ILLINOIS POLLUTION CONTROL BOARD
May 5,
1993
IN THE
MATTER
OF:
)
SAFE DRINKING WATER ACT
)
R92-3
UPDATE, PHASE IIB
AND
LEAD
AND
)
(Identical in Substance Rules)
COPPER RULES
(6/1/91
—
12/31/91)
Adopted Rule.
Final Order.
Opinion of the Board
(by 3. Anderson)1:
SUMMARY 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
Iii.
Adm.
Code 611.
The text of the adopted 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
(Ill. Rev.
Stat.
1991 ch.
127, par.
1005-1
et seq.
5
ILCS 100/5-1 et seq.)),
it
is not subject to first
notice or to second notice review by the Joint Committee on
Administrative 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
R9l—3 and R92-9
(consolidated)
(effective December 1,
1992).
It
includes the federal Phase IIB amendments to the chemical
contaminant rules,
as adopted by USEPA July 1,
1991,
and the lead
and copper rules of June 7,
1991, July 15,
1991,
and June 29,
1992.
The result of these amendments will be to add MCLs and
monitoring and notice requirements for one inorganic chemical
contaminant
(barium) and four synthetic organic chemical
1
The Board wishes to acknowledge the efforts of staff
attorney Michael J. NcCambridge as principal drafter of its
opinions and orders
in this matter, with the technical assistance
of staff scientist LouAnn Burnett and under the direction of
Senior Attorney Kathleen N.
Crowley.
01 ~2-0O69
2
contaminants
(aldicarb, aldicarb suifone, aldicarb sulfoxide, and
pentachiorophenol), although the MCLs for the three aldicarbs is
concurrently administratively stayed pending future action.
These amendments further add significant new requirements
relating to lead and copper in drinking water as drawn from
consumer taps.
The discussions that follow consider and discuss
these amendments in detail.
REASONS
FOR
DELAY
ORDERS
AND
SUBSEQUENT
DELAY
Section
7.2(b)
of the Act requires that identical in
substance rulemakings be completed within one year after the
first USEPA action in the batch period.
If the Board
is unable
to do so,
it must find that an “extension of time” is necessary,
give the reasons why the one year period
is insufficient, publish
the finding and reasons ~n the Illinois Register and specify a
date when the Board anticipates completion of the rulemaking.
This rulemaking docket
is delayed.
The Board entered a
reasons for delay and extension of time order on December
3,
1992.
The Notice of Public Information on Proposed Rules
appeared in the Illinois Register on January 22,
1993
(17 Ill.
Req.
872).
As explained in the December
3,
1992 order:
The Board hereby finds)
that necessary delays in
adopting the amendments involved in R91-3 have resulted
in unavoidable delay in proceeding with the amendments
of dockets R91-15 and R92-3.
The amendments involved
in both dockets interrelate with those of docket R91-3
in such a way that it was impossible to proceed with
the R92-3 amendments until the P.91-3 amendments were
adopted.
Many of the same Sections are involved in
both proceedings, and,
in fact, docket R91-3 included
many amendments nominally within the present time—frame
of docket R92-3.
It was even impossible until
completion of the R91-3 amendments to predict when the
Board could complete the R92—3 amendments.
Further,
USEPA did not release the guidance documentation
relating to Lead and Copper rules until November, 1992.
We find this guidance information important to deciding
how to approach various issues raised by the federal
rules.
Therefore,
we find that an extension of time is
warranted and necessary and enter this order at this
time.
The Board projected in that order that it would adopt this
proposal for public comment on or before February 25,
1993 and
adopt
a final rule on or before June 3,
1993.
The Board adopted
a proposal for public comment on February 4,
1993, which appeared
at
17
Ill.
Reg. 2533 and 2682
(Mar.
5,
1993)
(Parts 611 and 605,
respectively).
01 L~~2-0070
3
FEDERAL
ACTIONS
COVERED
BY
THIS
RULEMAKING
The
SDWA
program
was drawn from
40
CFR
141
(national
primary
drinking water regulations or
NPDWR5),
40
CFR 142
(NPDWRs
implementation), and 40 CFR 143 (national secondary drinking
water regulations or NSDWRs).
The nominal update period of this
docket was originally from July 1,
1991 through December 31,
1991.
The Board order of December
3,
1992 expanded the time-
frame to include federal amendments of June 7, 1991
(the federal
lead and copper rules).
In addition to the June
7,
1991 lead and copper rules, this
docket includes a few other federal actions.
On July
1,
1991,
USEPA made certain corrections to the Phase II rules
(dealt with
in the November 19,
1992 opinion and order in R91-3)
and
promulgated the Phase IIB rules.
On May 27,
1992, USEPA issued
an administrative stay as to certain of the Phase IIB rules.
Finally, on July 15,
1991 and June 29,
1992, USEPA corrected
certain of the lead and copper rules.
The Board includes certain federal action outside the
nominal time-frame of this docket.
Rather than adopt rules with
the knowledge that USEPA has since revisited the issues involved
in a way that will require further Board action, the Board has
included those later federal actions due to their intimate
association with the June and July,
1991 actions.
Therefore,
for this extended update period and including
subsequent federal actions affecting the same matter, the
principal amendments to the federal regulations occurred as
follows:
56 Fed. Req. 26547
June 7,
1991
(lead and copper rules)
56 Fed.
Req.
30266
July
1,
1991
(Phase IIB rules)
56 Fed.
Req.
32113
July 15,
1991
(lead and copper
corrections)
57 Fed. Reg. 22178
May 27,
1992
(Phase IIB partial stay)
57 Fed.
Reg.
28787
June 29,
1992
(lead and copper
corrective amendments)
57 Fed.
Req.
31847
July 17,
1992
(lead and copper correc-
tive amendment made as
part of Phase V rules)
(Significant portions of the June 7 action that related directly
to corrections to the Phase II rules,
and that portion of the
June 7,
1991 action that related to the definition of “maximum
contaminant level” were the subject of docket R91—3.)
PUBLIC COMMENTS
The Board received some public comments in advance of the
formal proposal in this Docket.
They are summarized as follows:
0k2-0071
4
PC
1
Illinois
Environmental
Protection
Agency
(Agency)
(Connie
L.
Tonsor,
Assistant
Counsel),
February
2,
1993.
PC
1
is
a
preliminary
comment
by
the
Agency,
which
the
Board
received
in
the
course
of
developing
the
proposal for public
comment.
In
summary,
PC
1
requests
that
the
Board
repeal
two
Sections in Part 605 that are now superseded by Section 611.521.
It further requests that the Board delete certain segments of
Section 611.521(b)
because it represents the repeal of
a more
stringent state standard in R88-26, on August
9,
1990.
Finally,
the Agency requests that the Board repeal the state-only copper
MCL of Section 611.300(b)
because its retention would render the
Illinois program less stringent than the federal program.
Basically, PC
1 memorializes the Agency’s position enunciated
during the January 27,
1993 meeting of the Regulatory Work Group
formed to discuss issues raised by USEPA SDWA rules adoptions.
The Board requested public comments on the February 4,
1992
proposal for public comment.
We specifically noted a number of
issues to elicit comments.
The Notices of Proposed Amendments
appeared in the Illinois Register on March
5,
1993,
and the Board
received comments for 45 days after that date, until April 29,
1993.
During this formal comment period, the Board received
three additional public comments:
PC
2
Illinois Department of Commerce and Community
Affairs
(DCCA)
(Linda
D. Brand, Manager,
Regulatory Flexibility Unit), March 10,
1993.
PC
3
Secretary of State
(Code Unit)
(Connie Bradway,
Acting Supervisor, Administrative Code Unit),
March 17,
1993.
PC 4
Illinois Environmental Protection Agency
(Agency)
(Connie L. Tonsor, Assistant Counsel), April
16,
1993.
PC 2 states that DCCA found that the proposed amendments
will not negatively impact small businesses in Illinois.
PC 3
sets forth the Code Unit’s corrections to the rules to make them
comport with the Illinois Register and Illinois Administrative
Code format requirements.
PC
4 sets forth substantive comments
of the Agency on the Proposal for Public Comment.
The Board has
made each of the Code format changes suggested by the Secretary
of State, and we address each of the PC 4 comments in the
detailed discussion below.
The Board now acts promptly to adopt amendments based on the
federal amendments involved in this docket.
01 L~.2-OO72
5
SDWA
REGULATORY
HISTORICAL
SUMMARY
The Board adopted the initial round of USEPA drinking water
regulations, including the “Phase I” rules, adoptedby USEPA
prior to June 30,
1989, as follows:
R88—26
114 PCB 149, August
9,
1990
(14 Ill. Reg.
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)
P.90—13
117 PCB 687, December 20,
1990
(15 Ill. Reg.
1562,
effective January 22,
1991)
(January
1,
1990
through June 30,
1990)
R90—21
116 PCB 365, November 29,
1990
(14 Ill. Reg.
20448, effective December
11,
1990)
(Corrections
to R88—26)
R91—3
——
PCB
——,
November 19,
1992
(16 Ill. Req.
19010,
December 11,
1992, effective December
1,
1992)
(USEPA Phase II and Coliforms——consolidated with
P.92-9; July
1,
1990 through January 31,
1991)
R91—15
—-
PCB
——,
dismissed December
3,
1992
(February 1,
1991 through May 31,
1991)
R92—3
—-
PCB
——,
May 6,
1993
(17 Ill. Req.
-—)
(USEPA
Phase IIB and lead and copper rules; June 1, 1991
through December 31,
1991)
R92—9
——
PCB
——,
November 19,
1992
(16 Ill. Req.
19010,
December 11,
1992,
effective December
1,
1992)
(Corrections to Phase
I rules, R88—26)
R92-l2
--
PCB
--,
dismissed December
3,
1992
(June
1,
1992 through June 30,
1991)
R93—l
Proposed rule May
6,
1993
(USEPA Phase V; July 1,
1992 through December 31,
1992)
GENERAL DISCUSSION OF PRESENT ISSUES
This Update concerns the USEPA “lead and copper” rules and
the “Phase IIB” rules.
The lead and copper rules involve
instituting a new scheme for monitoring drinking water,
as
sampled from the consumers’ taps,
for the appearance of lead and
copper.
Rather than traditional MCLs,
this monitoring scheme
0k20073
6
uses “action levels” for these two contaminants.
If the
frequency and magnitude of contaminant occurrence so warrants,
this regulatory scheme could require a water supplier to engage
in further monitoring investigation, disseminate warning notices
and engage in public education on the hazards of lead,
treat the
source water, optimize the corrosion control in its distribution
system, and replace lead service lines.
The Phase IIB rules
involve the adoption of “revised MCL5”
for one inorganic chemical
contaminant
(IOC)
and four synthetic organic chemical
contaminants
(SOCs).
Accompanying these revised NCLs are
additions to the monitoring and reporting requirements relating
to them.
The following discussions consider the federal actions
in greater detail.
June
7,
1991 Federal Action--Lead and Copper
On June
7,
1991,
at 56 Fed. Reg. 26547, USEPA amended the
definitions section and added an entire new subpart relating to
control of lead and copper at consumer taps.
All the new
definitions, except the amendments to the definition of maximum
contaminant level, related to implementation of new 40 CFR 141,
Subpart I——Control of Lead and Copper.
The amendments caused the
former MCL for lead to expire on November 9,
1992, the effective
date of the lead and copper rules.
In its place,
new Subpart I
instituted a complex scheme for control of the appearance of lead
(and copper)
at consumers’ taps.
USEPA divided the universe of suppliers into large, medium-
sized, and small, depending on the number of persons they serve.
The effective date and effect of the substantive regulations
depends on the size of the supplier’s system.
Large suppliers
(serving more than 50,000) were to have begun monitoring for lead
and copper at consumer taps beginning on January
1,
1992.
Medium-sized suppliers (serving more than 3,300 and up to 50,000)
were to have begun on July 1,
1992,
and small suppliers
(serving
3,300 or fewer persons) will begin on July 1,
1993.
Before the applicable monitoring effective date,
each
supplier must have completed a materials assessment of its
distribution system.
The purpose is to select a set of targeted
sampling locations.
The greater the number of persons served by
the supplier, the greater the number of sites the supplier must
sample.
For example,
for lead and copper, under standard
monitoring,
a supplier serving 100,000 or more persons must
sample 100 sites,
one serving 3,300 to 10,000 must sample 40,
and
one serving 100 or fewer must sample
5.
The pool of possible
sampling sites includes “tier
1 sampling sites”
(those single—
family residential buildings that have copper pipe with lead
solder installed after 1982, which have lead pipes,
or which are
served by a lead service line),
“tier
2 sampling sites”
(those
multiple-family residential buildings that otherwise fulfill the
criteria of tier
1 sampling sites), and “tier
3 sampling sites”
0! E~2-O07~.
7
(those single—family residential buildings that have copper pipes
with lead solder installed before 1983.2
A community water system
(CWS)
supplier is required to use
tier
1 sampling sites exclusively for monitoring unless multiple—
family residential buildings comprise at least 20 percent of its
overall sampling pool or it has an insufficient number of tier
1
sites on its distribution system.
If a CWS supplier has an
insufficient number of tier
1 and tier
2 sites,
it may make up
the deficiency in its sampling pool with tier
3 sites.
Transient, non—community water system (NTNCWS) suppliers must use
tier
1 sampling sites.
If the NTNCWS has insufficient tier
1
sites,
it must use the alternative sites.
If the supplier’s
system has lead service lines, half of its sampling pool must
have lead service lines and half copper pipe with lead solder.
During the initial phases of monitoring,
the supplier must
sample each site every six months, using the same sites in
subsequent six—month monitoring periods unless there
is some
appropriate reason for not using the same sites.
The supplier is
to ascertain the “ninetieth—percentile level” for lead and copper
in its system based on the monitoring data
(by rank-ordering the
data and selecting that result that corresponds to the ninetieth
percentile of all the data).
Large suppliers must monitor for
two consecutive six—month monitoring periods and medium—sized and
small suppliers must monitor for each successive six—month
monitoring period until it either exceeds the “action level”
(0.015 mg/l for lead and 1.3 mg/l for copper)
or it has met the
action levels for two consecutive monitoring periods
(when it can
go to reduced monitoring).
Sampling locations will vary with the type of monitoring.
The tap water sampling for lead and copper occurs at consumers’
taps.
Source water sampling occurs at entry points to the
distribution system
(a sampling location established in the Phase
II rules in docket P.91—3).
Corrosion control sampling occurs at
both consumers’ taps and at entry points
(on a biweekly basis).
Suppliers must “optimize corrosion control” in their
distribution systems or undertake “corrosion control treatment
2
The scheme actually differs for CWS5 and NTNCWS5.
Although otherwise identical,
tier
1 sampling sites for CWSs
includes only “single-family structures” at 40 CFR 141.86(a) (3).
It is “buildings”
for NTNCWS5 at 40 CFR 141.86(a) (6).
There are
no “tier 2” or “tier
3” sites for NTNCWSs at section
141.86(a)(7).
Rather, that federal paragraph describes
alternative sites for NTNCWSs if there are not enough tier
1
sites.
The Board has rendered this scheme as described on page
16 of this opinion.
0i~2-U075
8
steps”.
The state may deem a supplier as having optimized
corrosion
control
if
the
supplier
provides
certain
information
that
demonstrates
that
it
has
engaged
in
steps
equivalent to the
applicable
corrosion
control
steps.
Alternatively, -a.small or
medium-sized supplier that has met the lead and copper action
levels for two consecutive six—month monitoring periods is deemed
to have optimized corrosion control
(and may even cease further
corrosion control steps
it has already undertaken immediately
after
it has done so, but it must begin again where it left off
if
it subsequently exceeds either action level).
Finally,
a
supplier that can demonstrate, based on two monitoring periods’
data, that the difference between its source water lead level and
its ninetieth—percentile lead level
is less than the “practical
quantitation level” for lead (0.005 mg/l)
is deemed to have
optimized corrosion control.
The deadlines for undertaking the various corrosion control
treatment steps varies with the size of the supplier’s system.
Large system suppliers must adhere to the following schedule:
Step
1:
complete two periods of monitoring by January
1,
1993;
Step 2:
complete corrosion control studies and recommend
optimal corrosion control to the state by July 1,
1993;
Step 3:
the state must designate optimal corrosion control
for the supplier by January
1,
1994;
Step 4:
the supplier must install optimal corrosion control
by January
1,
1997;
Step 5:
the supplier must complete follow-up sampling by
January
1,
1998;
Step
6:
the state must review the installation and
designate “optimal water quality control parameters” by
July
1,
1998; and
Step
7:
the supplier must continue to operate in compliance
with the state-specified water quality control
parameters and continue tap—water sampling.
Medium—sized and small system suppliers must adhere to the
following schedule:
Step 1:
conduct initial sampling in successive monitoring
periods until it either exceeds either the lead or
ôopper action level
(in which case it must undertake
corrosion control studies and recommend optimal
corrosion control to the state within six months of the
exceedance)
or becomes eligible for reduced monitoring
01
L~.2-OO76
9
(without
undertaking
further steps until it exceeds
either action level);
Step 2:
the state may either require the supplierto
perform corrosion control studies and make a
recommendation within 12 months of an exceedance of
either action level,
or the state must specify optimal
corrosion control within 18 months for medium—sized
system or 24 months for small system suppliers;
Step 3:
the system must complete corrosion control studies
and make a recommendation to the state within 18 months
of when the state requires it to do so;
Step 4:
the state must designate optimal corrosion control
for the supplier within six months after the supplier
makes its recommendation;
Step 5:
the supplier must install corrosion control
treatment within 24 months of when the state designates
optimal corrosion control;
Step 6:
the supplier must complete follow-up monitoring
within 36 months of when the state designates optimal
corrosion control;
Step 7:
the state must review the supplier’s installation
of optimal corrosion control and designate water
quality control parameters within six months of
completion of the follow-up sampling; and
Step 8:
the supplier must continue to operate in compliance
with the state-specified water quality control
parameters and continue tap—water sampling.
Each supplier required to undertake corrosion control
studies must evaluate the effectiveness of certain treatment
processes
in its system (alkalinity and pH adjustment, calcium
hardness adjustment, and addition of phosphate— or silicate—based
corrosion inhibitors)
in bench—scaled testing or by documentation
of tests in similar systems.
The supplier must report certain
analytical results for water quality control parameters from its
testing to the state
(lead, copper,
pH, alkalinity, calcium,
conductivity, temperature, and any inhibitor residual),
as well
as any chemical or physical constraints on using a treatment
method.
In designating optimal corrosion control treatment,
the
state must consider the effects of treatment on the water quality
control parameters and other of the supplier’s treatment
processes.
The federal regulations similarly specify how the
state is to specify the supplier’s water quality control
parameters.
01 ~.2-O077
10
After
the state has specified the water quality control
parameters,
a
large
system
supplier
must
commence
monitoring
the
parameters every six—month monitoring period.
A medium—sized or
small system supplier must monitor during each six—month
monitoring period in which it exceeds the lead or copper action
level
in tap water sampling.
The number of water quality control
parameter samples a supplier must collect varies with the size of
its distribution system.
For example a supplier serving 100,000
or more persons must sample 25 sites,
one serving 3,301 to 10,000
must sample
3, and one serving 100 or fewer must sample
1.
In
addition to the semi—annual tap water samples, the supplier must
sample each entry point to the distribution system on a biweekly
basis.
A state must review its determination and modify it when
it determines
(on its own initiative or on request)
that such is
necessary to ensure optimal corrosion control.
USEPA has
reserved the prerogative of reviewing state determinations.
In addition to applying optimal corrosion control,
a
supplier that exceeds either the lead or copper action level must
fulfill certain source water monitoring and treatment
requirements.
A source that exceeds either the lead or the
copper action level must undertake the following steps within the
times indicated:
Step 1:
the supplier must complete source water lead and
copper monitoring and make a treatment recommendation
to the state within six months of exceeding the action
level;
Step 2:
the state must make a source water treatment
determination within six months of when the supplier
submits its recommendation;
Step 3:
the supplier must install any source water
treatment within 24 months of when the state submits
its determination;
Step 4:
the supplier must complete follow—up tap water and
source water monitoring within 36 months of when the
state makes its determination;
Step 5:
the state must review the supplier’s installation
and operation of source water treatment and specify
maximum permissible lead and copper concentrations for
the source water within six months of when the supplier
completes its follow-up monitoring; and
Step 6:
the supplier must continue source water~-~~•monitoring
and adhere to the source water lead and copper
limitations on an ongoing basis.
A state must review its determination and modify it when it
01
L~.2-OO78
11
determines
(on its own initiative or on request)
that such is
necessary to ensure that the supplier minimizes the copper and
lead intake from its source water.
USEPA has reserved the
prerogative of reviewing state determinations.
Another activity required of suppliers relates to the
replacement of lead service lines.
A supplier that has
implemented optimal corrosion control or source water treatment,
and which still exceeds the lead or copper action level,
must
undertake a program of replacing the lead service lines
in its
distribution system.
The system must annually replace at least
seven percent of the original number of lead service lines
in its
distribution system.
The state may also require
a supplier that
fails to install optimal corrosion control or source water
treatment when required to do so to begin lead service line
replacement.
The first year of service line replacement begins
on the date the supplier exceeds the lead or copper action level.
After performing a distribution system materials evaluation and
identifying to the state all of the lead service lines
in the
system, the supplier must begin with the seven—percent—per—year
replacement program.
The state may stipulate a shorter
replacement schedule than seven percent per year if it determines
that this is feasible for the supplier.
Certain limitations apply to service line replacement,
however,
and the supplier need not replace all lead lines under
limited circumstances.
The supplier does not need to replace any
individual service line for which it can show that all tap water
samples are taken were less than or equal to 0.015 mg/i lead.
Further,
although the supplier is presumed to control the entire
service line and must replace the entire thing, the supplier is
not required to replace only service lines and portions of
service lines under its control.
The supplier can demonstrate
that a service line or a portion of a service line is beyond its
control.
Where the supplier need only replace a portion of the
service line, the rules provide that it can notify the consumer
that it will replace that portion and tell the consumer that it
will replace the consumer’s portion of the service line at the
consumer’s expense.
The supplier who removes only a portion of
the service line must also conduct sampling after the replacement
and report the results to the consumer if the consumer responds
affirmatively to a required notice of the partial replacement and
offer to sample.
Finally, a supplier may cease its service line
replacement program if the results from two consecutive
monitoring periods indicate lead level is below the action
level.
However, the supplier must recommence replacement at the original
rate if
it later exceeds the lead action level.
Finally,
a supplier that exceeds the lead action level
in
tap water samples must begin a public education program.
The
federal rules specify the content of the printed and broadcast
notices that the supplier must disseminate as part of this
01~~2-O079
12
program.
The notices set forth information on the health effects
of
lead, instruct the consumer how to obtain help
in reducing the
amount of lead in their homes’ plumbing systems and the amount
consumed, how to reduce corrosion in their plumbing systems, how
to obtain laboratory analyses for lead in their water, and how to
have children tested for lead accumulation.
The supplier is to begin its public education program within
60 days of when it fails to meet the lead action level in tap
water samples.
The supplier must insert the specified
information into customers’ water bills; submit the information
to the major local newspapers;
and deliver the information to
local schools, health departments, to certain local childrens’
and womens’
(WIC)
programs, to local hospitals and clinics, to
local pediatricians, to local family planning clinics, and to
local welfare agencies.
The supplier must submit the information
to at least five local radio and television stations serving the
area.
the supplier must periodically repeat this
dissemination--every 12 months for the dissemination to all but
television and radio stations,
to whom the supplier must
disseminate every six months
(a NTNCWS need only disseminate to
consumers,
newspapers, and television and radio stations once a
year).
A supplier can discontinue public education if it met the
lead action level in the most recent monitoring period.
If,
as a
result of this public education effort,
a consumer requests an
analysis for lead in its tap water,
the supplier must collect the
sample, but it is not required to pay for the sampling and
testing.
Thus far, this discussion has primarily focused on the
supplier’s actions
if it exceeds the lead or copper action
levels, requiring it to undertake certain mitigating actions.
There are provisions for reduced monitoring
(aside from those
already cited that allow the cessation of corrective measures
already begun).
If a medium—sized or small system supplier meets
the lead and copper action levels for each of two consecutive
monitoring periods,
it may reduce the number of tap water samples
it collects and reduce the frequency to annual.
The state may
allow any supplier that maintains the range of values for its
water quality control parameters for each of two consecutive
monitoring periods to reduce its tap water monitoring frequency
and the number of samples it takes.
Further,
a medium-sized or
small system supplier that meets the lead and copper action
levels and any supplier that meets its water quality control
parameters
(with state permission)
for each of three annual
(reduced frequency) monitoring periods may further reduce its tap
water monitoring frequency to once every three years.
As with
standard monitoring, the number of required reduced—frequency
samples a supplier must take varies with the size of its
distribution system.
Following the standard-frequency example
given above,
for reduced monitoring the minimum number of tap
water samples for lead and copper for a supplier serving 100,000
ULL~.
u
13
or more persons is 50 sites,
one serving 3,301 to 10,000 must
sample 20, and one serving 100 or fewer must sample
5.
(Systems
must conduct reduced—frequency monitoring during June,
July,
August,~or September.)
Of course, the state may revise its
determinations upon receipt of new monitoring or treatment
information.
Similarly,
there are provisions for reduced monitoring for
water quality parameters.
A system that maintains the range of
values for its water quality control parameters that reflects
optimal corrosion control during each of two consecutive
monitoring periods may collect samples every six months from a
reduced number of sites.
For example a supplier serving 100,000
or more persons must sample 10 sites,
one serving 3,301 to 10,000
must sample
3, and one serving 100 or fewer must sample
1.
After
three consecutive years of monitoring
(six consecutive six—month
monitoring periods) that demonstrates that the supplier has
maintained optimal corrosion control, the supplier may reduce its
frequency to annual, collecting the samples evenly throughout the
year to reflect seasonal variations.
After another three
consecutive years (three annual rounds)
of maintaining the range
of values for optimal corrosion control,
a supplier may reduce
its monitoring frequency to triennial (annual in the original,
since corrected).
If the supplier on reduced water quality
control parameter monitoring fails to maintain optimal corrosion
control,
it must resume standard semi—annual monitoring in the
next—subsequent six—month monitoring period.
The lead and copper rules amend the analytical procedures
for lead and institute procedures
for copper,
pH, conductivity,
calcium,
alkalinity,
orthophosphate, silica,
and temperature.
They also impose recordskeeping and reporting requirements.
Another important aspect of the federal amendments is the
imposition of limitations on the state’s discretion in granting
variances or exemptions
(adjusted standards)
from the general
lead and copper rules.
These include restrictions on the
requirement for the use of bottled water or point—of—use devices
as a condition to relief.
Essentially, these amendments restrict
the state’s discretion as to when the use of bottled water or
point-of-use devices
is possible, and they impose quality control
requirements on the use of bottled water.
JulY 1,
1991 Federal Action-—Phase IIB
On July
1,
1991, at 56 Fed. Reg.
30274, USEPA promulgated
the federal Phase IIB rules.
Since these amendments were
interspersed with corrections to the Phase II rules, the Board
dealt with many of them in the November 19,
1992 order in docket
R91-3.
Those amendments are discussed in the accompanying
opinion of that date.
The still outstanding federal amendments
related to the establishment of one revised and four new MCLs for
chemical contaminants.
USEPA established a revised MCL for one
0 L~2-QO8
I
14
inorganic chemical contaminant, barium, and for four SOCs,
aldicarb, aldicarb, aldicarb sulfone, aldicarb sulfoxide,
and
pentachlorophenol.
This includes the standard public notices for
each of these contaminants.
July 15,
1991 Federal Action--Lead and Copper
On July
15,
1991,
at 56 Fed.
Reg. 32113, USEPA made certain
corrections to the lead and copper rules.
These corrections
changed the effective date for the lead and copper rules to
December 7,
1992
for the corrosion control treatment, source
water treatment,
lead service line replacement, and public
education requirements and the expiration of the old NCL for lead
(from November
9,
1992,
leaving the effective date for monitoring
at July
7,
1991.)
The corrections also modified a provision for
consumer sampling that obviated the consumer handling nitric acid
to preserve the samples.
May 27,
1992 Federal Action——Phase IIB
On May 27,
1992,
at 57
Fed.
Reg.
22178, USEPA imposed a
partial stay of certain of the July
1,
1991 Phase IIB
regulations.
USEPA stayed the new MCLs for three of the SOC5:
aldicarb, aldicarb sulfoxide,
and aldicarb sulfone.
In staying
the substantive limitations for these contaminants, USEPA left
the monitoring and certain of the public notice requirements for
these contaminants intact.
This action did not affect the MCLs
for barium and pentachiorophenol.
June 29,
1992 Federal Action--Lead and Copper
On June 29,
1992,
at 57
Fed. Reg.
28787, USEPA made
corrective amendments to the lead and copper rules.
These
amendments change the effective date statement so that section
141.80,
the federal general provisions section, became effective
on December 7,
1992.
It corrects a cross—reference and sample
names in one section, cross—references in two others,
a reference
to a threshold level
in another section, spelling in a fifth,
a
system size reference in a sixth,
and a reference to an
analytical method in a seventh.
More substantively, the
amendments imposed a limitation on analysis of consumer—obtained
samples until at least 28 hours after acidification.
They also
provide that a supplier required to resume standard tap
monitoring for lead and copper is also required to resume
standard water quality parameter monitoring.
Finally, the
corrective amendments changed the reduced frequency for water
quality parameter monitoring after three consecutive years of
annual testing from annual to triennial.
July 17,
1992-—Corrective Amendment of Lead and Copper in Phase V
Finally, on July 17,
1992 USEPA made a corrective amendment
0 1~2~0082
15
to the lead and copper analytical methods as part of the Phase V
rules
(the subject of docket P.93-i).
This was amendment of
footnote
9 to the table of analytical methods at 40 CFR
141.89(a).
The amendment requires preservation of lead and
copper samples with concentrated nitric acid (at pH less than
2)
and digestion if the sample has turbidity
(1
NTU or greater).
DETAILED SECTION-BY-SECTION—ANALYSIS
The Board amended the SDWA-derived drinking water rules in
response to these federal actions.
In codifying the lead and
copper rules, we created a new Subpart G to contain them.
We
have attempted to make the correlation of state to federal rules
as linear as possible——which is easier in this proceeding than
the Board has found it with previous, federal SDWA rules because
the new federal sections are smaller,
each with a narrower focus
than in the past rules.
Thus,
federal Subpart I,
sections 141.80
through 141.91 appear
in the Illinois rules as Subpart G,
Sections 611.350 through 611.361.
Generally,
it has even been
possible to linearly correlate subsection designations with the
federal rules.
The following detailed discussions indicate those
areas where the Board has found
it necessary to deviate from the
federal structure.
With the above general discussion of the federal actions
involved in this proceeding, the Board discusses the amendments
on a more detailed, section—by—section basis.
This discussion
focuses on the details of the actions taken,
not on the
generalities of the federal actions discussed above.
This
discussion will not repeat that discussion.
Routine, General Amendments——All Sections
As
a routine matter, the Board updates the references to the
Code of Federal Regulations throughout the text of the rules to
the 1992 version.
This volume is now available form the
Government Printing Office.
The General Assembly has derived a
new codification scheme for the statutes, the Illinois Compiled
Statutes, revamping the entire method for citation.
For the
present, citations in the Illinois Administrative Code will
appear in the old format with the addition of the new cite in
brackets.
To implement this scheme,
the Board will amend all
statutory references to “Ill.
Rev. Stat.
1991 ch.
111½, par.
10-—” to read as follows:
“Ill. Rev.
Stat.
1991 ch.
111½,
par.
10——
415
ILCS 5/——)”.
The Board is wary of the overuse of acronyms where such use
could lead to confusion or delete from the readability of
regulations.
An exception to this
is that we will use commonly-
used acronyms if their meaning is clear in context.
In
assembling these amendments, we used “NTNCWS” to describe non—
transient,
non-community water supplies.
The Board believes this
01 L~.2-UO83
16
use is commonly understood, and it will not detract from the
readability of the rules.
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.
We used the special exception permit where the federal rules
allow the state to make a determination based on specified
criteria that allows a supplier to deviate from the standard
monitoring scheme.
We assigned to the “Agency” all
decisionmaking authority delegated to the “state” in the
federal rules that is
in the nature of a permit decision,
and we retained to the “Board” all that is in the nature of
a variance or adjusted standard determination.
Thus,
deviations from the general rule by determinations based on
specified criteria and state designations of optimal
corrosion control, water quality criteria,
source water
control,
etc. were rendered by SEP.
2.
We substituted “supplier”,
to refer to a person who owns or
operates a water supply,
in place of the words “water
supply”, as used in the federal rules.
3.
Where the federal rules require an action “by”
a certain
date,
the Board rendered that as “on or before” that date.
4.
Where USEPA used
““,
“?“,
““,
and
“?“
in narrative text,
the
Board has substituted the narrative language.
5.
The Board added several subsection headings to aid use of
the rules, and where appropriate, we broke longer federal
provisions into several subsections for this same purpose.
6.
We changed various of the subsections to the active voice,
rather than following the federal use of the passive voice.
7.
Whereas USEPA rules provide that the state “designates”
water quality parameters, optimal corrosion control, and
source water treatment, the Board construction differs.
We
believe that Agency designation of these items could put the
Agency in the position of a consulting engineer, or it could
require the Agency to retain a consulting engineer,
if the
Agency is confronted with a supplier that fails to make
appropriate recommendations.
This would be unacceptable.
Rather, the Board changed the rules so the Agency “approves”
the appropriate course.
We requested comment on this issue,
and the Agency responded, by PC
4, that it agrees with the
Board’s approach.
The Agency lacks the resources to either
0!
L~.2-OO8L~
17
retain a consulting engineer or to itself evaluate each
supply in sufficient detail.
8.
In 40 CFR 141.86(a)
and 141.90(a),
USEPA uses the phrase
“tier
1 sampling sites” in relation to both CWS and NTNCWS
suppliers,
“tier
2 sampling sites” and “tier
3 sampling
sites” with regard to CWS suppliers,
describes an
alternative set of sites
a NTNCWS supplier may use,
and
describes an alternative set of sites
a CWS supplier can use
that fits within the definition of CWS tier
2 sampling
sites.
The tier
1 sampling sites are differently described
for CWS and NTNCWS suppliers.
We have defined “CWS tier
1
sampling sites”,
“NTNCWS tier
1 sampling sites”, “CWS tier
2
sampling sites”,
“CWS tier 3 sampling sites”, and
“alternative NTNCWS sampling sites” in Section 611.356(a) (3)
based on the USEPA descriptions of each group.
The Board
further included the CWS alternative sites that fit within
the definition of “CWS tier
2 sampling sites” within that
group.
We do not believe any additional definition of these
terms is necessary for Section 611.360(a) (2)
(corresponding
with 40 CFR 141.90(a) (2)) because the reporting requirement
of that Section specifically references those portions of
Section 611.356(a) (4) under which the supplier made the
determination that triggers the reporting.
9.
In several places, the USEPA rules provide that the state
may undertake an action if
it “concludes” something.
Where
this construction appears, the Board keeps with our standard
construction and use “determines”.
One problem in adapting the federal lead and copper rules
relates to several general exceptions built into the general
rules.
These provisions state that the state may make a
determination that essentially exempts a supplier from certain
requirements.
We have provided in these provisions for a state
determination as “the Agency shall grant
a SEP that exempts the
supplier
.
.
.
if it determines
.“.
That has been the
Board’s general approach to the drinking water rules since the
Phase
I rules of docket R88—26.
However,
in the lead and copper
rules, USEPA includes three provisions that essentially state
that “a supplier is deemed
.
.
.
if
.
.
.“.
We have interpreted
this as “deemed by rule”,
so we have not provided for an Agency
grant of
a SEP under these circumstances.
The exemption flows
automatically from the supplier having met the regulatory
criteria, and no Agency determination is necessary in these
instances.
These “deemed—by—rule” provisions are the following:
Section 611.350(d) (2):
Any supplier that complies with
Agency—approved corrosion control treatment requirements is
deemed in compliance with optimal corrosion control
requirements.
r)
I
!,
‘~
—
L~1~
Uu
18
Section 611.351(b)(l):
Small and medium-sized systems
meeting lead and copper action levels are not required to
complete corrosion control steps.
Section 611.351(b) (3):
Any system is deemed to have
optimized corrosion control
if tap water and source water
monitoring results for two consecutive six—month monitoring
periods indicate that the difference between the 90th
percentile lead level and the highest source water lead
level
is less than the PQL.
The Agency responded in PC
4 to the Board’s request for
comments on this issue.
The Agency states that it agrees with
the Board’s “deemed by rule” interpretation of Sections
611.350(d) (2),
611.351(b) (1), and 611.351(b) (3) that USEPA did
not intend a state approval that would have required the Board to
employ the SEP mechanism for these provisions.
Similarly,
40 CFR 141.86(a) (8)
and
(a) (9)
(corresponding
with Section 611.356 (a)
(4)
(C) and
(a) (4) (D)) has suppliers make a
set of sampling site selections based on criteria set forth.
If
a supplier cannot select all
“tier
1 sampling sites”,
or if it
cannot identify a sufficient number of lead service lines,
it
must submit justifications to the Agency pursuant to sections
141.86(a) (8)
and 141.90(a) (2)
(corresponding with Section
611.356(a) (C) (i) and
(a) (C) (iii))
or 141.90(a)(4)
(corresponding
with Section 611.360(a)(4)).
Despite the informational
submissions required of suppliers,
USEPA does not require the
state to authorize the selection of sampling sites before the
suppliers commence sampling.
Similarly, the 40 CFR 141.88(e) (1)
and
(e)(2)
(corresponding with Section 611.388(e) (1)
and
(e)(2))
provisions for reduced source water monitoring include this
“demonstrates” construction without expressly requiring state
approval of the reduction.
The Board therefore did not imposed a
prior SEP approval under any of these provisions in the proposal
for public comment.
The Board felt that such a requirement could
have unduly burdened the Agency and the suppliers needing to make
these alternative selections, and the Board stated that we were
aware that this segment of the lead and copper program was
already well underway.
On the other hand, USEPA uses
“demonstrate”, which could imply that an Agency determination
(i.e.,
a SEP)
is intended.
The Agency responded in PC
4 to the Board’s request for
comments on this issue.
The Agency urges the Board to employ the
SEP mechanism for prior approval of sampling sites.
It states
that although the prior approval was burdensome, the Agency
believes that prior approval would avoid later invalidation of
data due to “a technicality which related to sample site
location.”
Further, the Agency stated that it must maintain all
decisions relating to alternative site selection on file for
USEPA inspection, and all site locations are being loaded into a
01
L~2-Q086
19
database to assure proper tracking and reporting to USEPA.
On
this basis, the Board has added subsection
(a) (4) (C) (iii) to
Section 611.356 and reworded subsection
(a) (4) (D) (iv)
to provide
for an Agency issuance of a SEP that allows alternative sampling
site selections.
However,
since none of the Agency comments
related to the reduced monitoring provisions of Section
611.388(e) (1) and
(e) (2), the Board did not alter that language
to allow for SEP5 in that regard.
The Secretary of State’s comments,
in PC
3, raise many
useful and a few problenunatic suggestions.
The useful
suggestions relate to a handful of oversights
in
Illinois
Administrative Code
format in assembling the proposal for public
comment.
The problematic suggestions relate to an apparent
recent change in codification style philosophy.
Whereas in the
past the Secretary of State discouraged usages such as
“subsection
(a)
above”, “subsection
(t) (2)
below”,
“subsection
(r) of this Section”, and “Subpart R of this Part”,
PC
3 states
that these are the required form of the rules at this time.
Board staff has over the past few years deleted these forms when
we encountered them in the base text.
Now that we have been
asked to replace them,
a considerable amount of effort has gone
into revising the proposed text to do so.
The Board made all the
changes suggested by the Secretary of State.
Corrections to Existing Microbiological Rules—-Sections 605.101,
605.102, and 611.521
During the course of discussions with the Agency and
regulated community over assembly of the Phase IIB and lead and
copper rules proposal, errors to existing microbiological rules
were cited to the Board.
These revisit Sections 605.101,
605.102, and 611.521, each of which was involved in docket
P.88-
28.
The Agency stated by PC
1 that the addition of a sunset
provision to Sections 605.101 and 605.102 was an error.
These
provisions pertain to microbiological monitoring (Subpart
L)
and
the language as amended in P.88—26 causes them to expire when a
supplier becomes subject to the filtration and disinfection
requirements 611.Subpart B.
The Agency goes further in noting
that Section 611.521 has now fully superseded these older
provisions.
We agree and repeal both Sections.
However, we note
that if there is any supplier to whom these older provisions
might still apply,
a possible alternative to repeal is to amend
the preamble language of both Sections by replacing the reference
to Subpart B with a reference to the Subpart L microbiological
requirements.
The Agency responded to a specific Board request
for additional comment on this issue, in PC
4, by stating that it
was unaware of any public water system to which Sections 605.101
and 605.102 apply.
flI~(~r’
1
~4
~.
-
U
20
The Agency further noted,
in PC
1, problems with Section
611.521.
Subsection
(b)
includes language that would require the
Agency to reduce the routine coliform monitoring frequency of
certain small groundwater-supplied CWS and non-CWS suppliers.
The Agency felt that it was inappropriate to do so.
The Agency
noted that prior to the August
9,
1990 adoption of R88-26,
Section 605.101 stated the minimum sampling frequency was
monthly, which the Agency regarded as adequate for the protection
of public health.
Thus,
the pre-existing monthly-minimum
sampling requirement represents a more stringent state standard
that the Board should not have totally repealed in that docket.
The Agency urged the Board to correct the error and restore the
more stringent state standard by deleting the quarterly reduction
language used by USEPA.
For the reasons stated by the Agency in its earlier PC 1
comments, the Board restores the more stringent state monitoring
frequency reduction provision by deleting the federal quarterly
language.
In doing so, we note further that subsections
(c) (1)
and
(c) (2)
include similar quarterly-minimum language that the
Agency attacked in the discussions that led to the submission of
PC 1.
In response to a Board request for clarification, by PC
4
the Agency noted that the Department of Public Health
(DPH)
regulates non—CWSs,
so the Agency is not the proper person to
urge the deletion of the reduced monitoring language relating to
those suppliers.
Further, the Agency stated that it is aware
that DPH may prefer the reduced monitoring under some
circumstances.
Therefore, we do not delete that similar language
of those two subsections,
as we proposed.
However,
as discussed in the proposed opinion as an
alternative action,
the Board substituted “the Agency” for
references to DPH in the existing language.
The Agency draws to
our attention in PC
4 that the Department of Public Health
(DPH)
will incorporate the provisions of 35 Ill. Adm. Code 611 in order
to comply with its segment of the federal SDWA program.
In doing
so, DPH will render all references to the Agency as meaning DPH.
The Agency states that the Board therefore need not deal with the
“Public Health” versus “Agency” issue in the regulations because
DPH will add a note to its incorporation of the regulations by
reference that explains that “Agency” means DPH.
The Board can
interpret this as meaning that either the references in the rules
should all read “Agency” or that the Board should not make any
change.
We prefer to make the substitution for clarity of our
rules and to avoid the need to substantively amend the rules
should any future re—delegation of au~horityoccur.
We believe
that our Board Notes at the definitions of “Agency” and “Public
Health”in Section 611.101 are sufficient to avoid any possible
confusion resulting from this consistent usage throughout the
test of the SDWA rules.
0!
L~2-0083
21
Definitions——Sections 611.101,
611.350(a)
& 611.640
The definitions section does not derive from any single
provision of the USEPA drinking water regulations.
Although the
federal rules do have
a definitions section
(40 CFR 141.2), and
significant portions of
Section 611.101 derive from that section,
many more of the definitions adopted by the Board derive from
terms and phrases as used and defined by USEPA elsewhere in its
rules.
Where definitions derive from a specific USEPA provision,
a Board Note accompanying the definition so notes.
The Board adds several definitions in response to the
federal amendments.
However, those federal definitions are
limited in applicability to the lead and copper rules.
Therefore, the Board has codified these definitions of limited
scope
as local definitions at subsection
(a)
of Section 611.350,
the introductory provision of new Subpart G, which contains the
lead and copper rules.
This will help to avoid potential
confusion with the general definitions applicable throughout Part
611, and
it will more clearly limit the applicability of the lead
and copper definitions.
Of course, the Board has attempted to
use the federal terms as exactly as possible.
However, the rules
have required occasional changes in phraseology and the addition
of a few additional definitions in order to avoid confusion.
The sole substantive amendment to Section 611.101, the
general definitions Section,
is the amendment of the existing
definition of “maximum contaminant level” in response to the
federal amendment of June 7,
1991,
at 56 Fed. Reg.
26548.
The
definition formerly referenced Section 611.121 for the meaning.
The amendment retains the cross—reference but also includes the
language of the federal definition as amended.
The only
deviation in text is the addition of the word “that”.
The federal amendments to 40 CFR 141.2,
at 56 Fed.
Req.
26547
(June 7,
1991), require the addition of an entire
subsection
(a) to the general lead and copper rules provision,
Section 611.350.
USEPA added definitions of “action level”,
“corrosion inhibitor”,
“effective corrosion inhibitor residual”,
“first draw sample”,
“large water system”,
“lead service line”,
“medium—size water system”, “optimal corrosion control”, “service
line sample”, “single family structure”,
and “small water
system”.
The terms of the federal definitions of “effective
corrosion inhibitor residual”,
“large water system”, “medium—size
water system”,
“optimal corrosion control”,
“single family
structure”, and “small water system” limit their applicability to
federal Subpart
I.
The meanings of the rest of these definitions
are such that their applicability is limited to the lead and
copper rules.
Therefore,
we have made them all purely local
definitions restricted to the purposes of state Subpart G and
dropped all limiting language from the individual definitions
(because such language already appears in the preamble to this
I
I
•~
‘~
U~L~
22
subsection).
However, the Board adds definitions to further
clarify the lead and copper rules:
“exceed”,
“meet”,
“method
detection limit”
(“MDL”), “monitoring period”, “multiple—family
structure”,
“90th percentile level”,
‘!practical quantitation
limit”
(“PQL”),
and at the suggestion of the Agency by PC
4,
“maximum permissible concentration”
(“MPC”).
On a definition—by—
definition basis,
the Board proposes the following definitions
for Section 611.350(a):
“Action level”:
The Board’s found it necessary to deviate
from the federal
language in this definition.
The federal
definition references subsection
(c)
for the actual action
levels.
The Illinois definition replaces a cross—reference
with the actual numbers used by USEPA in 40 CFR 141.80(c) (1)
and
(c) (2).
We accomplish other,
minor changes for clarity.
“Corrosion inhibitor”:
The Board used the federal language
without deviation.
“Effective corrosion inhibitor residual”:
The Board added a
descriptive phrase for clarity.
“Exceed”:
The Board added this definition, as well as a
definition of “meet”,
because throughout the text of the
lead and copper rules, USEPA refers to a supplier that
“meets” or “exceeds” the lead or copper action level as
decisive of the need for further action.
Although the Board
feels that the intended uses of these terms is close enough
to their common English meanings, we believe that defining
them enhances clarity and stresses their pointed use.
“First draw sample”:
The Board made very minor changes from
the federal language for clarity.
“Large system”:
The Board dropped the word “water” from the
phrase as redundant.
This actually eases the usage in the
text,
“large system supplier”.
We also added the limitation
“regularly provides water to” because we believe this
limitation
is intended by USEPA.
The lead and copper rules
apply to CWSs and NTNCWSs.
The definitions of both of those
terms include a “regularly serves” limitation.
The Board
does not believe that USEPA intended this definition to
apply to such public facilities as an amusement park,
restaurant, concert hail,
or sports facility,
that,
although
it serves the requisite number of persons, those persons’
exposure to the water is transient.
“Lead service line”:
The Board made only minor changes in
wording for clarity.
“Maximum Permissible concentration”
(“MPC”):
The Agency
suggested that the Board add a definition of this term to
01 ~~2-009O
23
Section 611.101,
and set forth recommended definitional
language.
We added the definition to this Section because
it is
a purely local definition of
a term used in Sections
611.353 (a) (5),
(a) (6),
(b) (4),
(b) (5), and
(b) (6)
and
611.358 (a) (2) (A),
(d)
,
(d) (1)
,
(e) (1),
(e) (2), and
(e) (3)
At each location where this term or some variation formerly
occurred,
the Board substituted “MPC” because this is the
usage the Agency comment seems to encourage.
We deviated
from the Agency-suggested language in favor of language that
is even closer to that of Section 611.353(b) (4) (B), where
USEPA comes close to defining the term itself.
We further
rendered the definition in a single sentence for greater
clarity.
We added a Board Note to the definition to
indicate its source as Section 611.353(b) (4) (B).
“Medium—sized system”:
The Board rendered this as “medium—
sized” and drops “water”.
We added “regularly provides
water to”.
See discussion of “large system”.
“Meet”:
The Board added this definition.
See discussion of
“exceed”.
“Method detection limit”
(“MDL”):
The Board added this
definition, consistent with its addition to Section
611.646(a)
in R91—3
(Nov.
19,
1992).
This definition cross—
references the Section 611.646(a) definition of this term,
then proceeds to set forth the actual numbers from 40 CFR
141.89 (a) (1) (iii).
A Board Note references the source of
this definition.
We note,
however, that USEPA may have
erred in setting forth the detection limits for lead and
copper.
In 40 CFR 141.89(a) (1) (iii) (A)
and
(a) (1)(iii) (B),
USEPA adds “(only if source water compositing is done under
§ 141.23(a)(4)).”
Initially,
if no source water compositing
is done, there is no MDL for lead and copper.
We do not
believe that this is what USEPA intended.
Second, the Board
did not adopt the 40 CFR 141.23(a) (4)
compositing provision,
and not having a MDL for lead and copper for failure to
adopt an optional provision is not a result the Board
desires.
We requested comment on this matter, and the
Agency responded by PC
4.
The Agency agrees with the
Board’s approach, but it notes that USEPA must determine
whether or not the values relevant to composite sampling
must be included when the state does not allow the use of
composite sampling.
Nevertheless, the Board adds the
definition of MDL because the laboratory certification
provision of Section 611.359 (a) (1) (B) (iii)
depends on a
defined MDL.
“Monitoring period”:
USEPA uses “monitoring period”
in the
text of its lead and copper rules and in its guidance
documents.
It is possible that use of “monitoring
interval”,
rather than “monitoring period”, would avoid
0IL~2-O09
I
24
confusion with the use of “compliance period”, presently
defined at Section 611.101; used throughout Subparts K,
N,
and 0;
and used in the Section 611.358 source water sampling
provisions.
However,
in response to informal •comments made
by the Agency, we retain the federal usage with minimal
exception:
where some interval other than specifically six
months
is intended
(e.g. for Section 611.358
source water
monitoring or Section 611.360 reporting), we used “sampling
period”.
The Board believes that this change in phraseology
and the use of a definition and Board Note will avoid such
confusion.
“Multiple—family residence”:
The Board added this
definition to avoid possible confusion caused by the
presence of
a definition of “single—family structure”.
USEPA defined the latter term,
but not “multiple-family
residence”.
We
infer from the wording used,
“multiple-
family residence”,
from the definition of “single—family
structure” as including commercially—used structures, and
from the lack of a definition that USEPA intends that that
term include only structures actually used as residences.
The definition makes this clear,
as well as the fact that
the focus
is on the structure’s present multiple-family
residential use.
In PC 4, the Agency suggests a correction to the language of
this definition; the Agency found the proposed language
ambiguous.
The Agency suggests deleting the first “that”
in
the sentence.
We agree that the definition was unclear,
however, we believe that adding “is” after the first “that”
makes it clearer.
We did so.
“90th percentile level”:
USEPA uses this phrase, without a
formal “definition”,
in the context of a determination that
has a significant substantive effect on a supplier’s lead
and copper compliance program.
The Board believes that
definition of the phrase will add clarity to the rules.
The
Board Note cites the source of this definition.
“Optimal corrosion control”:
The Board used the federal
language with minimal deviation.
We used “ensuring” in
place of “insuring”.
“Practical quantitation limit”
(“PQL”):
USEPA uses “PQL”
without definition.
Rather, the Board used 40 CFR 141.89—
(a) (3) and
(a) (4) and the federal preamble, at 56 Fed. Reg.
26511-12
(June
7,
1991),
to define these numbers by
implication.
The numbers themselves have sufficient
substantive impact that the Board believes a definition is
desirable.
The Board Note gives the source of this
definition.
01 ~2-0092
25
“Service line sample”:
The Board used the federal language
without deviation.
“Single—family structure”:
The Board made only-minor
modifications to the text of the federal definition for
greater clarity.
Further, we rendered the phrase as
“single—family”,
rather than “single family”, throughout the
text of the rules.
“Small system”:
The Board dropped “water”.
We added
“regularly provides water to”.
See discussion of “large
system”.
We made a minor correction so that “fewer” more
clearly modifies the word “persons”.
Further,
as discussed below with regard to the bottled water
requirements of Section 611.130(e),
the Board added a definition
to Section 611.101:
“Approved source of bottled water”:
This definition derives
from 40 CFR 142.62(g) (2)
and 21 CFR 129.3(a).
USEPA
incorporated the Food and Drug Administration
(FDA)
definition by reference.
The Board added the actual FDA
definitional language with modifications based on certain
difficulties with the federal definition.
This is discussed
more fully below with regard to Section 611.130(e).
We
limited the applicability of this definition to Section
611.130(e)
and added a Board Note as to the source of the
definition and with citation to the various laws of which
the Board is aware that apply to bottled water.
As
discussed below, the Board could not follow the federal
definition exactly.
Revisions to the Analytical Methods/Incorporations bY Reference
and Monitoring and Analytical Provisions--Sections 611.102,
611.359(b),
611.560(a),
611.611,
611.612(f),
611.630(d),
611.646(p),
611.647(1)
& 611.648(1)
&
(m)
At 56 Fed. Req.
26560
(June
7,
1991)
and 57 Fed. Req.
28789
(June 29,
1992)
USEPA added new section 40 CFR 141.59(a), which
sets forth the analytical methods for the lead and copper rules.
This prescribes methods for lead,
copper, pH,
conductivity,
calcium,
alkalinity, orthophosphate,
silica, and temperature.
(The Board has already dealt with the USEPA July
1,
1991,
56 Fed.
Reg.
30275, amendments to the analytical procedures made as part
of the Phase II corrections and Phase IIB rules in docket R91-3/-
P.92-9
(Nov.
19,
1992).)
The Board codified the analytical
methods requirements in the location parallel to that in the
federal rules,
while setting forth the version information in
Section 611.102, the incorporations-by-reference Section.
This
is our usual practice in identical—in—substance proceedings.
The effect of the new lead and copper rules methods
is to
01
L~.2-O093
26
add new methods for copper
(although the Board’s rules set forth
methods at Section 611.611 that relate to the state-only MCL for
copper),
pH, conductivity,
calcium, alkalinity,
orthophosphate,
silica, and temperature, and to amend the priormethods for lead,
at 40 CFR 141.89(a)
(corresponding with 35 Ill.
Adm. Code
611.359(b))
The prior federal methods for lead are still codified at 40
CFR l41.23(q)(8)
(corresponding with Section 611.612(f) (3)).
Although USEPA deleted the MCL to which the federal methods
applied,
it did not delete the methods themselves.
The Board
deletes the methods for lead at Section 611.612(f),
in order to
avoid any possible confusion with the methods at Section
611.359(b).
Similarly, we delete the methods for the state—only
MCL for copper at Section 611.612(f) (5)
because,
as discussed
with the segment on MCL5, the Board is deleting the state-only
copper MCL as
less stringent than and incompatible with the
federal scheme of regulation.
Based on the federal action in adopting the lead and copper
rules, the Board makes the following methods changes
(* denotes
that a parallel deletion,
amendment,
or addition to Section
611.102(b)
incorporations by reference is also necessary):
Lead:
Deletion of ASTM Methods D3559-78A* and D3559-78B*,
Standard Methods
(14th edition)
301A (II)* and 301A (III)*
(neither any longer used for any contaminant), USEPA
Inorganic Methods 239.1 and 239.2, and ICP Method 200.7 from
Section 611.612(f) (3)
and addition of ASTM Method D3559—
85D*, USEPA Inorganic Method 239.2, Standard Method
(17th
edition)
3113*,
ICP-MS Method 200.8*, and AA-Platform
Furnace Method 200.9* at Section 611.359(b) (1).
Copper:
Addition of USEPA Inorganic Methods 220.1 and
220.2; ASTM Methods D1688—90A* and D1688—90C*; addition of
Standard Methods
(17th edition)
311l—B*,
3113*,
and 3120*;
ICP Method 200.7, rev.
3.2*; ICP-MS Method 200.8*; and AA—
Platform Furnace Method 200.9* at Section 611.359(b) (2), and
updating ASTM Methods D1688—84D* and D1688-84E* to methods
D1688_90A* and D1688-90C*; Standard Methods
(16th edition)
303A, 303B*
(no longer used for any contaminant), and 304 to
methods
(17th edition)
3111-A*,
3113*,
and 3120*; updating
ICP Method 200.7 to rev. 3.2* and adding ICP-MS Method
200.8* and AA-Platform Furnace Method 200.9* at Section
611. 612 (f) (4)
(formerly subsection
(f) (5)).
pjj~ Addition of USEPA Inorganic Method 150.1, ASTM Method
D1293_84B*, and Standard Method
(17th edition) 4500-H~*at
Section 611.359(b) (3).
Conductivity:
Addition of USEPA Inorganic Method 120.1,
UI
L~’U
27
ASTM Method D1125-82B*,
and Standard Method
(17th edition)
2510* at Section 611.359(b)
(4).
Calcium:
Addition of USEPA Inorganic Methods 215.1 and
215.2; ASTM Methods D5l1-88A* and D5l1—88B*; Standard
Methods
(17th edition)
3500—Ca D*,
3111-B*, and 3120*; and
ICP Method 200.7,
Rev. 3.2* to Section 611.359(b) (5).
Alkalinity:
Addition of USEPA Inorganic Method 310.1, ASTM
Method D1067-88B*, Standard Method
(17th edition)
2320*,
and
USGS Method 1—1030-85 to Section 611.359(b) (6).
Orthophosphate:
Addition of USEPA Inorganic Methods
365.1,
365.2,
and 365.3; ASTM Method D515—88A* and D4327—88*;
Standard Methods
(17th edition)
4500-P E* and 4110*; USGS
Methods 1—1601—85,
1—2601—85,
and 2598—85; and Ion
Chromatography Method 300.0* to Section 611.359(b) (7).
Silica:
Addition of USEPA Inorganic Method 370.1; ASTM
Method D859-88*; Standard Methods (17th edition) 4500-Si
D*,
E*, and F*; USGS Methods 1-1700-85 and 1-2700—85; and ICP
Method 200.7,
Rev.
3.2* to Section 611. 359(b) (8).
Temperature:
Addition of Standard Method
(17th edition)
2550* to Section 611.359(b) (9).
In addition to adoption of the new methods, the federal lead
and copper rules have prompted a number of unrelated chemical
analytical amendments throughout the text of several provisions
of Part 611.
The Board hoped to ease identification of these
methods in the text of the rules where their names appear.
These
changes were based on commonly used references to them.
The Board renamed what formerly appeared as “Inorganic
Methods” and “Organic Methods”
(“Methods for Chemical Analysis of
Water and Wastes” and “Methods for the Determination of Organic
Compounds in Drinking Water”), both by USEPA and cited by USEPA
as “EPA” methods, to “USEPA Inorganic Methods” and “USEPA Organic
Methods”.
We believe that using these names used also by USEPA
will more clearly identify these references where they appear
throughout the various analytical Sections.
With the advent of a new inductively-coupled plasma method,
the updating of an existing one, and a new atomic absorption
spectrometric method, we believe redesignating these methods will
more clearly identify each.
Thus, the former “Inductively
Coupled Plasma Method” became “ICP Method 200.7”, updated
inductively-coupled plasma method 200.7, rev.
3.2 became “ICP
Method 200.7, Rev.
3.2”,
new inductively—coupled plasma—mass
spectrometry method 200.8 became “ICP-MS Method .200.8”, and new
atomic absorption—platform furnace method 200.9 became
“AA—
Platform Furnace Method 200.9” where each of these appear in
0!
~~.2-QO95
28
analytical Sections.
Similarly,
the Board rendered the new ion
chromatography method 300.0 as “Ion Chromatography Method 300.0”.
Finally, on July 17,
1992 USEPA made a corrective amendment
to the lead and copper analytical methods as part of the Phase V
rules
(the subject of docket R93—1).
This was amendment of
footnote 9
to the table of analytical methods at 40 CFR
141.89(a).
The amendment requires preservation of lead and
copper samples with concentrated nitric acid
(at pH less than
2)
and digestion if the sample has turbidity
(1 NTU or greater).
Footnote
9 originally required analysis on unfiltered samples and
reporting of total copper and/or lead.
Board staff erroneously
omitted the content of that note from the proposal for public
comment.
The Board added the footnote as corrected by USEPA with
the Phase V rules because we believe that delay could render the
state lead and copper program significantly less stringent than
the federal program.
Agency Inspection Authority--Section 611.107
This provision was not part of the proposal for public
comment.
Rather, the issue of Agency inspections arose
in the
context of an Agency request to add Sections 611.130(f) (8) and
611.280(g)
to authorize it to conduct inspections of point-of-
entry devices used as a condition to variance or adjusted
standard relief from an MCL or to comply with a MCL.
As
discussed below, the Board declined to add the requested
condition.
However, we believe it necessary to make it clear on
the face of the SDWA regulations that the Agency possesses
certain authority to conduct routine inspections of public water
supply facilities.
This authority does not flow from the Board;
rather,
it flows from Sections 4(c)
and 4(d)
of the Act.
Therefore, this new Section sets forth in two subsections
language that parallels those provisions of the Act.
We set
it
forth in this general Section, rather than at Sections 611.130
and 611.280(g),
as requested by the Agency, because we feel that
this inspection authority has broader implications than the
narrow context in which the Agency raised the issue.
The Board does not intend to appear to either broaden or
circumscribe the authority conferred by the Act.
A Board Note
cites this fact.
In incorporating the statutory language into
this Section, the Board omits an apparently erroneous comma that
appears in Section 4(d)(1) from the text of subsection
(b).
Again, we do not intend that this modify the Agency’s
statutorily-conferred authority.
Special Exception Permits——Section 611.110
The federal lead and copper regulations in two places
include mandates for a supplier to provide information to the
state on request.
These are in the context of the state
01 f.~2-D096
29
designation of optimal corrosion control, at 40 CFR 141.82(d) (2)
(corresponding with Section 611.352(d) (2)),
and the state
determination of source water treatment, at 40 CFR 141.83(b) (2)
(corresponding with Section 6l1.353(b)(2)).
The Board does not
believe that adding this mandate to the text of the rules would
create any affirmative duty.
Whatever authority the Agency would
have to demand information would derive from the Environmental
Protection Act, and not from Board rules.
However, since this is
a federal requirement that USEPA will
seek in reviewing the Illinois SDWA regulations, we believe
it
necessary to codify some obligation to submit requested
information.
The Board believes that the SEP provisions
is the
appropriate place for such a requirement because the Agency will
designate optimal corrosion control treatment and source water
treatment by SEP.
New subsection
(f)
restates the Agency’s legal
authority in this context.
It provides that if a supplier
refuses to submit necessary additional information on request or
in a timely manner, the Agency may either deny the SEP or grant
it with conditions.
At 40 CFR 142.18
(1992), the federal rules reserve in USEPA
the authority to review and nullify Agency determinations of the
types.
These are state determinations made pursuant to 40 CFR
141.23(b),
141.23(c),
141.24(f),
141.24(h),
and 141.24(n)
(corresponding with Sectiox~s611.602,
611.603,
611.646, 611.648,
and 611.510)
and, at 40 CFR 141.82(i)
and 141.83(b) (7)
(corresponding with Section 611.352(1)
and 611.353(b) (7)) and
142.19
(1992), the discretion to establish federal standards for
any supplier, superseding any state determination made pursuant
to 40 CFR 141.82(d),
141.82(f),
141.83(b)(2), and 141.83(b)(4)
(corresponding with Sections 611.352(d), 61l.252(f)(f),
611.353(b) (2), and 611.353(b) (4))
.
These include state
authorizations to reduce inorganic chemical contaminant, VOC, and
SOC monitoring frequencies; to designate optimal corrosion
control and water quality parameters; and to designate source
water treatment and maximum permissible source water lead levels.
The Board has included a Board Note at Section 611.110
citing USEPA’s reservation of authority.
We also included at
Sections 611.352(i)
and 611.353(b) (7) text nearly identical to
that which appears at 40 CFR 141.82(i) and 141.83(b)(7).
The
Board does not believe that this language has any substantive
effect, but it does make USEPA’S reservation clear,
and USEPA may
consider this language an essential element of the Illinois
program.
We also made a minor correction to the existing text of
Section 611.110.
We corrected segments of subsections
(b) and
(c)
as follows:
“a —SEP”, to delete the extra space.
01 i:.2-0097
30
Limitations on Board-granted SDWA Adjusted Standards and
Variances——Sections 611.111,
611.112, 611.113
& 611.130
Similar to USEPA review of Agency SEP determinations,
at 40
CFR 142.23 USEPA reserves the prerogative of reviewing and
negating Board SDWA §S 1415 and 1416 variance and adjusted
standard determinations.
As we included a note to this effect in
the Board Note to Section 611.110, the Board included a note
relating USEPA’s section 142.23 reservation in the Board Notes to
Sections 611.111 and 611.112.
The federal lead and copper rules include amendments to 40
CFR 142.62
that impose substantive limitations on the Board’s
discretion to grant variances and exemptions
(adjusted
standards).
As a result of these amendments,
the Board carefully
reviewed the federal Part 142 amendments for other,
similar
substantive limitations.
Although 40 CFR 142 generally sets
forth the federal requirements for state programs and the
procedures for federal review of those programs, the Board’s
review revealed that 40 CFR 142,
Subpart G does include some
additional limitations on Board discretion.
40 CFR 142, Subpart G includes a number of USEPA limitations
on a state’s discretion to grant certain relief from some of the
drinking water rules.
Most would require the state to impose
very definite conditions when granting relief.
Two of them
prohibit certain relief altogether, and one imposes a limitation
on the nature of the relief.
The provisions for which Subpart G
limits relief include the following:
inorganic chemical contaminant MCL5 of 40 CFR 141.62
(corresponding with Section 611.301),
the fluoride MCL of that section
(given separate
consideration),
the VOC and SOC MCL5 of 40 CFR 141.61 (corresponding with
Section 611.311),
the TTHM MCL of 40 CFR 141.12
(corresponding with Section
611.310 to the extent that MCL applies to a CWS that apply
disinfection and which regularly serve 10,000 or more
persons),
the corrosion control treatment requirements of 40 CFR
141.81 and 141.82
(corresponding with Sections 611.351 and
611.352)
the source water treatment requirements of 40 CFR 141.82
(corresponding with Section 611.353),
the lead service line replacement requirements of 40 CFR
OiL~.2-QQg8
31
141.84 (corresponding with Section 611.354),
the 40 CFR 141.63 MCL for total coliforms (corresponding
with Section 611.325), and
the filtration and disinfection requirements of 40 CFR 141,
Subpart H and 141.72(a) (3) and (b)(2)
(corresponding with
Subpart B and Sections 611.241(c)
and 611.242(b),
respectively)
The federal restrictions vary according to the requirement
from which relief is sought and the type of relief sought:
A ~1415(a) (1) (A) variance from an inorganic chemical
contaminant,
a SOC,
or a VOC MCL of 40 CFR 141.61 or 141.62:
The supplier must have first applied BAT, unless the
supplier can demonstrate that application of the best
available control technology
(BAT) would result in only a
“de minirnis”
reduction in contaminant.
If the supplier has
not applied BAT,
a condition to relief must require ongoing
examination of specified alternative methods for reduction.
If a “technically feasible” method becomes apparent, the
supplier must apply that alternative.
The State may impose
a condition requiring the supplier to use bottled water,
point—of-use devices,
or point—of—entry devices to avoid
unreasonable risk to public health.
(40 CFR 142.62.)
A c1415(a) (1) (A) variance from the TTHM MCL of
40 CFR 141.61
and the fluoride MCL of 141.62:
A condition to relief must
require the supplier to apply BAT, unless the supplier can
show that BAT is not “available and effective” for TTHM or
fluoride control.
If the supplier does not apply BAT,
a
condition to relief must require ongoing examination of
specified alternative methods for reduction.
If an
alternative method appears “available and effective”, the
supplier must apply that alternative.
The State may
impose a condition requiring the supplier to use bottled
water, point—of—use devices,
or point—of—entry devices to
avoid unreasonable risk to public health.
(40 CFR 142.60.)
Any variance or exemption from the optimal corrosion control
treatment requirements of
40 CFR 141.81 or 141.82:
The
State may impose a condition requiring the supplier to use
bottled water or point—of—use devices to avoid unreasonable
risk to public health, but the state may not require the use
of point-of—entry devices.
(40 CFR 142.62(f).)
Any variance or exemption from the source water treatment
requirements of 40 CFR 141.83 and the lead service line
requirements of
40 CFR 141.84:
The State may impose a
condition requiring the supplier to use point-of-entry
devices to avoid unreasonable risk to public health.
0L:.2-0Ogg
32
However,
the supplier must assure that the use will not
cause increased corrosion of lead— and copper—bearing
materials so as to cause increased contaminant levels at the
tap.
(40 CFR 142.62(f)
&
(h)(7).)
If bottled water is used pursuant to a condition of relief
from an MCL or from the corrosion control treatment,
source
water treatment,
or service line replacement requirements:
The supplier must monitor the water annually for all
contaminants and report the results annually to the state.
The supplier must receive the bottled water supplier’s
certification the bottled water supplier is an FDA-approved
source, that it monitors the water provided in compliance
with FDA regulations, and that the water complies with the
FDA rules, and the supplier must provide all persons on its
distribution system with “sufficient quantities” of bottled
water by door-to-door delivery.
(40 CFR 142.62(g).)
If a point-of—entry or point—of—use device is used pursuant
to a condition of relief from the source water treatment or
service line replacement requirements:
The supplier must
assure the state that it will properly operate and maintain
the device; that the use will provide equivalent health
protection; that the supplier will assure the
microbiological safety of the use; that is has adequate
standards of performance; that it has field tested the
device; that it has conducted an engineering design review;
that the operation and maintenance of the devices will
account for any increased microbiological activity due to
the device; that it will provided those on its distribution
system with sufficient devices properly installed,
maintained,
and monitored to protect all persons; and,
if
a
point—of—entry device required for relief from the treatment
requirements of the lead and copper rules, that no increased
corrosion will occur to lead and copper bearing materials in
its distribution system through the use of the devices so
that elevated lead and copper levels result at the tap.
(The state may not require a supplier to use a point—of—
entry device as
a condition of relief from corrosion control
treatment requirements.)
(40 CFR 142.62(h).)
Limitation of variances and exemptions from total coliform
MCL:
A state may not grant a variance or exemption
(adjusted standard)
from the MCL for total
coliforins unless
the violation is due to inadvertent persistent growth.
(40
CFR 142.63.)
Prohibition against variances from the filtration and
disinfection requirements or exemptions from the residual
disinfectant concentration requirements:
A state may not
grant an exemption (adjusted standard) from the residual
disinfectant concentration requirements.
(40 CFR 142.64.)
01L~2-0
100
33
Of all the substantive limitations
in 40 CFR 142,
Subpart G,
only those of section 142.62(f)
and
(h) (7) are new at 56 Fed.
Req.
26562
(June
7,
1991).
These new restrictions relate to the
use of point—of-use and point—of—entry devices for relief from
the lead and copper rules.
The balance of the restrictions in
this federal subpart evolved with the federal drinking water
program.
USEPA adopted the section 142.60 provisions relating to
relief from the TTHM MCL on Feb.
28,
1983
(48 Fed. Reg.
4814).
USEPA adopted section 142.61, relative to relief from the
fluoride MCL on April
2,
1986
(51 Fed.
Req.
11411).
Both
sections have thus remained without amendment.
USEPA adopted the section 142.62 provision relative to SOCs
with the Phase
I rules,
on July 8,
1987
(52 Fed. Reg. 25716),
making corrective amendments on July 1,
1988
(53 Fed. Reg.
25111).
USEPA amended it with the Phase II rules on January 30,
1991
(56 Fed. Reg.
3596).
Those amendments dropped the
applicability to “synthetic organic chemicals”,
in the generic
sense,
in favor of applicability to VOCs and SOCs,
as used in the
Phase II rules.
The references to the BATs became contaminant—
specific, renumbering of subsections occurred, and the wording
changed for certain of the renumbered subsection
(h) restrictions
relating to point-of-use and point-of-entry devices.
With the
lead and copper rules,
on June 7,
1991
(56 Fed. Reg. 26563),
USEPA added the limitation to subsection
(f) that suppliers could
not use point-of—entry devices as a condition for relief from the
lead and copper corrosion control treatment requirements, while
allowing their use as a condition to relief from the service line
replacement or source water treatment requirements.
USEPA also
added paragraph
(h) (7), which requires assurance that any use of
a point—of—entry device as a condition to relief not cause
increased corrosion of lead— and copper—bearing materials so as
to increase contaminant levels at the tap.
USEPA adopted the section 142.63 ban on variances and
exemptions
(adjusted standards)
from the MCL for total coliforms
and the similar section 142.64 ban with regard to disinfection
and filtration requirements in separate actions on June 29,
1989
(54 Fed. Req. 27568
& 27540,
respectively).
USEPA subsequently
amended section 142.63 on January
15,
1991
(56 Fed. Req.
1557),
staying its effect for certain systems that can demonstrate that
their violation of the total coliform MCL is due to persistent
growth, rather than from fecal or pathogenic contamination,
from
a treatment lapse, or from operational or maintenance problems.
We note that in the Phase
I corrections, USEPA required the
Board to adopt the limitations of
40 CFR 142.63 and 142.64
in
order to maintain Phase
I primacy.
(See November 19,
1992
opinion and order in R91-3/R92-9).
The Board had not included
these two restrictions in docket P.88-26.
USEPA cited this as a
01 ~2-O
101
34
programmatic deficiency that threatened state primacy unless
corrected.
The Board adopted them in the docket
P.92-9
Phase
I
corrections because we did not want to lose state primacy in this
program.
From that experience the Board learned that---USEPA
considers some of the 40 CFR 142,
Subpart G provisions
as
substantive limitations that it considers essential elements of
the state program.
The Board believes that the rest of the federal Subpart G
provisions are substantive limitations on state authority to
grant variances and exemptions
(adjusted standards)
.
We also
believe that as substantive limitations,
it is within the
interest of the state that the Board adopt them in order to
maintain state primacy.
The balance of the Subpart G
restrictions appear very similar to those of sections 142.63 and
142.64, with the exception that the these two sections that USEPA
has already required the state to adopt are outright prohibitions
against relief, whereas the balance of the provisions appear as
limitations on relief granted.
We do not perceive this as
a
distinction with a difference.
Thus, the Board believes we are
required to adopt them in order to maintain state primacy.
For
this reason we propose not only the limitations adopted by USEPA
with lead and copper, but also the pre-existing Phase I and Phase
II segments of this section.
The Board’s approach to the federal limitations on state
authority to grant variance or exemption (adjusted standard)
relief has been to try to retain the essence of the federal
language while compressing the entire federal subpart into a
single section.
This is possible by rewording the limitations
and using cross—references to other Sections for BAT where
possible.
Because sections 142.60,
142.61, and 142.62(e)
require
the state to impose an alternative treatment when one appears
viable, we have added, as subsections
(a) (2) and
(a) (3),
(b) (2)
and
(b) (3), and
(c) (2) and
(c) (3), paired duties for the supplier
to submit results of ongoing investigations to the Agency and for
the Agency to petition the Board to reconsider the relief
if it
determines that the alternative treatment viable.
We referenced
35 Ill. Adm. Code .01.Subpart
K for the authority for the Agency
to move for reconsideration, without intending to foreclose the
Agency from being able to do so if it makes the necessary finding
relative to an alternative method.
The Board has placed all the restrictions in new Section
611.130 as follows:
Subsection
(a) derives from 40 CFR 141.60.
This relates to
the application of BAT as
a condition to relief from the MCL
for TTI*I.
USEPA uses the phrase “available and effective”
as the key to whether application of BAT is required,
it
then goes on to define this as “technically appropriate and
technically feasible for that system or would only result in
011.2-tJf
02
35
a marginal reduction in TTHM for the system”.
The Board
dropped the “available and effective” phrase in favor of
using the definitional language directly.
We note (and add
language to subsection
(b) (1) and to the Board Note to this
subsection) that this limitation applies only to certain
suppliers.
USEPA regulates
TTHM
for CWS suppliers that add
a disinfectant at any stage of treatment and which regularly
provide water to 10,000 or more persons.
In PC 4 the Agency
suggested that the Board revise the language as originally
proposed, and in response, the Board corrected the proposed
“and” to “an” in
the
first
line
and
the
conjunction
“and”
to
“or” at the end of subsection
(a) (4) (B).
Subsection
(b) derives from 40 CFR 141.61.
This relates to
the application of BAT as a condition to relief from the MCL
for fluoride.
It
is very similar to the provision for TTHN,
except “available and effective” means “technically
appropriate and technically feasible for the system” in the
changed context.
This provision applies only to CWS
suppliers.
We have revised the language accordingly.
Subsection
(c) corresponds with 40 CFR 142.62(a) through
(e).
These subsections apply to the CWS and NTNCWS
suppliers’ application of BAT as a predicate or condition to
relief from an inorganic chemical contaminant,
a VOC, or a
SOC MCL.
As for the TTHN and fluoride provisions of section
142.60 and 142.61,
it imposes an ongoing obligation to seek
an alternative means of contaminant reduction as a condition
to relief, unless the supplier makes a necessary showing.
The showing,
however,
is not “available and effective”.
Rather, the supplier must show that application of BAT would
only result in a
“de ininimis
reduction in contaminants”.
The Board has rendered this as “minimal and insignificant
reduction in the level of contaminant”.
The Board cross—
referenced other, existing provisions for identification of
BAT for the contaminants.
In response to PC
4, the Board
changed the opening language of subsection
(c) (1)
for
clarity and consistency with the other subsections and to
correct an apparent omission from the proposal for public
comment.
We deviated from the language suggested by the
Agency in favor of a more direct opening clause.
Subsection
(d) corresponds with 40 CFR 142.62(f).
This
provision allows a state to require the use of bottled
water, point—of—entry devices,
or point—of—use devices to
avoid an unreasonable risk to public health when granting
relief from an inorganic chemical contaminant,
a VOC, or a
SOC MCL.
Originally, this provision did not appear to limit
state ‘discretion.
However,
as amended with the lead and
copper rules,
it includes an expressed limitation on the use
of devices.
It expressly prohibits the use of point—of—
entry devices as
a condition to an exemption (adjusted
OU:.2-1J
03
36
standard)
from the corrosion control treatment requirements.
It states that the state may require their use as a
condition to relief from the source water treatment or lead
service line requirements, which may implicitly-limit the
similar use of point-of-use devices for this purpose, but
the Board cannot now determine whether this is true.
The
Agency, by PC
4, recommended that USEPA comment on this
language because the intent of the federal regulations is
unclear.
Subsection
(e) corresponds with 40 CFR 142.62(g).
This
provision includes restrictions that the state must impose
on those using bottled water as a condition to relief.
Those using bottled water as a condition to relief must
either initiate testing for the inorganic chemical
contaminants, the VOCs, and the SOC5 and provide sufficient
water door—to—door to all persons on its system,
or the
supplier must obtain certain assurances from a supplier of
FDA—approved bottled water that complies with FDA rules and
assure adequate door—to—door provision to all persons it
serves.
In drafting, federal paragraph
(g) (1)
became
subsection
(e) (1) through
(e) (3), paragraph
(g) (2) became
subsections
(e) (4)
and
(e) (5), and paragraph
(g) (3) became
(e) (6).
The Board omitted the portion of federal paragraph
(g) (2) that provided that a sister state’s monitoring
program was sufficient.
If the Board were to codify this,
we would expand the subsection by adding a new subsection
(e) (6)
and making proposed subsection
(e) (6)
into subsection
(e) (7).
However,
Illinois administrative law would not
allow us to grant a blanket approval to all sister state’s
bottled water monitoring programs.
In response to PC
4, the
Board added the word “meet” to the preamble of this
subsection to correct an apparent omission from the proposal
for public comment.
In PC
4 the Agency suggested that the Board should add some
provision for Agency approval of the bottled water quality
plan.
We decline to do so because of the context of this
provision.
The approval of the bottled water quality
monitoring plan occurs in the course of an adjusted standard
or variance proceeding.
These are Board determinations made
pursuant to Section 28.1
or 35 and 36 of the Act; they do
not in any way involve the Agency’s permitting authority
under Section 39.
While we agree that this is “a technical
determination”, we do not agree that it “creates a situation
in which the Board may approve of a monitoring plan which
may initially appear sound but which does not meet the
concerns of the Agency)
.
.
. .“
The Act and the Board’s
procedural rules require Agency participation in all
adjusted standard and variance proceedings.
They further
require the filing of an Agency recommendation early in the
process, and they allow Agency participation throughout the
01
L~2-U
10~
37
process of hearings and briefs.
These procedures allow
ample time for the Agency to review, comment on, and present
alternatives to any monitoring plan submitted by a
petitioner.
The procedures allow ample opportunity for
“Agency agreement to the plan” without adding an express
provision to the subsection.
However,
if the Agency
actually desires that the Board go further and make prior
Agency agreement a precondition to relief, which is not
entirely clear from the Agency’s comments, such an addition
is not within the Board’s statutory authority without
violating a petitioner’s due process rights.
Attached to PC 4
is
a letter from the Department of Public
Health
(DPH) to the Agency.
The Agency urges the Board to
expand subsection
(e) (4) (A) to further define “approved
source” in terms of state statutes and regulations also.
The DPH letter states that Illinois has no licensing
requirements for water bottled elsewhere; rather,
Illinois
depends on the sister state’s requirements where the water
was bottled.
The letter cites numerous requirements that
water bottled in Illinois must meet:
the Illinois Food,
Drug and Cosmetic Act
(410 ILCS 620/1 et
seq.,
formerly Ill.
Rev. Stat.
1991 ch.
56½,
par. 501 et
seq.),
the Bottled
Water Act (815 ILCS 310/1 et
seq.,
formerly Ill. Rev.
Stat.
1991 ch.
111½,
par. 121.101), the DPH Water Well
Construction Code
(77 Ill.
Adm.
Code 920), the DPH Water
Well Pump Installation Code
(77 Ill.
Adm. Code 925), the
federal bottled water quality standards
(21 CFR 103.35), the
federal drinking water processing and bottling standards
(21
CFR 129), the federal Good Manufacturing Practices for human
foods
(21 CFR 110),
and the federal Fair Packaging and
Labeling Act (15 U.S.C. §~1451 et
seq.
and 21 CFR 201).
However, nowhere does either the letter or the Agency
comment specifically cite any provisions for source
approval.
Further,
a call by Board staff to the author of
the DPH letter shed no further light as to a state
“approval” mechanism for water bottlers.
DPH related that
it does not engage in any formal “certification” of bottled
water sources.
To fully understand the Agency’s request,
the Board refers to the federal definition of “approved
source” at 21 CFR 129.3(a):
“Approved source”
.
.
.
means a source of water
and the water therefrom, whether it be from a
spring, artesian well, drilled well, municipal
water supply, or any other source, that has been
inspected and the water sampled,
analyzed, and
found to be a safe and sanitary quality according
to applicable laws and regulations of State and
local government agencies having jurisdiction.
The presence in the plant of current certificates
0! L~2-0
105
38
or notations of approval from the government
agency or agencies having jurisdiction constitutes
approval of the source and the water supply.
This means that the Board rule must allow the use of bottled
waters from suppliers that comply with
aJ..
applicable
laws.
This is problematic because the Board has no way of
enumerating all the possible statutes, regulations,
ordinances, and other
laws with which a bottled water
supplier must comply.
We do not even have a clear
indication of what laws require “certificates or notations
of approval”.
For this reason, we believe that we cannot
literally comply with the Agency’s request, but we also see
the flaw in the definition of “approved source”, as codified
at 40 CFR 142.62(g) (2)
and proposed by the Board at
subsection
(e) (4) (A).
The closest the Board can come to following the federal
definition is to set forth the majority of the text of FDA’s
21 CFR 129.3(a) definition as follows:
“Approved source of bottled water”, for the
purposes of Section 611.130(e),
means
a source of
water and the water therefrom, whether
it be from
a spring, artesian well, drilled well, municipal
water supply,
or any other source, that has been
inspected and the water sampled, analyzed, and
found to be a safe and sanitary quality according
to applicable laws and regulations of State and
local government agencies having jurisdiction, as
evidenced by the presence in the plant of current
certificates or notations of approval from each
government agency or agencies having jurisdiction
over the source, the water it bottles, and the
distribution of
the water in commerce.
BOARD NOTE:
Derived from 40 CFR 142.62(g) (2)
and
21 CFR 129.3(a)
(1992).
The statutes and
regulations of which the Board is aware are the
following:
the Illinois Food,
Drug and Cosmetic
Act
(410 ILCS 620/1 et
seq.,
formerly Ill. Rev.
Stat. 1991 ch.
56½,
par. 501 et
seq.),
the Bottled
Water Act
(815 ILCS 310/1 et
seq.,
formerly Ill.
Rev.
Stat.
1991 ch.
111½, par. 121.101),
the DPI!
Water Well Construction Code
(77 Ill.
Adm. Code
920), the DPH Water Well Pump Installation Code
(77 Ill. Adm. Code 925), the federal bottled water
quality standards (21 CFR 103.35),
the federal
drinking water processing and bottling standards
(21 CFR 129), the federal Good Manufacturing
Practices for human foods
(21 CFR 110),
the
federal Fair Packaging and Labeling Act
(15 U.S.C.
SS
1451 et
seq.),
and the federal Fair Packaging
01420106
39
and Labeling regulations
(21 CFR 201).
Thus,
the defined term became “approved source of bottled
water” to avoid confusion with any other terms used in the
Illinois SDWA regulations.
The Board further cited all the
laws we could find that might govern a bottled water source,
in response to the Agency’s request.
We added the actual
definitional language to avoid the problems with the federal
language and to avoid a needless incorporation by reference.
However, we are not entirely comfortable in adopting this
definition.
We adopt this definition only because we
believe
it is required for USEPA approval of Illinois
primacy.
Further, since the definitional language applies
to the person or entity who bottles the water, we
substituted the term “approved source of bottled water”
for
“bottled water company” in subsection
(e) (4) (B).
Finally,
the Agency suggests in PC
4 that the Board add the
word “affected” before the word “person” in subsection
(e) (6)
to limit the scope
of this provision.
Subsection
(e) (6) requires the supplier to assure adequate provision of
bottled water by door-to-door delivery to “persons supplied
by the supplier”.
The Agency highlights the need to limit
the scope of this requirement so that only persons affected
by the drinking water provided by the supplier need be
provided with door-to-door delivery of bottled drinking
water.
The Agency uses the example of relief from the
nitrate MCL, for which the population at risk is infants
under six months old.
Thus,
as the Agency would have the
Board modify this provision,
a necessary condition to
providing bottled water as a condition to adjusted standard
or variance relief from the nitrate
(and/or nitrite)
MCL,
the water supplier must provide door—to—door delivery of
bottled water to households that include an infant under six
months old.
The Board agrees, and we have modified the
language of this subsection accordingly.
Subsection
(f) corresponds with 40 CFR 142.62(h).
This
provision includes limitations on the use of point—of—entry
and point—of—use devices as a condition to relief.
The
unique aspect of this set of restrictions is that they apply
to any PWS granted relief from a National Primary Drinking
Water Regulation (NPDWR), not just from lead and copper or
MCL requirements.
The thrust of the requirements is to
assure proper installation, operation,
and maintenance of
these devices, that their use does not result in increased
heterotrophic bacteria growth, and that their use does not
cause corrosion that will elevate lead and copper levels at
the tap.
The Agency requests in PC
4 that the Board add an additional
subsection
(f) (8) that allows it a right of entry for
0~
L~2-O
107
40
inspection of point of entry devices.
The Agency requests
that we confer this right to enter “during normal working
hours”.
There are problems with this request.
First is
that the Board
is a little uncertain of our ability to
confer a blanket right of entry without some express
statutory authority to do so.
The Act so authorizes the
Board in the areas of air and water pollution control
(see
Sections 10(f)
&
13(a) (8)), but not as to public water
supplies
(see Section 17(a)).
Rather, the Agency’s right to
inspect public water supplies flows from the Act itself.
Section 4(c)
of the Act authorizes the Agency to “conduct a
program of continuing surveillance and of regular or
periodic inspection of
.
.
.
public water supplies
.
.
..“
Section 4(d) (1) authorizes the Agency to “enter at all
reasonable times upon any private or public property for the
purpose of
.
.
.
i)nspecting
and investigating to ascertain
possible violations of the Act
.
.
. .“
The Board cannot,
therefore, add to the Agency’s authority already conferred
by the Act in this regard,
and such an effort is not
necessary.
However,
if by its comment the Agency desires to make it
clear on the face of the Illinois SDWA regulations,
it is
possible for us to refer to the Agency’s authority to
conduct inspections.
We have done so,
as discussed above,
in a new Section 611.107.
We feel that addressing the issue
in this way fully satisfies the Agency’s request.
The Board did not include the essence of 40 CFR 142.63 and
142.64
in Section 611.130 because we believed that the present
language in Sections 611.112 and 611.113 adequately addresses
their restrictions.
At Sections 611.111(g),
611.112(h), and
611.113(f) we added a statement that the provisions of Section
611.130 apply to relief granted under those Sections.
Use of Bottled Water and Point-of—entry Devices—Sections 611.280
&
611. 290
The Board added the restriction on the use of point-of-entry
devices as a condition to relief,
added June 7,
1991 at 56 Fed.
Req.
26564 as 40 CFR 142.62(h) (7), to the Section 611.280
provision regarding these devices.
Section 611.280 derives from
40 CFR 141.100.
USEPA did not amend this provision with the lead
and copper rules.
However, the Board believes the restriction
against increased lead and copper levels at the tap through the
use of these devices is desirable and well within USEPA’s intent
in imposing the restriction on the states’ granting variance and
exemption relief.
The text of 40 CFR 141.100(b) through
(e)
parallels that of 40 CFR 142.62(h) (1) through
(h) (6).
We believe
that USEPA did not similarly add the language of 40 CFR
142.62(h) (7) as 40 CFR 141.100(f) through oversight.
We
therefore added
it.
U
41
We further note that Section 611.280(c) (3)
limits use of
point—of—entry devices to use pursuant to a SEP.
We amended the
language of this subsection to read according to what has evolved
to become our present standard language in this regard:.
Use of point—of—entry devices must be approved by
3pccial cxccption pcrmita SEP granted by the Aqency
pursuant to Section 611.110.
The Agency made the same request as to adding a new
subsection
(g) to confer on it the authority to conduct
inspections of point-of—entry devices,
as it made for Section
611.130(f).
For the reasons discussed above, we decline to add
the requested new subsection specific to point—of—entry devices.
Rather, we added a new Section 611.107, also discussed above,
that sets forth the statutory language that confers on the Agency
the authority to conduct the desired inspections.
Section 611.290 derives from 40 CFR 141.101.
USEPA did not
amend this provision in the current period.
40 CFR 141.101
(and
Section 611.290) includes a prohibition against the use of point-
of—use devices or bottled water as a means of compliance with an
MCL.
It allows the temporary use of these devices or water to
avoid an unreasonable risk to health.
The Board has found minor
problems with this provision that we now tried to remedy.
Initially, the Board notes that the federal
(and Illinois)
section heading does not optimally describe the contents of the
section.
We amended the heading to read “Use of Point—of—Use
Devices or Bottled Water”.
We feel this is superior because
bottled water is not a “device” in the mechanical sense by which
this phrase is commonly understood.
Second, we note that the use of point—of—entry devices,
under Section 611.280, requires a SEP.
We believe
it desirable
that a supplier obtain Agency approval before using any exception
from the general rule.
The general rule prohibits the use of
bottled water or point-of-use devices to comply with a MCL.
The
exception is the permissive use to avoid an unreasonable risk to
health.
We amended this Section by adding language to subsection
(b)
requiring prior Agency approval by the SEP mechanism.
The
Agency SEP approval process works efficiently enough that we do
not believe this restriction significantly impedes the use of
this water or these devices where necessary to avoid the
unreasonable risk to health.
Finally, we note that 40 CFR 142.62(g)
imposes a number of
restrictions on the state’s discretion to allow an exemption
(adjusted standard)
or variance that allows the use of bottled
water or point-of—use devices.
If this federal provision does
not apply to Section 611.290 decisions to allow the use, the
Board believes that it is at least desirable that it apply to
If..
-
0 k~-U
09
42
Agency determinations in the same way it would apply to Board
determinations.
Therefore, we added new subsection
(c)
that
renders the substantive limitations of Section 611.130(e)
applicable to Agency determinations to allow the use. of bottled
water or point-of—use devices.
Since Section 611.130(e)
contemplates Board review, we specifically referenced that the
compliance plan is submitted for Agency review, rather than for
Board review.
Alternative Treatment Techniques--Section 611.297
One significant segment of the lead and copper rules
is
corrosion control treatment.
The Board added Subpart D in P.91-3
to accommodate NPDWRs keyed to a treatment technique, rather than
a MCL.
At that time,
the only such requirements were the
treatment polymer application restrictions of 40 CFR 141,
Subpart
K
(sections 141.110 and 141.111),
for unreacted epichiorohydrin
and acrylamide monomers.
Although USEPA did not add any
reference to the corrosion control treatment techniques segments
of the lead and copper rules to this subpart.
The Board did so
in the interest of helping the regulated community more readily
recognize and locate those requirements.
Treatment of water to
control the lead and copper content of water appears very like
a
treatment technique such as polymer application to control
exposure to unreacted monomers.
Further, we do not wish to
disrupt the cohesive structure of the lead and copper rules at
Subpart G by relocating the corrosion control provisions to
Subpart D.
MCLs——Sections 611.300,
611.301, and 611.311
Section 611.300 derives from 40 CFR 141.11, amended by USEPA
at 56 Fed.
Reg. 26548
(June
7,
1991)
and 56 Fed. Req.
30274
(July
1,
1991).
The Board dealt in part with both sets of federal
amendments by adding statements as to the future expiration of
the MCLs for lead and barium.
We now deleted that language along
with the MCLs for those two contaminants.
In amending Section 611.300 in response to the lead and
copper rules, the Board requested comments as to whether we
should delete the “additional state requirement” for copper in
light of the new lead and copper rules.
In requesting comments,
we stated that this MCL is potentially not consistent with the
federal requirements, and the federal rules may also render the
copper MCL superfluous.
The federal rules require determination
of the 90th percentile copper level to determine compliance.
The
state-only MCL for copper applies to any single sample of water.
In requesting comments, the Board stated that it is possible that
the state-only copper MCL would render the state program
inconsistent with the federal scheme because the monitoring
frameworks are so different, and the methods for determining
compliance are so different.
O1L~2-01
10
43
The Agency, by PC
1,
stated that retention of the state-only
copper MCL would render the Illinois regulations less stringent
than the federal SDWA rules.
The Agency cited the inconsistency
with the federal scheme for copper.
It further noted—-that copper
contamination generally results from corrosion of household
plumbing.
Although we did not propose the deletion of the copper
MCL in the proposal for public comment, we noted that the
Agency’s public comment on this issue and state that, unless
additional public comments convince us otherwise, we are inclined
to ultimately follow the Agency’s suggestion.
Instead, we
included additional proposed language in case the Board
ultimately determined to leave the copper MCL intact.
That
language was an added Board Note to this Section that would
explain the existence of the federal lead and copper action
levels and the reason we would have retained the state—only MCL
for copper.
By PC 4, the Agency states that the federal scheme for
regulating the copper content of drinking water is more stringent
than the state-only MCL for copper.
The Agency recommends that
the Board delete this MCL.
In view of the above observations and
the Agency’s comments, we delete the MCL.
Further, the Agency’s
comments in this document state that the preamble language in
subsection
(a) that relates to nitrate is obsolete and only
causes confusion in the regulated community.
We agree that the
USEPA MCL for nitrate at 40 CFR 141.11(b) expired,
and although
USEPA has not yet deleted the parallel subsection
(a)
language
relating to nitrite, we now delete that language.3
PC
4 also highlights the fact that by oversight, the Board
left the MCL for barium intact in the regulatory text.
Since
this federal NCL expired on January
1,
1993, when the revised MCL
of section 141.62(b) became effective, we should have proposed
deleting it as we discussed in the proposed opinion.
We correct
this oversight and delete it now.
Finally, the Agency,
in PC
4, urges the Board to delete the
duplicative MCL for fluoride from subsection
(b).
Since the
Phase II amendments in docket R91—3,
there has been this dual
listing of the MCL for fluoride.
We agree with the Agency that
this can cause confusion.
Since we conclude that deleting the
listing at subsection
(b)
in favor of the listing at Section
611.301(b)
will not make the Illinois regulations less stringent
than or inconsistent with the federal rules, we delete the
~
In companion docket P.93—1,
for the next update period, we
discuss the’ problems posed by subsection
(d)
due to the deletion
of nitrate from this Section.
We propose substituting the
federal language for the present incorporation of 40 CFR
141.11(d) by reference.
0lL~.2-01ii
44
fluoride MCL at this time.
We follow the Agency’s request
further by adding language to the Board Note that explains the
dual federal
listing of the fluoride MCL.
However, as the
Agency’s comments also attach to the listing of the secondary MCL
of subsection
(c), we do not follow the requests fully at this
time.
We instead propose substituting “dummy” language for the
secondary MCL language in companion docket P.93—i,
for the next
update period.
Section 611.301 derives from 40 CFR 141.62,
amended by USEPA
at 56 Fed. Req. 30280
(July
1,
1991).
The Board dealt in part
with these amendments in P.91-3.
We now added the new MCL for
barium and revise the MCL for fluoride to read 4.0 mg/i (adding
the additional significant digit.
We further amended the entry
for asbestos so that we now use the standard abbreviation
“NFL”
in place of “million fibers/L (longer that 10 micrometers)”,
which is subsumed by the definition of MFL in Section 611.101.
Section 611.311 derives from 40 CFR 141.61,
added by USEPA
at 56 Fed. Reg.
30280
(July
1,
1991).
USEPA added MCLs for
aldicarb, aldicarb sulfoxide,
aldicarb sulfone, and
pentachlorophenoi.
On May 27,
1992,
at 56 Fed. Req.
22178,
USEPA
indefinitely stayed the effectiveness of the aldicarb, aldicarb
sulfoxide, and aldicarb sulfone MCL5.
USEPA made it clear in
granting the stay that the monitoring requirements for these
three SOC5 would promptly go into effect on January
1,
1993.
We
adopted all four MCLs.
We adopted the BAT listings for all four
contaminants in P.91—3, however,
it was necessary to move the
listing for pentachlorophenol to its proper alphabetical
position.
We added language to the Board Note to subsection
(c)
that notes an administrative stay until further action by the
Board.
We referenced the parallel federal provision and the May
37,
1992 stay.
This is similar to the approach taken by the
Board in our August 26,
1991 order in RCRA docket P.91-1, when
confronted with a similar federal stay.
(See 125 PCB 117,
128
&
224—26.)
The Agency comments in PC 4 that the Board should correct
the CAS number for aldicarb sulfone, that we should correct the
proposed NCL for this SOC from 0.004 mg/i to 0.002 mg/i, and that
we should correct the proposed NCL for aldicarb sulfoxide from
0.003 mg/i to 0.004 mg/i.
The Agency encloses a typed informal
note from USEPA on a page of the
Federal
Register for July 1,
1991 as support of its request.
This note states the error and
expresses that USEPA intends a future correction.
Further,
at an
informal April
16,
1993 meeting of the Regulatory Workgroup,
a
representative of USEPA Region V stated that this is correct.
Since these contaminants are the subject of
a federal stay,
and
since the
Federal
Register preamble discussion of July
1,
1991,
at 56 Fed. Req. 30270 agrees with the Agency’s assertions as to
the MCLs,
and the CAS number for aldicarb sulfone was an error
picked up from the 1992
Code of Federal Regulations
that did not
01L~2-0I12
45
appear in the
Federal Register
at 56 Fed. Req.
30280,
we made the
requested corrections.
The Agency further urges,
in commenting in PC 4 about the
explanatory reference in the Board Note to Section 611.311(c),
that the Board should delete the state-only, old MCLs of Section
611.310 for 2,4-D,
heptachlor,
and heptachlor epoxide.
The
Agency states that these were originally adopted based on 1978
federal data, and the recent establishment of the new federal
MCLs in the Phase II rules is based on more recent health effects
data.
Despite any desire on the part of the Board to follow the
Agency’s request, we cannot do so except under limited
circumstances.
These are not contaminants for which the General
Assembly has prohibited a more stringent state standard
(as it
did for barium, radium,
and radionuclides at Section 17.6 of the
Act).
This means,
according to Section 7.2(a)(6)
of the Act,
that the Board can use its identical-in-substance authority to
delete these NCL5 only if they are less stringent than or
inconsistent with the corresponding federal regulations.
Otherwise, the only way we can delete those MCLs,
which we
adopted in a Section 27 general rulemaking,
is under the
authority of Section 27.
Such a proceeding follows the full
Administrative Procedure Act and Environmental Protection Act
procedures of at least two public hearings in different areas of
the state,
First Notice publication, Second Notice review by the
Joint Committee on Administrative Rules,
and final adoption
filing and publication.
The Agency nowhere suggests that the existence of the state—
only MCLs for 2,4-D, heptachlor,
and heptachlor epoxide cause
problems with the federally-driven program.
They do not suggest
that these more stringent MCLs make the state program less
stringent than the federal program.
Neither do they suggest that
they render the state program inconsistent with the federal
program.
Rather, the Agency states that Illinois had no data
upon which to base these MCLs,
so we relied on old federal data.
In light of more recent data,
USEPA has changed its assessment of
the risks,
so the federal MCL5 that derived are higher than the
state standards.
Therefore, the Agency concludes,
the Board
should delete the state-only MCLs.
Unless the Agency can come in
with some reasoning that can support an identical—in—substance
action to delete these MCLs,
it will be necessary to commence a
Section 27 general rulemaking to accomplish this.
Lead and Copper:
General Provisions——Section 611.350
Section 611.350 derives from 40 CFR 141.80, added by USEPA
at 56 Fed. Reg.
26549, onJune
7, .1991, corrected at 56 Fed. Req.
32113,
on July 15,
1991,
and amended at 57 Fed. Req.
28788,
on
June 29,
1992.
It sets forth the general lead and copper
requirements.
The preceding general discussion considers the
substantive aspects of this Section,
so this discussion will
fl
!~
‘)
—
Ui
•i(_
46
focus on the Board’s deviations from the federal format and
language.
Subsections
(a) and
(c) through
(k)
correspond
linearly with the federal subsections.
The Board changed
subsection
(b)
as described below.
To accommodate the changed structure and keep with our usual
practice of pairing scope and applicability statements, the Board
rendered federal subsection
(b)
(“Scope”)
as subsection
(a) (2).
Since the federal effective date of November 9,
1992
in this
provision is now past, the Board omitted federal paragraph
(a) (2).
The Illinois lead and copper rules will become effective
upon filing with the Secretary of State.
In subsection
(a) we
omitted the “Unless otherwise indicated”
in the applicability
statement.
The Subpart applies generally to CWSs and NTNCWSs,
as
stated in the federal and the Board’s proposed texts.
If any
other provision applies to a smaller universe, as do Sections
6ll.355(c)(2) through
(c)(5),
611.356(a)(4)(A)
through
(a)(4)(C),
and 611.360(a) (2) and
(a) (3), statements within those provisions
will limit their applicability.
This renders the federal
limiting phrase at this location superfluous,
so we omitted it.
For the reasons discussed earlier, we rendered the federal
definitions as subsection
(b), and we added other definitions for
clarity.
We do not repeat the discussion of the definitions
here.
Subsection
(c) was revised by changing the federal wording.
In subsections
(a) (1)
and
(a) (2), we dropped the federal cross—
referential language for computation of the 90th percentile level
because the added definition includes it.
Subsection
(c) (3) was
phrased in the active voice,
imposing the duty on the supplier to
calculate this level.
Subsection
(c) (3) (B)
includes added
language relative to determining the ordinal number of the 90th
percentile sample because that is the object of this arithmetic
computation.
The changes from the federal text for subsections
(e)
through
(g)
are very minor.
In light of the Board’s choice in
viewing a “system” as a thing and a “supplier” as a responsible
person, we rendered the federal “system exceeding” as “supplier
whose system exceeds”.
An Agency comment in PC
4
suggests
without supporting statements that the Board should use “and/or”
in place of “and”
in subsection
(f).
The Agency suggests only
that this would “alleviate confusion”.
We decline to do so for
two reasons.
First, the
Illinois Administrative Code
codifica-
tion requirements do not allow the use of “and/or”.
Instead, the
Board must use “or” in its place.
Second, examination of the
federal’ text of 40 CFR 141.80(f)
indicates that “or” is not
appropriate in context.
USEPA has provided that the replacement
of lead service lines
is the activity that occurs for a supplier
who has fully implemented corrosion control treatment and source
water treatment, yet whose system still exceeds the lead action
0L~.2-011i~
47
level.
Thus,
“and”
is appropriate,
as drafted in the proposed
text,
not “or”.
It is possible that there are systems who cannot
implement source water treatment,
in which case “and/or” might
have been appropriate.
However,
since we cannot use-this
construction, we would hope that no one would read the rule so
unreasonably as to construe it as forestalling the further
corrective action of lead service line replacement.
In subsection
(k), the Board rendered the federal language
relating to “requirements established by the State” to read
“conditions imposed by the Agency by special exception permit”.
This focuses on the Illinois chosen vehicle for imposing any
requirements on a site—specific basis that the Board can only
provide for broadly on a state-wide basis by establishing a
regulatory basis for site-specific determinations.
Lead and Copper:
Corrosion Control Treatment Provisions——
Sections 611.351
& 611.352
Sections 611.351 and 611.252 derive from 40 CFR 141.81 and
141.82,
added by USEPA at 56 Fed. Req. 26549 and 26550,
on June
7,
1991.
Together they set forth the corrosion control treatment
requirements.
The preceding general discussion considers the
substantive aspects of these Sections,
so this discussion will
focus on the Board’s deviations from the federal format and
language.
The Board’s chosen structure remains largely parallel with
that of the federal rules.
The only exception to this is that we
subdivided subsection
(c)
into five subsections,
(c) (1),
(c)(1)(A),
(c)(1)(B),
(c)(2), and (c)(3).
To the parentheticals
at subsections
(a) (1)
and
(a) (2), describing large, medium—sized,
and small system suppliers, the Board added the same “regularly
serving” language added to the definition of these entities.
We
added “one of” to the end of subsection
(a) (2)
for clarity;
provided for “equivalent activities” determinations at subsection
(b) (2) by providing (in the active voice) that the Agency “shall
deem”
if it “determines that”, as is our common construction;
punctuation using commas was shifted in subsection
(b) (3);
segments of subsection
(C)
and
(e)
were reworded for clarity; and
references to SEPs were added to subsections
(b) (2),
(c),
(d) (3),
(e) (2)
,
(e) (4)
,
and
(e) (7)
The structure of the federal rules required the Board to
break with our standard practice and retain one past effective
date at subsection
(d)(1).
40 CFR 141.81(d) (1) requires that
suppliers must have completed the initial monitoring by January
1,
1993.
Because the balance of subsection
(d) carries a time—
line forward from this point,
we felt that deleting this date
would substantively alter the entire scheme embodied in the
entire subsection.
We included a Board Note explaining this
inclusion.
0k2-0l IS
48
A noteworthy deviation from the federal language appears at
Section 611.352(h).
The federal language would have almost
required the Agency to formally consider modifying its treatment
decision if a third party submitted a written request.~.alongwith
supporting information.
Because this would raise issues of Board
review of Agency permit decisions and other related issues under
Sections 39 and 40 of the Act, the Board changed the structure.
As drafted,
the Agency may modify its decision on its own
initiative or in response to a request by the supplier.
Under
these circumstances, Sections 39 and 40 would apply.
However,
at
added subsection
(h) (4), we provide that “any interested person
may submit information to the Agency bearing on whether the
Agency should
.
.
.
modify its determination
.
.
..“
We
expressly provided that an Agency determination not to act on
this submitted information is not an Agency determination for the
purposes of Sections 39 and 40.
In adding
(i), we stated that
USEPA “has reserved the prerogative” because the use of “may”
appears as though the Board was granting an authorization to
USEPA.
An alternative was to delete this paragraph altogether,
however, we believe its inclusion warns the regulated community
of the fact that USEPA could modify or negate the Agency
determination.
We requested comment on these issues, and the Agency, by PC
4, stated that it agrees with the Board’s approach.
The Agency
states that “any interested person’
could range from rival
corrosion control chemical manufacturers
.
.
.
to consumers who
do not want any chemical addition, and would prove unduly
burdensome to the Agency and the Board.”
The Agency further
stated that it agrees that the Board should warn the regulated
community by including the language we added relative to USEPA
review.
Other Agency comments in PC
4 request minor modifications of
the language at various points.
With regard to Section 611.351,
the Agency requests the addition of “with monitoring” added
towards the end of subsection
(b) (1)
for clarity.
We added it.
The Agency suggests correcting the reference to “Section
611.359 (a) (1) (ii)” at the end of subsection
(b) (3)
to read as
subsection
(a) (1) (B) (i)
of that Section.
This was an oversight
in rendering the federal language that the Board has gladly
corrected.
The Agency requests that we delete the reference to
“six—month”
in relation to the monitoring cited in subsection
(c) (2).
We corrected this inaccuracy in rendering the federal
intent of ~flymonitoring period.
We further changed “its”
to
“this” at the end of subsection
(c) (3)
because we agree with the
Agency that this is clearer.
Finally, with regard to the Section
611.352(g) (3)
reference to Section 611.357(d), we agree with the
Agency that’ the more specific cross—reference to subsection
(d) (3)
is clearer, and we changed
it.
011.2-0I 16
49
Lead
and
Copper:
Source Water Treatment Provisions——Section
611.
353
Section 611.353 derives from 40 CFR 141.83, added by USEPA
at
56 Fed. Reg.
26552,
on June
7,
1991.
It sets forth the source
water treatment requirements.
The preceding general discussion
considers the substantive aspects of this Section, so this
discussion will focus on the Board’s deviations from the federal
format and language.
We found it necessary in rendering this
provision to subdivide federal paragraphs
(b) (2)
(b)
(4),
and
(b) (6)
into subsections to enhance their clarity.
As for Section
611.352(1),
in adding federal paragraph
(b) (7), we stated that
USEPA “has reserved the prerogative” because the use of “may”
appears as though the Board is granting an authorization to
USEPA.
An alternative was to delete this paragraph altogether,
however, we believed its inclusion warns the regulated community
of the fact that USEPA could modify or negate the Agency
determination.
We requested comment on this issue,
and the Agency, by PC
4,
stated that it agrees with the Board’s approach.
The Agency
states that it agrees that the Board should warn the regulated
community by including the language we added relative to USEPA
review.
Also,
in response to PC 4,
the Board added a definition
to Section 611.350(a)
of “maximum permissible concentration” or
“MPC”, so we substituted
“MPC” where phrases similar to “maximum
permissible concentration” formerly appeared in the text,
as
discussed above.
We also added references to “lead and copper”
where necessary for clarity.
However, we did not make this
substitution in the heading to subsection
(b) (4) because we felt
that adding the abbreviation parenthetically added clarity
without reference to the Section 611.350(a).
The Agency also included a minor change suggestion in PC
4.
Initially,
due to our following the above suggestion to and our
use of “MPC for lead and copper”, we have already followed the
suggestion that we alter subsection
(a) (5)
to add a reference to
“lead and copper” for clarity.
A more substantive change suggested in PC
4
relates to
certain language in subsection
(b) (6) derived from a federal
provision for third—person requests for review of Agency
determinations.
We discuss the issues related to these
provisions above with regard to Section 611.352(h)(1).
We agree
with the Agency that we should be consistent
in our approach.
We
add language,
as subsection
(b) (6) (E), that is virtually
identical to that of Section 611.352(h)(4).
It clarifies that
the third-person does not have Sections 39 and 40 rights with
regard to any exercise of Agency discretion in this regard.
0R2-01
17
50
Lead and Copper:
Lead
Service
Line
Replacement
Provisions——
Section 611.354
‘Section 611.354 derives from 40
CFR
141.84,
added
by
USEPA
at 56 Fed. Req.
26552, on June
7,
1991,
and amended at 57
Fed.
Reg. 28788,
on June 29,
1992.
This Section sets forth the lead
service line replacement requirements.
The preceding general
discussion considers the substantive aspects of this Section,
so
this discussion will focus on the Board’s deviations from the
federal format and language.
The Board found it necessary to
subdivide most of the federal subsections and to add subsection
headers to enhance readability.
We also reworded the first
sentence of subsection
(b)
(subsection
(b) (1)),
a few sentences
of subsection
(d), the end of subsection
(e)
(subsection
(e)(2)),
and segments of subsections
(f)
and
(q)
(subsections
(f)(1),
(g) (1),
and
(g) (2)) to enhance the clarity of these provisions.
Otherwise, the Board adhered to the structure and language while
retaining the substance of the federal provision.
By PC 4, the Agency suggests alternative language for
subsection
(a) (1).
The major elements that the Agency suggests
changing include a modified opening language that focuses on the
“analysis results of first draw tap samples collected
thereafter”, adding the word “recommence”, and making the
reference to the replacement requirement more specific by using
“pursuant to subsection
(b)”.
The Agency states in support that
it is the results of analyses that actually trigger the
requirement.
We have revised the language of this subsection in
response to this suggestion,
but we use what we believe is even
clearer language.
Thus,
this subsection now reads as follows:
If the results from tap samples taken pursuant to
Section 611.356(d) (2) exceed the lead action level
after the supplier has installed corrosion control or
source water treatment (whichever sampling occurs
later), the supplier shall recommence replacing lead
service lines in accordance with the requirements of
subsection
(b).
We retained the reference to Section 611.356(d) (2) because that
is the provision specific to monitoring after the installation of
corrosion control treatment and source water treatment.
The Agency also recommends
in PC 4 that the Board should use
the defined term,
“first draw tap water sample”,
in place of the
original federal phrasing,
“first flush tap water sample”, for
clarity.
We agree that this is preferable and it avoids any
ambiguity that might arise by the proposed inconsistent usage.
We note that the phrase “first flush tap water sample” appears
also in the required public notice set forth in Section 611.—
Appendix
E(4)
(B) (1).
We
did
not
make
the
same
substitution
at
that
location
because
that
Section
sets
forth
the
required
01L~.2-O118
51
content
of
a
required
public
notice,
so
the
same
standard
of
precision
in
language
does
not
apply.
The
notice
itself
is
the
requirement,
it
does
not
set
forth
a
requirement.
Lead and Copper:
Public Education and Supplemental Monitoring
Provisions——Sections 611.355
& 611.Appendix E
Sections 611.355 and 611.Appendix E derive from 40 CFR
141.85,
added by USEPA at
56 Fed. Reg.
26553,
on June 7,
1991,
and amended at
57 Fed. Reg.
28788,
on June 29,
1992.
These
Sections set forth the public education requirements for the lead
and copper rules.
The preceding general discussion considers the
substantive aspects of this Section,
so this discussion will
focus on the Board’s deviations from the federal format and
language.
The only significant shift
in structure to this
Section was to place the entirety of the required notice of
federal subsection
(a)
into a new Appendix E.
The Board could
not retain the structure of the required notice and retain it as
subsection
(a).
Further, this notice is lengthy.
In subsection
(b) we used “broadcast” in place of “broadcasting” because this
is more grammatically correct.
We added mandatory language at
the end of subsection
(C)
(2) that did not appear in the federal
text, rendered “fails to meet”
as “exceeds” in subsection
(c) (2),
added “required by” to subsections
(c) (2) (A)
and
(c) (2) (B), added
“the” to subsection
(c) (2) (C) (ii),
added the abbreviation “(WIC)”
to subsection
(c) (2) (C) (iii), and rendered “if” as “after” and
“recommence” as “begin anew” in subsection
(c) (6).
The Board
restructured subsection
(c) (3), subdividing this subsection,
to
clarify the required actions and associated frequencies.
The Agency recommends in PC
4
that
the
Board
allow
the
dissemination of the required public notices by a mailing.
The
Agency wants the Board to add the language “or by a separate
mailing” to subsection
(c) (2) (A).
We agree that Illinois should
grant suppliers that must disseminate these notices the freedom
to do so by a separate mailing.
In some instances, we can
foresee that this could mean a more rapid and more complete
dissemination of the information.
However, we added slightly
modified language for greater clarity:
“or disseminate to each
customer by separately mailing a notice”.
PC 4 also suggests the use of “and/or”
in subsections
(c) (2) (C) (iii)
and
(c) (2) (C) (iv).
The Agency states that this
provision is arguably less stringent than the corresponding
federal requirement.
As explained above, the codification scheme
does not allow the use of this term.
Examining the text, though,
we agree with the Agency that our proposed use of “or” in place
of the federal “and/or” was inappropriate.
We believe that USEPA
intended the notices to go to each of the WIC and Head Start
programs and to each of the hospitals and clinics in the affected
area.
Therefore, we substituted “and” to make this clear that
each in the area is to receive the notices.
We rely on common
OIL!.2-O1 19
52
sense
to
prevail
when
any
of
these
entities
do
not
exist,
thereby
precluding technical compliance with the use of “and”.
The Board highlighted a potential error in federal
subsection
(c) (4)
in the proposal for public comment.
Federal
paragraph
(c) (4) references “the public education materials
contained
in
paragraphs
(a)
(1),
(2),
and
(4)
of
this
section”
as
the public education required of NTNCWSs.
The cited paragraphs
are the introductory, health
effects,
and
exposure reduction
portions of the required lead notice
(codified as Appendix E).
We stated that we believed it possible that USEPA intended to
cite paragraphs
(C)
(2) (i),
(c) (2) (ii),
and
(c) (2) (iv), requiring
notice to schools, the health department, and hospitals.
We left the references as drafted by USEPA,
so that it
required an NTNCWS to post and distribute only a part of the
public notice, but we requested comment on this issue.
The
Agency responded in PC 4 that it agrees with the Board’s
treatment of the federal language.
The Agency believed that
USEPA intended the omission because most NTNCWSs do not include
schools, health departments and hospitals, unless the NTNCWS
itself
is one of these.
The Agency recommends that if USEPA
erred by the omissions,
it should undertake corrective rulemaking
in this regard.
Lead and Copper:
Tap Water Monitoring Provisions——Sections
611.356,
611.Table D, 611.Table E
& 61l.Table
Z
Sections 611.356,
611.Table D, and 61l.Table E derives from
40 CFR 141.86,
added by USEPA at 56 Fed. Req.
26555,
on June 7,
1991,
corrected at 56 Fed. Reg.
32113, on July 15,
1991,
and
amended at 57 Fed. Req.
28788,
on June 29,
1992.
They set forth
the tap water monitoring requirements for lead and copper.
The
preceding general discussion considers the substantive aspects of
this Section,
so this discussion will focus on the Board’s
deviations from the federal format and language.
This Section
proved the most problematic in drafting.
As for Section 611.355,
the Board found it necessary to subdivide the subsections and to
add subsection headings for clarity.
The major problems,
however, involved the language and structure of federal
paragraphs
(a) (3),
(a) (4), and
(d) (4).
The first sentence of federal paragraph
(a) (1) was divided
into two subsections for clarity and ease of reading.
We
rendered the second and third sentences of this subsection in the
active voice,
and added “or capable of removing” to the last
sentence.
The Board can envision the use of some devices, such
as activated carbon, that are designed to remove organic
contaminants but also are capable of removing lead or copper.
The Board left the citation to 40 CFR 141.42(d)
intact in
subsections
(a) (2) (A) and
(a) (2) (B).
This is a federal
O1i~2-O120
53
requirement
for
special
monitoring
for
corrosivity
that
the
Board
did
not
adopt
in
P.88-26
because
its
deadlines
were
past.
There
is no parallel state provision to cite,
so we used the
federal
cite.
Significant in the Board’s deviations from the federal
structure in rendering subsection
(a) (3) was adding clarity to
defining the sampling tier structure.
We referred the reader to
the discussion on page 16 for how the Board defined and applied
the tier structure.
This led to extensive rewording and
restructuring of subsections
(a) (3)
and
(a) (4), while attempting
to remain identical in substance to the federal rules and retain
a parallel structure.
The federal language mixes the definitions
and sample pool selection provisions throughout paragraphs
(a) (3)
through
(a) (9).
In the restructured provisions, the Board
included all definitions at subsection
(a) (3) and the sampling
pool selection provisions at
(a) (4).
Federal paragraphs
(a) (4)
through
(a) (9) more or less linearly became subsections
(a) (4) (A)
through
(a) (4) (D).
Subsection
(a) (4) (A)
sets forth the selection
criteria for CWS suppliers,
subsection
(a) (4) (B)
sets forth the
criteria for NTNCWS suppliers, subsection
(a) (4) (C)
is the
provision that requires suppliers to justify the use of anything
other than tier
1 sampling sites, and subsection
(a) (4) (D)
is the
special requirement for using sampling sites with lead service
lines.
The revisions to subsection
(b) and
(c) were fairly minor.
In subsection
(b) (2) (E) the active voice is used.
We added
“calculated as being” to subsection
(b) (3) (B) (i) and “single
family structure”
(the term actually defined by USEPA)
in place
of “single family residence” in subsection
(b) (3) (B) (iii).
To
subsection
(b)(4)(A) the Board added “follow-up”, since it was
follow-up sampling that USEPA intended.
We reworded and
restructured subsection
(C)
for clarity and ease of reading by
incorporating the table of 40 CFR 141.86(c)
into new Section
611.Table D, rearranging the prepositional phrases, and adding
“six—month” and “reduced” to differentiate the monitoring periods
intended.
This made it necessary to renumber former Table D into
Table Z.
Similarly,
most of the revisions to subsections
(d) and
(e)
were minor, with the exception of the rewording and restructuring
of subsection
(b) (4).
We incorporated the table of 40 CFR
141.86(d)
into new Section 611.Table E.
We added subsection
headings.
We added “consecutive”,
“action level”, and “each of”
to subsection
(d) (1) (B),
(d) (1) (E), and
(e) where necessary for
clarity.
We subdivided subsections
(d) (4) (B)
and
(d) (4) (C) to
accommodate the Board’s standard,
active—voice SEP provision
format.
We added references to subsection
(d) (4) (B) (i)
throughout the other subsections of
(d) (4) (B)
for clarity because
of the proximity to subsection
(d) (4) (C),
in which a different
determination is made.
01L.~2-0121
54
The
Board
specifically
requested
public
comment
on
its
approach to this Section, and the Agency responded by PC
4 that
it agrees with the Board’s approach.
The Agency especially
commended the Board’s attention to clarity and ease of reading.
However,
in another comment in PC
4, the Agency strongly
recommends that the Board use the federal “and/or” in place of
“or” at the end of subsections
(a) (3) (A) (i),
(a) (3) (B) (i), and
(a) (3) (D) (i) to avoid confusion of the regulated community.
The
Agency also seeks clarification that subsection
(a) (4) (D) does
not preclude the exclusive use of sites served by lead service
lines.
In support of its position, the Agency states that it
sought clarification of this provision from USEPA.
It asked
USEPA in a letter attached to PC 4, whether a supplier could
compose its tier 1 sampling sites exclusively from customers
served by lead service lines.
According to the Agency, USEPA
responded orally that it intended the use of all lead service
lines as a “worst case”, and all of the sites could be served by
lead service lines.
The Board believes that our proposed use of
“or” allows this possibility.
(The use of “and” would have
required it.)
The only instance in which the Board could foresee that the
proposed language might cause a problem is if USEPA intended that
the preferred sampling pool consist exclusively of customers
served by lead service lines.
However, that is not what the
federal use of “and/or” implies.
“And/or” literally allows that
the existence of either or both conditions satisfies the
requirement.
Under the Illinois codification scheme, the use of
“or” accomplishes the same result; the Board is not allowed to
use “and/or”.4
To accomplish the federal possible intent that we
could infer from the Agency’s comments, the Board would have to
redraft the federal tier structure so that tier
1 sampling sites
consist of tier 1A ‘sites
(those having lead service lines)
and
tier lB sites
(those having only lead pipes or lead-soldered
copper pipes)
and tier IA sites are the first choice.
It would
be similar for tier
2 sites.
The chosen federal regulatory
language does not support such a structure,
and nothing in the
preamble discussion of June 7,
1991
(56 Fed. Req. 26517-18)
supports such an interpretation or preference.
We did not modify
our use of “or” for these reasons.
However,
since the Agency wants clarification on the face of
the regulations that the tier
1 or tier 2 sampling site pool
could consist of customers having lead service lines, the Board
has accommodated.
We have added Board Notes to each of subsec—
“
If the Board were to draft a statement that is fulfilled
only when one condition is satisfied, but not when both are
satisfied, we would use the “either
.
.
.
or
.
.
.“
construct.
01L~2-O
122
55
tions
(a)
(3)
(A)
(i)
(a)
(3)
(B) (i)
(a)
(3)
(D)
(i)
and
(a)
(4)
(D)
to
make
this
clear
to
the
regulated
community.
In
doing
so,
we
caution that we can only foresee a
narrow
interpretation
of
subsection (a)(4)(D) that allows the exclusive use of-customers
served by lead service lines:
when 50 percent of the sites used
also have lead pipes or lead—soldered copper pipes.
By another comment in PC
4,
the Agency seeks to have the
Board clarify that the existence of insufficient tier
1 and tier
2
(and tier
3)
sampling sites on the distribution system does not
exonerate the supplier from sampling.
The Agency generally cites
USEPA guidance documents for support of this request.
During a
meeting of the Regulatory Work Group,
the Agency noted the
instance of a sister state confronting USEPA on this issue by
asserting that it would not require sampling by such a supplier.
The Board agrees that this defies the clear intent of the federal
rules that sampling occur.
The federal tier structure merely
assures that the sampling reflect the worst—case sites.
We see
no evidence that USEPA intended no sampling if the worst case
does not exist for a supplier.
Therefore, we added subsections
(a) (4) (A) (iv)
and
(a) (4) (B) (ii) to require the supplier to use
those sites its has, then to randomly select representative
sampling sites from its distribution system to make up the
difference.
In its final comment on this section,
the Agency states that
subsection
(d) (4) (D) should require a supplier who is sampling
from a reduced number of sites to select its sites from the
highest tier in its sampling pool first.
The Board agrees.
The
object of the federal sampling tier structure is to require each
supplier to use those sites that are most likely to indicate a
problem.
If,
as a result of monitoring from those sites, the
supplier is allowed to “weed” the highest tiered sites from its
pool,
the remaining’ reduced monitoring sites no longer represent
the worst problem areas.
Therefore, the Board has added language
that requires the supplier to preferentially select the highest-
tiered sampling sites for its reduced monitoring.
We have
deviated from the Agency-suggested language for greater clarity.
Lead and Copper:
Water Quality Monitoring Provisions--Section
611.357,
611.Table
F
& 611.Table G
Sections 611.357,
611.Table F,
and 611.Table G derives from
40 CFR 141.87, added by USEPA at 56 Fed. Req.
26557,
on June 7,
1991,
and amended at 57 Fed. Reg.
28788, on June 29,
1992.
They
set forth the water quality monitoring provisions for corrosion
control.
The preceding general discussion considers the
substantive aspects of this Section,
so this discussion will
focus on the Board’s deviations from the federal format and
language.
The Board subdivided subsections
(a) (2) (B),
(b),
(c),
(d), and
(e)(2)
and added subsection headings for clarity.
Similar to Section 611.356, the Board used the active voice and
01
L~2-0
123
56
added
phrases
like
“six—month”,
“annual”,
“action
level”,
“original
.
.
.it seeks to confirm”, and “it
took”
to
various
passages for clarity.
The tables 40 CFR 141.87(a)(2),
(e), and
(f) were codified as new Sections 611.Table F
(40 CFR
141.87(a) (2)
and
(e)
together) and 6l1.Table G.
The information
in Table G is noted by USEPA as being for illustrative purposes
only;
it summarizes the narrative requirements rather than
independently imposing any requirements.
The Board could have
omitted this table altogether,
and we requested comments on
whether we should do so.
By PC
4, the Agency requested that the
Board retain the table to aid the regulated community in
interpreting the rules.
At 57 Fed.
Req.
28788, USEPA amended subsection
(e) (2) to
provide for triennial monitoring for suppliers that maintain the
range of water quality parameters for three consecutive annual
reduced monitoring periods.
However,
it did not add a reference
to paragraph
(e) (3) requiring a supplier sampling triennially to
sample to reflect seasonal variation,
as
it does for a supplier
sampling annually.
The Board added this requirement by
referencing triennial monitoring in subsection
(e) (3).
The Board
specifically requested public comment on its approach to Section
611.357, and the Agency stated in PC
4 that it agrees with the
approach take by the Board.
Lead and Copper:
Source Water Monitoring Provisions——Section
611. 358
Section 611.358 derives from 40 CFR 141.88, added by USEPA
at 56 Fed.
P.eg.
26559,
on June 7,
1991,
and amended at 57 Fed.
Req.
28788, on June 29,
1992.
This Section sets forth the source
water monitoring requirements for lead and copper.
The preceding
general discussion considers the substantive aspects of this
Section,
so this discussion will focus on the Board’s deviations
from the federal format and language.
As for the other Sections,
the Board engaged in some minor subdivision of subsections,
addition of subsection headings, minor rewording, and rewording
of various provisions to active voice for clarity.
In subsection
(a) (2) (A), we codified the two week limitation so that it appears
more clearly as a substantive provision.
We reworded subsections
(d) (1) (B)
and
(e) (2) to remove the parentheticals by expressly
naming mixed system suppliers.
The Board found it necessary to
add the phrase “of the appropriate duration provided by
subsection
(d) (1)” to define “monitoring period”
in subsection
(e) (3).
Subsection
(d) (1) provides that these periods are a
compliance period for a GWS and annually for a SWS or mixed
system supplier.
This clarifies the Board’s interpretation of
this rule:
that the rule does not intend a six—month monitoring
period.
We requested comment on this issue, and PC
4 states that the
Agency finds the Board’s language is accurate and it clarifies
0
~2-O
12Li~
57
the
federal
provision
by
defining
both
the monitoring period and
the time—frame as part of the requirement.
Also,
in response to
PC
4, the Board added a definition to Section 611.350(a)
of
“maximum permissible concentration” or “MPC”,
so we substituted
“MPC” where phrases similar to “maximum permissible concentra-
tion”
formerly
appeared in the text,
as discussed above.
The Agency makes additional comments on Section 611.358 in
PC 4.
First,
the Agency requests deletion of the period from the
heading of subsection
(a) (2).
We did so.
Second,
the Agency
suggests that the Board should substitute the appropriate
citations to Illinois rules for the federal citations included
in
the proposed language of Subsection
(a) (1).
We did so because
the federal citations were erroneously included in the first
place.
Third,
the Agency states that subsection
(a) (2) (A)
is
unclear and that its clarity could improve by deletion of the
words “be collected”.
This was language erroneously included in
changing from the federal use of passive voice.
We deleted the
words.
Finally, the Agency comments that we have retained the
federal interchangeable use of “detection limit”,
in subsection
(a) (2) (B) (i), and “MDL”,
in subsection
(a) (2) (B) (ii),
and that
our usage should remain consistent.
The Agency points out that
we used “MDL”
in Sections 611.359(a) (3).
We agree with the
Agency.
For VOCs and SOCs,
there
is an important distinction
between “detection limit”, which is defined by rule,
and “method
detection limit” or “MDL”,
which is determined by laboratory
analysis.
For example, an SOC or VOC result that is below the
“detection limit”
is reported as determined.
This is not true
for lead and copper.
USEPA made no distinction in usage in the
lead and copper program,
so the Board does not intend to imply
a
distinction by perpetuating a federal inconsistency.
We
substituted “MDL” at subsection
(a) (2) (B) (i).
Lead
and
Copper:
Analytical
Provisions—-Section 611.359
Section 611.359 derives from 40 CFR 141.89,
added by USEPA
at 56 Fed. Req.
26559, on June 7,
1991, amended at 57 Fed. Req.
28789,
on June 29,
1992, and amended at 57 Fed. Reg.
31847,
on
July 17,
1992.
This Section sets forth the analytical
requirements for the lead and copper program.
The preceding
general and analytical methods discussions considers the
substantive aspects of this Section, so this discussion will
focus on the Board’s deviations from the federal format and
language.
See pages
22 through 24 for the discussion of the
methods themselves.
The Board defined the method detection
limits for lead and copper in Section 611.350(a) and moved the
methods from a tabular format at subsection
(a)
into a text
format in subsection
(b).
(There is no federal subsection
(b)
for this section).
In adapting subsection
(a), which embodies
the federal laboratory and analytical requirements
(apart from
the methods), the Board only minimally revised the federal text.
We added “performed for the purposes of
.
.
.“
to subsection
0 1L~.2-O125
58
(a)
(1)
and
“under
this
Subpart”
to
subsection
(a)
(2)
and
subdivided subsections
(a) (3)
and
(a) (4) and added subsection
headings.
Finally,
the
Board
renders
federal
footnote
9
to
the
table
of
40
CFR
141.89(a)
in
the
text
of
the
rule
as
subsections
(b) (1) (D)
and
(b) (2) (F).
The actual text appears with only
minimal deviation at subsection
(b) (1) (D), under lead and
referencing both lead and copper,
and a cross reference appears
at subsection
(b) (1) (F).
We requested comment on our approach to
the analytical methods requirements, and the Agency states in PC
4 that “the Board’s language is clear and concise”, and that the
Agency prefers the Board’s chosen structure to the tabular format
used by USEPA.
Agency PC
4 recommends two changes to the proposed text of
Section 611.359.
First, the Agency recommends that the Board
include the title to the method of 40 CFR 141, Appendix B in the
reference in subsection
(a) (1) (B) (iii),
for added meaning to the
reader.
We have done so.
The Agency also suggests that we
reference the Illinois laboratory certification rules.
We
referenced the joint rules of the Agency and DPH at 35 Ill. Adm.
Code 183, hoping that this is what the AgenOy intended.
Second,
we corrected “an” to “and” in subsection
(a) (2) at the Agency’s
suggestion.
Lead and Copper:
Reporting Requirements--Section 611.360
Section 611.360 derives from 40 CFR 141.90, added by USEPA
at 56 Fed. Reg.
26561,
on June 7,
1991.
This Section sets forth
the reporting requirements for the lead and copper program.
The
Board managed to adopt the federal language with a number of
changes so minor that no individual change warrants much
discussion.
For example, most of the changes involve adding
clarifying phrases like “requirements of”, “pursuant to”, etc.
and changing “by” to “on or before”.
We added “annually” to
subsection
(e) (1) (C); “number
.
.
.
in its distribution system”
to subsection
(e) (2) (A); the subsection
(e) (2) (B) demonstration
language,
“that the supplier has replaced”, and “combined with
the total number of” to subsection
(e) (2) (C); “originally” to
subsection
(e) (3) (A); “actually” to subsection
(e) (3) (B); “over
the service lines” to subsection
(e) (4) (B); “calendar” to
subsection
(f) (1); and “continues to” to subsection
(f) (3)
for
clarity.
At subsection
(g), the Board used “sampling period” to
avoid confusion with “monitoring period” because the time periods
contemplated may range from a six—month monitoring period to a
nine—year compliance cycle.
The Board requested comment, and in
PC
4 the Agency stated that it supports the clarifications made.
PC
4 suggests a few minor modifications that the Agency
would like to see in Section 611.360.
First, the Board has added
the suggested “every nine years” language to the preamble of
subsection
(a) (1).
Second, we have corrected the flawed cross
references in subsection
(a) (2).
However, since we added Section
O1L~2-UI26
59
the
611.356(a)
(4)
(A) (iv)
“catch—all”
provision
at
the
suggestion
of
the
Agency
(see
above
discussion),
we
have
broadened
the
reporting requirement to include decisions made under the catch-
all.
This parallels the federal requirement for reporting on the
selection of other than tier
1 sites under all circumstances
other than when on the basis of 20 percent multiple-family
residences.
Third, we corrected the retained reference to the
federal rules in subsection
(b) (1)
so that it now refers to the
corresponding Illinois rule.
Fourth and sixth, we revised the
language of subsections
(c) (4)
and
(ci) (2), with very little
deviation from the revisions suggested by the Agency,
so that an
Agency permit letter can act as
a certification that the supplier
has completed installation of corrosion control treatment.
Fifth,
we added the Agency-suggested “or” to the end of
subsection
(d) (1).
Seventh, the Agency recommends the inclusion
of language in subsection
(e) (3) (C)
that clarifies that the
supplier is to provide the lead concentration for each service
line sampled pursuant to Section 611.356(b) (3)
and the location
of each service line.
We adopted the clarifying additions.
Finally,
the Agency recommended that we should add a Board
Note to subsection
(e) (4) that explains that
a supplier that does
not submit the required information within the three month time-
frame set forth must replace the entire lead service line.
We
agree that such a Note is helpful, and we have added one.
However, we may have gone further than the Agency anticipated
because we attempted to draw all of these related requirements
together to add support for the three month limitation.
In this
Board Note, we cited the presumption of control of Section
611.354 (e) (1), the requirement for an affirmative Agency
determination of Section 611.354(d) (2) (A), the one—year
replacement deadline of Section 611.354(b) (1) and
(b)(4), and the
90-day limit on Agency permit decisions of Section 39(a)
of the
Act.
We further added a Board Note at Section 611.354(e)
that
refers to Section 611.360(e) (4)
and the Board Note that follows.
Lead and Copper:
Recordskeeping Requirements--Section 611.361
Section 611.361 derives from 40 CFR 141.91, added by USEPA
at 56 Fed. Reg.
26562,
on June 7,
1991.
This is the
recordskeeping requirement for the lead and copper program.
The
Board adopts the federal language with- only one revision:
the
change of “no fewer than” to “at least”.
By PC
4, the Agency requests that the Board make a double
correction to the proposed text.
It asks that we correct the
erroneously—included citation to the
Code of Federal Regulations.
The Agency further suggests that USEPA intended this as “40 CFR
141.90”.
W~agree,
and the Board has corrected this to read as
“Section 611.360.”
We believe that USEPA also intended retention
of the records assembled pursuant to 40 CFR 141.89 and 141.90
(including the laboratory certification and general reporting
01 ~2-O
127
60
requirements)
Organic
Monitoring
Requirements
Definitions——Section
611.640
The
Board
added
a
definition
of
“Phase
IIB
SOC”
to
this
Section.
This definition includes a Board Note explaining that
while USEPA stayed the NCLs for aldicarb, aldicarb sulfone, and
aldicarb sulfoxide,
it did not stay the monitoring requirements
for these contaminants.
See the discussion of the MCL5 at pages
34—35.
Phase
I VOC Sampling-—Section 611.647
In addition to changing the names of the analytical methods,
as discussed above,
the Board deleted subsection
(h).
This
provision expired on January
1,
1993.
We replaced it with
“dummy” language to maintain structural parity with the
corresponding federal rule 40 CFR 141.24(g).
USEPA has not
repealed that provision.
The Board specifically requested
comment, and Agency PC
4 states that the Agency supports
maintaining structural parity by the use of “dummy”
language.
Phase II SOC Sampling--Section 611.648
In addition to changing the names of the analytical methods,
as discussed above, the Board added a Board Note to subsection
(b) that explains that USEPA stayed the MCL5 for aldicarb,
aldicarb sulfone, and aldicarb sulfoxide but did not stay the
monitoring requirements for these contaminants.
See the
discussion of the MCLs at pages 34-35.
In response to a specific
Board request for comment, the Agency stated in PC
4 that the
Board correctly interpreted the federal requirement and clearly
explained the status of the three stayed SOC5.
Reporting and Public Notice:
MCL Violations-—Section 611.Appen—
dix A
Section 611.Appendix A derives from 40 CFR 141.32, amended
by USEPA at 56 Fed. Req.
26548
(June
7,
1991) and 56 Fed. Req.
30279
(July
1,
1991).
The federal rule sets forth the
contaminant—by—contaminant mandatory health effects information
that suppliers must submit to the public when they violate an
NCL.
The federal amendments added notices for aldicarb,
aldicarb
sulfoxide,
aldicarb sulfone, pentachlorophenol, copper, and lead.
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.
In PC 4, the Agency requests that the Board make two
corrections to specific health effects notices.
The Agency
0111L2-O
128
61
correctly
points
out
that
the
Board
should
underline
the
barium
health
effects
language
in
paragraph
(16).
We
have
done
so.
The
Agency
also
suggests
that
the
Board
should
correct
the
drinking
water standard listed in paragraph
(27) for aldicarb sulfone to
0.002 mg/l.
This would agree with the corrections made for the
MCL,
as discussed above.
We make the correction for the reasons
stated as to the MCL change.
(There is no need for the Board to
correct
the
listing
for
aldicarb
sulf oxide
in
paragraph
(26)
because
that
already
appears
based
on
the
federal
text
as
corrected.)
Federal Effective Dates--Section 61i.Table
Z
Section
611.Tabie
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
have
added
this
as
Table
D
in R91-3 for reference.
As a result of the addition of
additional
tables
in
this
docket,
the
Board
has
renumbered
this
Section
to
611.Table
Z.
We
add
the
effective
dates
for
the
federal
lead
and
copper
program
and
the
Phase
IIB amendments.
We
made
multiple
entries
for
lead
and
copper
because
40
CFR
141.81
through 141.85 had a later effective date than 40 CFR 141.86
through 141.91.
For the Phase IIB rules, the Board has separated
the Phase ha
hoc (inorganic chemical contaminant)
and Phase IIB
SOC entries.
The latter entry notes the federal stay of the MCLs
for aldicarb,
aldicarb sulfone, and aldicarb sulfoxide.
See the
discussion of MCLs at pages
34-35.
CONCLUSION
This proposed opinion supports the Board’s proposed order of
this same day.
The Board will promptly submit these proposed
amendments to the Secretary of State for publication in the
Illinois Register.
I,
Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certif~,çthat the above final opinion was adopted on
the
~-L
day of
____________,
1993,
by a vote of
________
/
-1
/
/
/
(__~
cZ~-~
~
~
Dorothy N.
c~(inn, Clerk
Illinois Po~lutionControl Board
0R2Q129
