 611.359
in docket P92—3,
so no further action
is necessary
in this docket.
Reporting and Public Notice:
NCL Violations-—Section 611.Appen-
dix A
Section 6l1.Appendix A derives from 40 CFR 141.32,
amended
by USEPA at 57
Fed.
Peg.
31843
(July 17,
1992).
The federal rule
sets forth the contaminant-by-contaminant mandatory health
effects information that suppliers must submit to the public when
they violate an MCL.
The federal amendments added notices for
each of the new Phase V contaminants:
five lOCs
(antimony,
beryllium,
cyanide, nickel,
and thallium),
three VOCs
(dichloro—
methane,
l,2,4—trichlorobenzene,
and 1,l,2—trichloroethane),
and
30
18 SOCs
(benzoapyrene,
dalapon, di(2—ethylhexyl)adipate,
di(2-
ethylhexyl)phthalate, dinoseb,
diquat,
endothall,
endrin,
glyphosate, hexachlorobenzene,
hexachlorocyclopentadiene,
oxamyl,
picloram,
simazine,
and 2,3,7,8-TCDD
(dioxin)).
The Board adopts
the federal language without material deviation.
We use “USEPA”
for clarity
in each notice and render “ground water” as
“groundwater” wherever it appears throughout the Appendix, which
is the Board’s usual convention.
We update the CFR reference in
the Board Note.
The Board make three corrections to the proposed notices in
response to the Agency’s comments
(PC 3).
We insert “of” in
“risk of cancer”
in the notice for benzo(a)pyrene (paragraph
58).
We capitalize “Dalapon” in the first word for the notice for that
contaminant
(Paragraph 59).
Finally, we add the words “that have
been observed in laboratory animals” at the end of the next to
last sentence of the notice for di(2—ethylhexyl)adipate
(paragraph
61).
Federal Effective Dates—-Section 6ll.Table
Z
Section 611.Table
Z derives from no particular federal
provision.
Rather, the Board believes that setting forth the
federal effective dates for the various federal MCLs would prove
useful to the regulated community.
We added this as Table D in
P91-3 for reference and renumbered
it to Table
Z
in P92-03.
We
added the effective dates for the federal Phase V amendments.
The Board has separated the Phase V IOC,
Phase V VOC,
and Phase V
SOC entries.
AGENCY OR BOARD ACTION?
Section 7.2(a) (5)
of the Act requires the Board to specify
which decisions USEPA will retain.
In addition, the Board is to
specify which State agency
is to make decisions, based on the
general division of functions within the Act and other Illinois
statutes.
In situations
in which the Board has determined that USEPA
will retain decision-making authority, the Board has replaced
“Regional Administrator” with USEPA,
so as to avoid specifying
which office within USEPA is to make
a decision.
In
a few instances
in identical
in substance rules,
decisions are not appropriate for Agency action pursuant to a
permit application.
Among the considerations
in determining the
general division of authority between the Agency and the Board
are:
1.
Is the person making the decision applying a Board
regulation,
or taking action contrary to
(“waiving”)
a Board
regulation?
It generally takes some form of Board action to
31
“waive”
a Board regulation.
2.
Is there a clear standard for action such that the
Board can give meaningful review to an Agency decision?
3.
Does the action result in exemption from the permit
requirement itself?
If so, Board action is generally
required.
4.
Does the decision amount to “determining, defining or
implementing environmental control standards” within the
meaning of .Section 5(b)
of the Act.
If so,
it must be made
by the Board.
There are four common classes of Board decision:
variance,
adjusted standard,
site specific rulemaking,
and enforcement.
The first three are methods by which a regulation can be
temporarily postponed (variance)
or adjusted to meet specific
situations
(adjusted standard or site specific rulemaking).
Note
that there often are differences in the nomenclature for these
decisions between the USEPA and Board regulations.
EDITORIAL CONVENTIONS
As a final note,
the federal rules have been edited to
establish
a uniform usage throughout the Board’s regulations.
For example, with respect to “shall”,
“will”, and
“may”
—
“shall”
is used when the subject of a sentence has to do something.
“Must”
is used when someone has to do something,
but that someone
is
not the subject of the sentence.
“Will”
is used when the
Board obliges itself to do something.
“May”
is used when choice
of a provision
is optional.
“Or”
is used rather than “and/or”,
and denotes
“one or both”.
“Either”.. .“or” denotes
“one but not
both”.
“And”
denotes
“both”.
CONCLUSION
This opinion supports the Board’s order of this same day.
The Board will promptly file these adopted amendments with the
Secretary of State.
I,
Dorothy
N.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify th~ the above proposed opinion was adopted
on the
/~-f~-
day of
~)~(~
,
1993,
by a vote of
________
/
/;
(
~
/~
~
,~
Thorothy
M.
Guirn, Clerk
Illinois Po11~itionControl Board
