ILLINOIS POLLUTION CONTROL BOARD
May 5, 1993
IN THE MATTER OF:
)
SAFE DRINKING WATER ACT
)
R93-1
UPDATE, PHASE V RULES
)
(Identical in
Substance
Rules)
(7/1/92
—
12f31/92)
)
Proposal for Public Comment.
Proposed Opinion of the Board
(by J. Anderson):
SUMMARY
OF TODAY’S ACTION
Pursuant to Section 17.5 of the Environmental Protection Act
(Act), the Board today proposes to update 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 proposed rules appears in
a separate order, adopted this same day.
Section 17.5 of the Act provides for quick adoption of
regulations that are “identical in substance’
to federal
regulations; Section 17.5 provides that Title VII of the Act and
Section
5 of the Illinois Administrative Procedure Act
(APA)
shall not apply.
Because this rulemaking is not subject to
Section 5 of the APA
(5 ILCS 100/5—1 et seq.
(Ill. Rev. Stat.
1991 ch.
127, par. 1005—1 et seq.)),
it is not subject to first
notice or to second notice review by the Joint Committee on
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
R91-3 and R92-9
(consolidated)
(effective December 1,
1992), and
concurrently this date in docket R92-3
(effective upon filing).
It includes the federal Phase V amendments to the chemical
contaminant rules, as adopted by USEPA July 17,
1992.
The result of these proposed amendments will be to add MCL5
and monitoring and notice requirements for five inorganic
chemical contaminants
(antimony, beryllium,
cyanide, nickel, and
thallium), three volatile organic chemical contaminants
(dichioroinethane,
1,2,4—trichlorobenzene, and 1,1,2-trichloro--
ethane), and 18 synthetic organic chemical contaminants
(benzoa)pyrene,
dalapon, di(2-ethylhexyl)adipate, di(2-ethyl-
hexyl)phthalate,
dinoseb, diquat,
endothall,
endrin, glyphosate,
hexachlorobenzene, hexachiorocyclopentadiene,
oxamyl, picloram,
simazine, and 2,3,7,8-TCDD
(dioxin)).
The discussions that
follow consider and discuss these amendments in detail.
01L2-0319
2
FEDERAL ACTIONS COVERED BY THIS
RULEMAKING
The SDWA program was drawn from 40 CFR 141 (national primary
drinking water regulations or NPDWRs),
40 CFR 142 (NPDWRs
implementation),
and 40 CFR 143
(national secondary drinking
water regulations or NSDWRS).
The nominal update period of this
docket is from July 1,
1992 through December 31,
1992.
On July
17,
1992, USEPA made adopted the Phase V rules.
A small segment
of the Phase V Rules was actually a correction to the Lead and
Copper Rules.
We adopted an amendment based on that correction
in docket R92-3.
No other federal actions occurred during this
time—frame.
The only federal action during the time-frame of
this docket was as follows:
57 Fed. Reg.
31847
July 17,
1992
(Phase V rules)
PUBLIC COMMENTS
The Board requests public comments on this proposal for
public comment.
A number of issues are specifically noted to
elicit comments.
The Board will receive comments for 45 days
after a Notice of Proposed Amendments appears in the Illinois
Register.
The Board will then act promptly to adopt amendments
based on the federal amendments involved in this docket.
Interested persons should address their comments to the
Clerk of the Board.
They should provide one original and nine
copies and reference docket number R93—1 on the front of each
copy.
SDWA REGULATORY HISTORICAL SUMMARY
The Board adopted the initial round of USEPA drinking water
regulations, including the “Phase
I”
rules, adopted by USEPA
prior to June 30,
1989,
as follows:
R88—26
114 PCB 149, August 9,
1990
(14 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)
R90—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)
01
L.2-0320
3
R91—3
——
PCB
——,
November 19,
1992
(16 Ill. Reg.
19010,
December 11,
1992,
effective December
1,
1992)
(USEPA Phase II and Coliforms--consolidated with
R92-9; July
1,
1990 through January 31,
1991)
R9.—15
--
PCB
--,
dismissed December
3,
1992
(February 1,
1991 through May 31,
1991)
R92—3
--
PCB
--,
May 6,
1993
(IJSEPA Phase IIB and Lead
and Copper rules; June 1,
1991 through December
31,
1991)
R92—9
——
PCB
——,
November 19,
1992
(16 Ill. Reg. 19010,
December 11,
1992, effective December 1, 1992)
(Corrections to Phase
I rules,
R88—26)
R92-12
—-
PCB
--,
dismissed December 3,
1992
(June
1,
1992 through June 30,
1991)
R93—1
This docket
(USEPA Phase V rules; July 1,
1992
through December 31,
1992)
GENERAL DISCUSSION OF PRESENT ISSUES
This Update concerns the USEPA Phase V rules,
adopted by
USEPA on July 17,
1993.
The Phase V rules involve instituting
new MCLs for 26 contaminants.
This involves five new inorganic
chemical contaminants
(10Cc:
antimony, beryllium, cyanide,
nickel, and thallium), three new volatile organic chemical
contaminants (VOC5:
dichloromethane,
1,2,4—trichlorobenzene, and
1,1,2—trichloroethane),
and 15 new synthetic organic chemical
contaminants SOCs:
benzoa)pyrene,
dalapon, di(2—ethylhexyl)
—
adipate, di(2-ethylhexyl)phthalate, dinoseb, diquat, endothall,
endrin, glyphosate, hexachlorobenzene, hexachlorocyclopentadiene,
oxamyl,
piclorain,
simazine, and 2,3,7,8-TCDD (dioxin)).
Accompanying these revised MCLs are modifications to many of the
monitoring requirements relating to these and the existing 48
MCLs
(12 lOCs,
18 VOCs, and 18 SOCs).
The following discussions
consider the federal actions in greater detail.
Incidental to this rulemaking is the proposed repeal or
amendment of Parts 604 and 605 and amendment of Section 611.521.
The Board repealed major segments of Parts 604 and 605 in R88—26,
since the existing state rules were inconsistent with the new
federal provisions adopted in that proceeding.
The remaining
Sections were left applicable until the corresponding federal
rules became effective as to a particular supplier.
The last
federal effective date is June 29,
1993, not long before the
Board intends to adopt the Phase V amendments.
The Board opens
the issue of what to do with these provisions by suggesting
alternative actions.
I
—
ii
e
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4
DETAILED SECTION-BY-SECTION-ANALYSIS
The Board proposes amendments in response to these federal
actions.
The following detailed section—by—section discussion
focuses on the details of the actions taken.
Routine. General Amendments--All Sections
The Board has also performed a number of standard deviations
from the text of the federal rules.
The rationale behind many of
these is discussed in the August 9,
1990 opinion and order in
docket R88-26
(Phase
I rules), and we will not repeat those
discussions here.
Others are so minor as to warrant no
explanation.
The standard changes are as follows:
1.
Where the federal rules require an action “by” a certain
date,
the Board renders that as “on or before” that date.
2.
We have changed various of the subsections to the active
voice,
rather than following the federal use of the passive
voice.
3.
We have updated all Board Notes to reflect the 1992 version
of the Code of Federal Regulations and to reference the July
17,
1992 Federal Register action, where appropriate.
4.
We have made a number of changes based on the unique
attributes of the Illinois regulatory scheme and on certain
sytlistic preferences, as described in the Addendum re
Standardized Modifications of Federal Text at the end of
this opinion.
General Housekee~inciAmendments
Potential Repeal or Amendment of Existing Disinfection Rules-—
Parts 604 and 605 and Section 611.240
In R88-26,
as part of the Phase
I Rules, the Board adopted
Subpart B
(Filtration and Disinfection) and Subpart L
(Microbiological Monitoring and Analytical Requirements) to Part
611.
This meant the repeal of most of Parts 604 and 605, since
those segments were inconsistent with the newer,
federally—
derived regulations of Part 611.
However, USEPA imposed delayed
effective dates as to disinfection for various suppliers, and
rather than have no standards until the effective dates of the
federally—derived standards, the Board chose to have certain
provisions in Parts 604 and 605 expire when the federally-derived
standards became effective.
For this reason, the Board amended all remaining Sections in
Parts 604 and 605,
Sections 604.101,
604.102, 604.103,
604.104,
604.105,
604.401, 605.101,
605.102, and 605.109,
so that they
(1
ir
2
-
Ii
‘~
~L.
5
lost effect when the federally-derived standards of Subpart B to
Part 611 became effective as to any particular supplier.
Subpart
B derived primarily from 40 CFR 141.70 through 141.73 and 141.75.
In docket R92—3, the Board repealed Sections 605.101 and 605.102,
rather than correct the references in Part 605 to “35 111. Adm.
Code 611.Subpart B” to properly read “35 Ill. Adm. Code 611.
Subpart L”, because the federal monitoring requirements
supplanting them were already in effect.
Section 605.109 was
left intact as effective until the standards of.Subpart B of Part
611 became effective.
USEPA divided the universe of suppliers into categories and
phased the effective dates for each for the disinfection
requirements.
The distinctions drawn are based on the supplier’s
raw water source and its filtration status.
The distinctions
drawn for the purposes of filtration requirements are primarily
based on the supplier’s raw water source.
Suppliers using surface water sources
(SWSs)
(and mixed—
source systems) that did not provide filtration was to have
provided disinfection treatment by December 30,
1991, unless the
state had determined pursuant to 42 U.S.C.
§ 1412(b) (7) (C) that
filtration was required
(a determination that the Board is not
aware was ever made in Illinois).
A SWS supplier using
filtration was to begin providing disinfection treatment no later
than the later of June 29,
1993 or when filtration was installed.
A SWS supplier that did not want to employ filtration was to have
complied with the conditions for avoiding filtration by December
30,
1991
(18 months after the federal promulgation date of June
29,
1989).
If the SWS failed to meet those conditions,
it was to
have employed both filtration and disinfection by the later of
June 29,
1993 or within 18 months of the failure to meet the
conditions.
(40 CFR 141.72 preamble (1992);
35 Ill. Adm. Code
611.240.)
Thus, the SWS5 not initially using filtration were to have
begun disinfection treatment on December 30,
1991,
and those
initially using filtration must begin disinfection treatment by
June 29,
1993.
On the face of this,
only those who install
filtration later than 18 months before June 29,
1993 (pursuant to
a
42 U.S. C.
§
1412(b) (7) (C) determination) might achieve a later
compliance deadline.
However, the Board wonders whether any
suppliers actually fall within this group.
We request comment on
whether there
are actually any SWS suppliers in Illinois that
will have a disinfection compliance deadline later than June 29,
1993 under the federally-derived rules.
For GWSs,
a state determination that the raw water source
was under the direct
influence of groundwater was required before
disinfection was required under the federal rules.
A GWS that
did not provide filtration, and which the state determined to be
under the direct influence of surface water, was to have provided
U
6
disinfection treatment by the later of December 30,
1991 or
within 18 months of when the state made the determination, unless
the state had determined pursuant to 42 U.S.C.
S 1412(b) (7) (C)
that filtration was required.
GWS suppliers that were found by
the state to be under the direct influence of surface water were
to employ disinfection by the later of June 29,
1993 or when
filtration was installed.
(40 CFR 141.72 preamble
(1992);
35
Ill. Adm. Code 611.240.)
In the federal phase-in, USEPA did not impose the
disinfection requirements on GWS suppliers not determined to be
under the direct influence of surface water.
The Board saw £it
to impose, as an additional state requirement, the new federally—
derived disinfection requirements on those suppliers effective
immediately
(September 20,
1990).
(The Agency may exempt any GWS
supplier if it specifically determines that the GWS is from a
protected aquifer pursuant to Section 17(b)
of the Act.
The
Board interpreted this determination as equivalent to a
determination that the GWS was
j~
under the direct influence of
surface water.
This means that under the federal scheme a GWS
supplier need not disinfect until an affirmative state
determination requires it to do so.
Under the Board’s chosen
scheme, and that previously imposed by Section 604.401, the GWS
supplier must disinfect using the federally-derived standards
until an affirmative Agency determination allows it
j~
to do
so.)
(35 Ill. Adm. Code 611.240(g);
~
R88—26 opinion at 23—27,
114 PCB 149, 171—75.)
Therefore,
as with the SWSs, all unfiltered GWSs initially
found to be under the direct influence of surface water were to
have due instituted disinfection treatment by December 30,
1991,
or within 18 months of a state “under the influence”
determination.
All other GWSs
(those filtered)
found under the
influence were to employ disinfection by June 29,
1993 or upon
installation of filtration.
Since Illinois interposes the
Section 17(b)
determination, the Illinois regulations might be
read as structured to effectively presume that all GWS5 are under
the direct influence of surface water, and again, the Board is
unaware whether there are any GWS suppliers for whom the
federally—derived disinfection requirements do not require
disinfection as of June 29,
1993.
We request comment on whether
there are actually any GWS suppliers in Illinois that will have a
disinfection compliance deadline later than June 29,
1993 under
the federally—derived rules.
If all SWS and GWS suppliers in Illinois are required to
employ disinfection by June 29,
1993,
there will be no suppliers
to whom the remaining segments of Part
604
will apply after that
date.
If this is true, the Board requests public comments on
whether we should repeal Part 604 in its entirety as part of this
docket.
0
L~.2-O32L~.
7
However, Part 604 might have continued vitality if the Board
were to reverse action taken in R88—26 with regard to GWS
suppliers not found to be under the direct influence of surface
water.
Under both the federal and state regulations, this
requires a specific finding by the Agency.
Notwithstanding the
Section 17(b) determination that allows a GWS supplier to not
employ filtration and disinfection, it was
(and is) possible for
the Board to impose the requirements of Part 604 on a GWS
supplier until the Agency makes an express determination that the
source is under the direct influence.
The Part 611 disinfection
requirements impose a different standard for disinfection than
those of Part 604.
In both cases disinfection is required until
the Agency makes a Section 17(b)
determination that would make it
not necessary.
The Board prefers to impose a single standard for
disinfection throughout the state, which means employing the
deadlines chosen in R88-26, but we recognize that this imposes
the federal standard for disinfection on GWS suppliers to whom
the standard would never otherwise apply.
The Board requests
public comments on whether we should delete Section 611.240(g)
in
lieu of repealing Part 604, thereby rendering Part 604 applicable
to GWS suppliers for whom the Agency has not made an “under the
direct influence of surface water” determination.
To open
Section 611.240 for the purposes of public comments and this
potential amendment,
the Board proposes the amendment of the Code
of Federal Regulations reference in the Board Note following
subsection
(f).
As to the remaining Section in Part 605, Section 605.109,
it
loses effect when the filtration and disinfection provisions of
35 Ill.
Adm. Code 6l1.Subpart B become effective as to any
particular supplier.
This Section requires daily sampling and
analysis for turbidity.
Since this is the only provision
remaining in Part 605, and since it expires when the Part 611
filtration and disinfection requirements become effective, the
Board requests comment on whether there are any suppliers that
will remain subject to this provision after June
29,
1993
and,
if
not, whether we should repeal Part 605 in its entirety as part of
this docket.
Potential Recodification of Subtitle F:
Public Water Supplies
The pace of adoption and amendment of the federally-derived
Part 611 rules has occurred rapidly since prior to the August,
1990 adoption of R88-26, the first of these several dockets.
The
Board has worked very hard to keep up with the fast pace of
federal revisions.
In the process, the text of Part 611 has
grown voluminous and increasingly complex:
Part 611
Primary Drinking Water Standards
Subpart A
General
(17 Sections)
Subpart B
Filtration and Disinfection
(18
Sections)
(L~2-.~J325
8
Subpart C
Use of Non—Centralized Treatment Devices
(2 Sections)
Subpart D
Treatment Techniques
(3 Sections)
Subpart F
Maximum Contaminant Levels
(7
Sections)
Subpart G
Lead and Copper
(11 Sections)
Subpart K
General Monitoring and Analytical
Requirements
(5 Sections)
Subpart L
Microbiological Monitoring and
Analytical Requirements
(10 Sections)
Subpart N
Turbidity Monitoring and Analytical
Requirements
(1 Section)
Subpart N
Inorganic Monitoring and Analytical
Requirements
(15 Sections)
Subpart 0
Organic Monitoring and Analytical
Requirements
(7 Sections)
Subpart P
THN
Monitoring and Analytical
Requirements
(5 Sections)
Subpart Q
Radiological Monitoring and Analytical
Requirements
(3
Sections)
Subpart T
Reporting, Public Notification and
Recordkeeping
(14 Sections)
Additionally, Part 611 now includes five appendices and eight
tables.
In the past,
the various Parts of Subtitle F were arranged
topically,
and each was relatively brief:
Part 601
Introduction
(5 Sections)
Part 602
Permits
(20 Sections)
Part 603
Ownership and Responsible Personnel
(5
Sections)
Part 604
Finished Water and Raw Water Quality
(potentially repealed in this docket)
Subpart A
Bacteriological Quality
(5 Sections)
Subpart B
Chemical and Physical Quality
(4
Sections, repealed)
Subpart C
Radiological Quality
(3 Sections,
repealed)
Subpart D
Chlorination and Fluoridation
(5
Sections,
4 repealed,
1 potentially
repealed in this docket)
Subpart E
Raw Water
(2 Sections,
repealed)
Part 605
Sampling and Monitoring
(10 Sections,
9
repealed,
1 potentially repealed in this
docket)
Part 606
Reporting and Public Notification
(repealed)
Subpart A
Reporting
(3 Sections, repealed)
Subpart B
Public Notification
(5 Sections,
repealed)
Part 607
Operation and Recordkeeping
(6 Sections,
0!
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9
4 repealed)
However,
assuming the Board repeals Parts 604 and 605 as part of
this docket, only Parts 601
(5 Sections),
602
(20 Sections),
603
(5 Sections),
607
(2 Sections),
and 611
(118 Sections,
five
appendices, and eight tables)
still viable.
This causes the Board to consider dividing the bulk of Part
611 into smaller, more manageable pieces, possibly re—using Parts
604 through 606, augmenting Part 607, and creating new Parts in
some future proceeding.
The pace of federal amendments has ebbed
and will remain less than it has been for the past few years, as
evidenced by USEPA’s semiannual regulatory Agenda, published in
the Federal Register on November 2,
1992:
Regulatory Title
Federal Procedural
Federal Cite
(Board Docket)
Stage
(Fed./State)
Lead and Copper
Final Rule 6-7-91/
56 Fed. Reg. 26547
Rules
Adopted Amendments
(in R92—3)
5—6—93
Phase IIB Rules
(in
Final Rule 7—1-91/
56 Fed Reg. 32074
R92-3)
Adopted Amendments
5—6—93
Phase V Rules
Final Rule 7—17—92/
57 Fed. Reg. 31838
(in R93-3)
Proposed Amendments
5—6—93
E. Coli Analytical
Proposed Rule/--
Expected in 10-92
Methods
(not yet adopted by
TJSEPA)
Radionuclides
Proposed Rule!--
Expected in 4-93
Analytical
Techniques
Trihalomethanes
None!-—
Expected in 9-93
Analytical Methods
Arsenic Rule
None!--
Expected in 11-94
Sulfate Rule
None!-—
Expected in 9—95
Phase VIA
None/-—
Expected in 6-95
(Disinfection By-
products)
Phase VIB
(25
None/-—
Expected in 6-95
contaminants)
UI t~2-O327
10
Groundwater
None/--
Expected in 9-96
Disinfection
This indicates that although USEPA plans some further significant
amendments to its drinking water rules, those will not prompt
another rapid succession of voluminous Board actions for several
more months,
after this present proceeding is completed.
The Board may use the next opportunity
(i.e., the next
routine update docket for the period January
1 through June 30,
1993)
to recodify the federally-derived regulations into several
Parts.
The Board requests public comments as to a possible Part-
by—Part subject matter organization for any such recodification.
The Phase V-Derived Amendments
Definitions——Sections 611.101
& 611.640
The general definitions section, Section 611.101, derives in
significant part from 40 CFR 141.2.
USEPA amended this provision
on July 17,
1992,
at 57 Fed. Req.
31838.
USEPA revised the
definition of “initial compliance period” so that
(1) the
references to the Phase V contaminants were included and
(2) the
initial compliance period for suppliers serving fewer than 150
service connections begins in the first full compliance period
after the effective date of a new regulation.
That
is January 1,
1996 through December 31,
1998 for the Phase V contaminants.
Formerly, the initial compliance period was January
1,
1993
through December 31,
1995 for all suppliers,
as it still remains
for suppliers serving 150 or more service connections.
The Board has proposed the federal amendment, but with
significant structural changes.
We have drafted the definition
so that the initial compliance period begins on January
1,
1993,
except for the Phase V contaminants
(each listed by name)
for
which it begins on January
1,
1996.
The Board has made two additional amendments to Section
611.101 based on the federal Phase V Rules,
but these are based
on the need to add clarity rather than on any specific federal
amendments.
We added a definition of “Phase V”, as referring to
that group of chemical contaminants promulgated by USEPA on July
17,
1992, consistent with existing usage for previous federal
rules.
We also amended the definitions of “SOC” and “VOC” to
include the respective names of the new Phase V chemical
contaminants.
We observed in doing so that we neglected to add
the names of aldicarb, aldicarb sulfone, aldicarb sulfoxide, and
pentachlorophènol to the definition of “SOC”
in docket R92—3.
We
add them in this proceeding.
Section 611.640 does not derive from any particular federal
provision.
Rather, the Board derived these organic monitoring—
LI
i.2-Q328
11
specific terms from the need for defined, consistent use
throughout Subpart 0.
The Phase V amendments have prompted us to
delete endrin from the definition of “old MCL”.
they also
prompted us to add definitions of “Phase V SOC” and “Phase V
VOC”.
We have also added references to “Phase IIB SOC”
(and
oversight from docket R92-3),
“Phase V SOC”, and “Phase V VOC” to
the definition of “revised MCL”.
The Board requests public comments on the way we have dealt
with the definitions amendments to Sections 611.101 and 611.640.
Revisions to the Analytical Methods/Incorporations by Reference
and Monitoring and Analytical Provisions——Sections 611.102,
611.510,
611.600.
611.601,
611.603, 611.609,
611.611.
611.612,
611.646. 611.647
& 611.648
Section 611.102 is the incorporations by reference Section
for Part 611.
There are primarily linear relationships between
Subpart N and 40 CFR 141.23 and between Subpart 0 and 40 CFR
141.24.
This means that Section 611.600 derives from 40 CFR
141.23 preamble and paragraph
(a) (4) (1), Section 611.601 derives
from 40 CFR 141.23(a),
Section 611.603 derives from 40 CFR
141.23(c),
Section 611.609 derives from 40 CFR 141.23(i),
Section
611.611 derives from 40 CFR 141.23(k), major segments of Section
611.612 derive from 40 CFR 141.23(1) through
(q), Section 611.646
derives from 40 CFR 141.24(f)
and Section 611.638 derives from 40
CFR 141.24(h).
As part of the Phase V amendments, at 57 Fed. Reg.
31838
(July 17,
1992),
TJSEPA amended 40 CFR 141
•
23 as follows
(including citations to the corresponding Illinois rules):
Federal Action and Subsection
Corresponding Illinois
or Paragraph Number
Section
amended
(a) (4) (i)
611.600(d)
added
(a) (4) (iii)
611.601(c)
amended
(c) preamble and
(C) (1)
611.603 preamble and
subsection
(a)
amended
(i)(l)
611.609(a)
adding a new
(k) (4)
added in part to
611.611(a), with footnote
6 becoming 611.611(f)
redesignating former
(k) (4)
as
611.611(d)
(k) (5) and amending it
redesignating former
(k) (5) as
611.611(e)
(k) (6)
and amending it
The major thrust of these federal amendments was to add
appropriate references to the five new Phase V lOCs
(antimony,
beryllium,
cyanide, nickel, and thallium), to add methods for
these contaminants, to add sample preservation techniques for
I
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—
12
them,
to add laboratory acceptance limits for them, and to
conform all references to the former beginning of the initial
compliance period by deleting references to “January 1,
1993”.
The Board has proposed amendments corresponding with those
made by USEPA.
We have found it necessary, however, to make
additional amendments as a result of the federal actions.
This
is,
in part, due to the scope of the federal amendments.
It also
relates to what we perceive as possible USEPA oversights.
We add the new federally-designated methods for each of the
new bC contaminants.
This means new methods and detection
limits for the IOC contaminants, antimony, beryllium,
cyanide,
nickel,
and thallium, at Section 611.600(d), the new methods at
Section 611.611(a), the sample preservation techniques at Section
611.611(d), and the laboratory certification requirements at
Section 611.611(e).
We add the federal references to these new
IOC contaminants at Sections 611.601(d) (2); 611.603
(preamble);
and 611.609(a),
(d), and
(e)
(preambles).
In rendering footnote
6 to the table of methods at amended 40 CFR 141.23(k) (4), we have
added subsection
(f)
to Section 611.611 that outlines the sample
preparation technique and added a notation to the preamble to
subsection
(a) to the effect that the laboratory must use that
technique for designated analytical methods.
We also make changes apparently overlooked by USEPA.
The
Board added references to the new lOCs at Section 611.609(b)
(corresponding with 40 CFR 141.23(i) (2), which USEPA did not
amend).
We further added similar references to the Section
611.611(e)
(preamble)
statement relating to provisional
laboratory certification (corresponding with renumbered and
amended 40 CFR 141.23(k) (6)
(preamble)) because we wonder whether
USEPA intended the provisional certification to apply to all of
the pre-existing IOCs.
We delete the method for barium at
Section 611.612(f) (2)
(corresponding with 40 CFR 141.23(q) (2))
because the old MCL for barium was repealed as part of the Phase
IIB amendments in R92—3.
The Board similarly has rendered the method for the state-
only MCL cyanide, at Section 611.612(f) (3), inapplicable when the
new federally—derived MCL becomes effective.
The revised MCL for
cyanide added to Section 611.301(a) will become effective on
January 17,
1994.
Deleting the method for cyanide in this docket
before the federally—derived MCL becomes effective could render
the state-only MCL virtually unenforceable.
In the course of reviewing the federal IOC analytical
methods, the Board also noticed that USEPA updated several of the
references for methods for the pre—existing IOCs.
Thus, all
references to Standard Methods in Section 611.611 (corresponding
with 40 CFR 141.23(k) (4))
are now to the 17th edition and the
correspondingly revised method numbers.
This meant adding the
L~2-O33O
13
federal footnote
6 sample preparation technique,
already referred
to, for existing methods for barium, cadmium,
chromium, and
selenium.
The references for existing ICP method 200.7 was
updated to what the Board now calls “USEPA Environmental Metals
Methods:
Method 200.7” for barium, cadmium, and chromium.
Similarly,
what the Board called “USEPA Inorganic Methods:
Method 300.0” is updated and now called “USEPA Ion Chromatography
Method 300.0” for nitrate and nitrite.
Finally, the Board adds
the federal notations to “the sample digestion technique set
forth in the method”
(federal footnote 9) and to “adding 2mL of
30
hydrogen peroxide”
(federal footnote 10) to the existing
methods for mercury and selenium,
as appropriate.
The Board requests public comments on the way
we have dealt
with
the
bc
analytical
amendments
to
Sections
611.600,
611.601,
611.603,
611.609,
611.611,
and 611.612.
Also a part
of
the
Phase
V
amendments,
at
57 Fed. Reg.
31841
(July 17,
1992), were amendments to 40 CFR 141.24,
as follows
(including citations to the corresponding Illinois rules):
amended
(f) preamble,
(f) (4),
and
(f) (5)
amended
(f)(7)
and (f)(1O)
amended
(f) (12)
amended
(f) (14)
amended
(f) (15)
amended
(f) (16)
amended
(f) (17)
amended
(f) (18)
amended
(h) (10)
amended
(h) (12)
amended
(h) (18)
amended
(h) (19)
As for the IOCs,
the major thrust of these federal amendments was
to add appropriate references to the three new VOC5 (dichloro-
methane,
1,2,4-trichlorobenzene, and 1,1,2—trichioroethane) and
15 new SOCs
(benzo(a3pyrene, dalapon, di(2-ethylhexyl)adipate,
di(2-ethylhexyl)phthalate, dinoseb, diquat, endothall,
endrin,
glyphosate, hexachlorobenzene, hexachiorocyclopentadiene, oxamyl,
picloram,
siinazine,
and 2,3,7,8-TCDD
(dioxin)),
to add methods
for these contaminants, to add laboratory acceptance limits for
them,
and to conform all references to the former beginning of
the initial compliance period by substituting “in the initial
compliance period” for references to “January
1,
1993”.
We add the new federally-designated methods for each of the
Federal Action and Subsection
or Paragraph Number
Corresponding Illinois
Section
611.646(d)
and
(e)
611.646(g),
(1),
and
(j)
611.646(1)
no corresponding provision
611.646(o)
611.646(p)
611.646(q)
611.646(r)
no corresponding provision
611.648(1)
611.648(r)
611.648(s)
~n4~Ui
14
new VOC contaminants.
This is easier than the amendments related
to lOCs and SOC5 because it requires only broadening the
references at the existing methods to include the Phase V VOCs.
Thus,
“Phase
I or Phase II VOCs” now reads “Phase
I, Phase II, or
Phase V VOCs”.
Also,
at subsections
(d),
(e), and (r)(2),
“January 1,
1993”
is changed to refer to the initial compliance
period.
We defer discussion of the SEP amendment to subsection
(g) for the next segment of this opinion.
The Board foresees that this rendering that uses the federal
Phase designations may become unwieldy,
if it has not done so
already.
Therefore, we might consider just rendering these
references as “VOCs” in a future docket.
To date,
the purpose
for designating the Phases was due to the separate requirements
for monitoring the Phase
I VOCs in Section 611.647.
Since
Section 611.646 also applies to Phase I VOCs,
it may be possible
at some future date to repeal Section 611.647 in its entirety.
We hesitate, however, because the remaining subsections in
Section 611.647 do not contain any time—limiting language, such
as “until January 1,
1993”, as did subsection
(h) prior to the
substantive repeal of docket R92-3.
Application to “systems in
operation before January
1,
1993,
for purposes of initial
monitoring”,
as stated in the preamble,
is not sufficiently clear
that the Board can assume that repeal would not result in federal
primacy problems.
The Board requests public comments on the way we have dealt
with the VOC analytical amendments to Section 611.646.
We
especially request comments on the future possibility of
redesignating all VOC5 together as “VOC5”, by dropping the Phase
designations, and on the possible repeal of Section 611.647 as
having no continued future vitality in light of Section 611.646
covering the same contaminants.
We add the new federally-designated methods for each of the
new SOC contaminants.
This is,
in part like the VOC amendments
to Section
611.646,
in that an update to a number of references
to “Phase II SOC5” were updated to read “Phase II, Phase IIB, and
Phase V SOCs”.
(The Phase IIB designation was overlooked in
docket R92-3.)
On the other hand,
a number of methods updates
were necessary,
as for the IOCs.
This means new detection limits
for the SOC contaminants appear at subsection
(r) (2), the new
methods and added contaminants for existing methods appear at
subsection
(I), and the laboratory certification requirements
appear at subsection
(s) (2) (C).
Also,
at subsections
(d) (1)
and
(n)(2), “January 1,
1993”
is changed to refer to the initial
compliance period.
A more detailed examination of the analytical methods
assignments indicates the federal SOC methods assignments and the
possible need to correct a USEPA error.
Endrin, hexachloro—
benzene, hexachlorocyclopentadiene, and simazine were added to
0
L~.2-Q332
15
existing “USEPA Organic Methods” Method 505; simazine was added
to Method 507; endrin and hexachlorobenzene were added to Method
508; dalapon, dinoseb, and picloram were added to Method 515.1;
di (2-ethylhexyl)adipate, di (2-ethylhexyl)phthalate,
endrin, hexa-
chlorobenzene, hexachlorocyclopentadiene,
“polynuclear aromatic
hydrocarbons”,
siiuazine,
and toxaphene were added to Method
535.1; and oxamyl was added to Method 531.1.
The Board added
endrin, for the purposes of the state-only MCL to methods 505 and
508 in R91-3
(Nov.
19,
1992); therefore, we need only add this
contaminant to Method 525.1.
In amending Method 525.1 to add the new contaminants, USEPA
left out the language originally included in the Phase II Rules
where USEPA added this provision (docket R91—3).
That language
uses a 1991 later—revised version of the method.
In assuming
that USEPA erred in deleting the language, the Board does not now
propose its deletion.
USEPA added six new methods for Phase V contaminants.
It
added what the Board has called “USEPA Dioxin and Furan Method
1613” for 2,3,7,8-TCDD (dioxin).
We see no indication that this
is in any way connected with the “USEPA Organic Methods”, so we
have kept this method separate.
The rest of the new methods
appear all from “USEPA Organic Methods”:
Method 547 for
glyphosate, Method 548 for endothall, Method 549 for diquat,
Methods 550 and 550.1 for benzo(a)pyrene and “other polynuclear
aromatic hydrocarbons”.
The Board requests comments on our approach to making the
federal Phase V amendments to Section 611.648
relating to
monitoring the new SOC contaminants.
We especially request
comment as to whether we have properly corrected an apparent
error by retaining the 1991 “revision 3.0 for method 525.1, which
USEPA dropped.
Finally, Section 611.510 derives from 40 CFR 141.40(n).
USEPA amended this provision, relating to monitoring £or
unregulated contaminants, at 57
Fed. Reg. 31845
(July 17,
1993).
The effect of the federal amendments is to delete the listings
for all the Phase V IOCs,
at paragraph
(n) (11),
and VOCs and
SOC5,
at paragraph
(n) (12),
that are now regulated and for which
there are now MCLs.
The Board makes the federal deletions at
corresponding subsections
(k) and
(1).
We also change the
methods columns headings to read “USEPA Organic Methods” and
“USEPA Inorganic Methods”, respectively,
in keeping with the
usage established in docket R91-3 for the rest of the monitoring
provisions in Part 611.
The Board requests comments on our approach to the deletions
from the listing of unregulated contaminants.
0
~2-O333
16
Special Exception Permits——Sections 611.110
& 611.646
The federal Phase V amendments included new language at the
end of 40 CFR 141.24(f) (7)
(corresponding with Section
611.646(g))
that allows the states to waive the initial round of
monitoring for 1,2,4—trichlorobenzene for small system suppliers.
The federal rules do not define a “small system” in the
regulatory text (outside of the context of the Lead and Copper
Rules, where it
is defined as regularly serving fewer than 3,300
persons).
However, the preamble to the federal rules,
at 57 Fed.
Reg. 31825,
appears to contemplate a system with fewer than 500
service connections.
The Board adds this language with a change
that indicates this size limitation in terms of the number of
service connections.
We make a small number of amendments to the core SEP
provision at Section 611.110 to implement the federal Phase V
Rules.
All references at subsection
(e) are now to “Phase I,
Phase II, and Phase V VOCs” and “Phase II, Phase IIB,
and. Phase V
SOCs”.
Additionally, we add to subsection
(e)
a reference to the
SEP from the 1,2,4—trichlorobenzene monitoring requirement of
Section 611.646(d)
for small system suppliers.
The Board requests comment on our approach to the federal
waiver provisions.
BAT Designations for Contaminants—-Sections 611.130.
611.300(c)
&
611. 311(b)
USEPA added new designations of the best available treatment
technology
(BAT)
for each of the Phase V contaminants at 40 CFR
141.62, for IOC5, and 40 CFR 141.61,
for VOC5 and SOCs.
The
Board has adopted these designations without change at
corresponding Sections 611.301(c) and 611.311(b).
However, USEPA
kept with its prior practice of adding to the separate listings
of BAT in the implementation rules of 40 CFR 142.
When adapting 40 CFR 142, Subpart G in R92-3, the Board
referred to the main BAT listings at Sections 611.310 and
611.311, rather than follow the federal structure and maintain a
separate listing at the conditions for relief provisions.
That
saved space and avoided confusion as to whether the BAT
designations were different in the two contexts.
At 57 Fed.
Reg.
31848
(July 17,
1992), USEPA amended 40 CFR 142.62 to add BAT for
each of the Phase V contaminants.
Those added listings are
similar to the ones added at 40 CFR 141.61 and 141.62, with three
notable exceptions:
the heading “PTA”,
for packed tower
aeration”,
in 40 CFR 161.61 appears as “PAT” in section 142.62;
PTA appears in section 142.62 for alachlor, whereas it does not
appear in section 141.61; PAT does not appear in section 142.62,
whereas it appears in section 141.61 for toxaphene; and “OX”
(oxidation) appears in section 142.62 for hexachlorobenzene,
0
~.2-O33I4
17
whereas granulated activated carbon
(GAC)
appears in section 40
CFR 141.61.
Faced with this apparent federal error, the Board has
decided to remain with our single-listing structure and follow
the actual text of the federal substantive rule--i.e., the BAT
listings of 40 CFR 141.61.
However, this still leaves confusion.
In the course of determining USEPA’s intent, we examined the
federal listings of BAT in the preamble discussions, at 56 Fed.
Reg. 3529
(Jan.
30,
1991)
(toxaphene is a Phase II contaminant)
and 57 Fed. Reg. 31778.
This discussion indicates that the 40
CFR 141.61 listing is correct as to alachlor and hexachloro-
benzene, but the preamble at 56 Fed. Reg.
3529 indicates that
USEPA may not have intended PTA as BAT for toxaphene.
We have
added a Board Notes to this effect at Section 611.130(c) (1) and
611.311(b).
Nevertheless, we have followed the actual text of 40
CFR 141.61(b) because the rule text is enforceable and the
federal preamble discussion is not.
The Board requests comments on the codification of BAT for
the chemical contaminants at Sections 611.301(c)
and 611.311(b).
Specifically, we request comment on our use of the single
listings of BATS for both the substantive rules and the
limitations on relief rules of Section 611.130 and on our dealing
with the apparent federal errors as to alachlor,
toxaphene,
and
hexachlorobenzene.
MCLs——Sections 611.300, 611.301,
611.310, and 611.311
Section 611.300 derives from 40 CFR 141.11.
USEPA did not
amend this provision in the current update period, but other
federal amendments prompted Board action and inquiry.
The only remaining federal MCL at 40 CFR 141.11(b)
is that
for arsenic.
The Board has in dockets R91—3 and R92—3 followed
the federal lead and deleted the remaining federally-derived MCL5
from Section 611.300(b).
USEPA has retained the introductory
text of subsection
(a), the fluoride limitation of subsection
(c)
(which the Board has listed in subsection
(b)), and the
conditions for higher nitrate limitations for non-CWSs in
subsection
(d).
The Board has also followed the federal lead to
retain these, even if it has lead to a double listing of the MCL
for fluoride at both Sections 611.300 and 611.301 and an apparent
dislocation of the nitrate exception from the listing of the MCL
at Section 611.301.
Section 611.300(b)
also includes four remaining state—only
MCL5 for cyanide,
iron, manganese, and zinc.
We recently deleted
the fifth prior state-only MCL for copper in docket R92-3, in
response to the federal Lead and Copper Rules.
We now delete the
state-only MCL for cyanide, effective when the new federally—
derived MCL becomes effective on January 17,
1994.
Although the
0 L~2-O335
18
state—only MCL of Section 611.300(b)
is the same as the new
federal MCL for cyanide, which the Board codifies at Section
611.301, we believe that the existence of two MCLs would lead to
confusion and possible inconsistency with the federal rules.
At past meetings of the regulatory work group, the Agency
has raised the issue of whether the Board should delete the
remaining state—only MCL5.
The Board always responded that since
those are rules adopted pursuant to Section 27 of the Act, and
since they do not render the state regulations less stringent
than or inconsistent with the federal regulations, we cannot
delete them in an identical—in—substance proceeding pursuant to
Sections 7.2 and 17.5.
Therefore,
if the Agency desires to
delete the remaining state—only MCLs,
in the absence of a federal
action that would necessitate their deletion, we would invite the
Agency to file a petition for regulatory amendment pursuant to
Section 27 of the Act.
Section 611.300(c)
contains a listing of the secondary MCL
for fluoride.
Corresponding 40 CFR 141.11(c) contains the NCL
for fluoride ~nd a reference to the secondary MCL at 40 CFR
143.3.
The federal secondary MCLs are advisory only,
and they
are not enforceable.
For this reason, the Board has deleted this
language and replaced subsection
(c) with our traditional “dummy”
language to maintain structural parity with the corresponding
federal provision.
In examining this section for the purposes of amendment in
response to the federal Phase V amendments, we question the way
we crafted subsection
(d)
in R88-26.
This subsection allows non-
CWSs to exceed the nitrate NCL as provided by 40 CFR 141.11(d)
and incorporates the federal provision by reference.
There is no
cross-reference to Section 611.301(b),
where the MCL actually
appears.
40 CFR 141.11(d) provides that the states may allow a
non-CWS to exceed the NCL for nitrate, up to a level
of 20 mg/i,
if certain conditions are fulfilled:
1.
the water must not be available for consumption by
children under six years old,
2.
there will be continuous public notice of the fact that
the nitrate level exceeds the MCL and of the potential
adverse health effects of elevated nitrate,
3.
there will be annual notification to state and local
public health officials of nitrate levels in excess of
the MCL, and
4.
no adverse health effects will result from the
exceedance.
Aside from the issue of the separation of this exception
0
L~.2-U336
19
from the MCL, the Board has a few questions about this provision.
Initially, we question whether we should even retain this
provision,
since this provision is federally—optional.
Assuming
it is a desireable provision, the Board wonders whether we should
just set forth the federal language, like we have for nearly the
entire text of the federal rules.
The test is not particularly
lengthy and highly technical, which are two factors that usually
prompt an incorporation by reference.
In fact, the federal use
of “at the discretion of the state” in the incorporated test
presents some potential difficulty.
Further, by setting forth
the test, we could spell out the need to notify the “Illinois
Department of Public Health and the county and city departments
of health,
as appropriate,
for the political subdivision(s)
served by the supplier with the water that exceeds the nitrate
MCL.”
A final issue relates to whether this prerogative of
deciding to use the exception should rest solely with the
supplier.
In all other contexts where USEPA has rested a
discretionary decision of this nature based on fixed criteria
with the state,
Illinois has used the mechanism of the SEP and
the Agency makes the determination based on enunciated standards,
subject to Board review.
The Board believes that using the SEP
mechanism for granting nitrate “exceptions” may be the proper
tool to use.
Finally, the Board has amended subsection
(e)
for clarity
and structural consistency with the rest of the rules without
making any substantive change.
We have removed the colon, using
“for”
in its place,
and we substituted “MCLs” for
“concentrations”.
The
Board requests public comments on our approach to
Section 611.300
Specifically, we request comments on our
deletion of the state-only MCL for cyanide, our deletion of the
secondary MCL for fluoride, on whether we should codify the
language of the federal nitrate exception in place of the
incorporation by reference, and on whether we should use the SEP
mechanism for granting nitrate “exceptions”.
Section 611.301 derives from 40 CFR 141.62, amended by USEPA
at 57 Fed. Reg. 31847
(July 17,
1992).
For antimony, beryllium,
cyanide, nickel, and thallium, USEPA added the MCLs at subsection
(b)
and BAT designations at subsection
(c).
The new MCLs apply
to CWSs and NTNCWS5, and not to transient suppliers.
The
Board makes minimal correction to the federal text in
adapting their substance to the Illinois system.
The Board has
rendered the federal “chlorine” as “chlorination” and
“ultraviolent” as “ultraviolet irradiation”.
We retained the BAT
listing of “UV” despite the fact that USEPA designated it for
none of the lOCs.
In adapting the new bC MCLs, we add a statement to the
0
L~2-U337
20
preamble of Section 611.301(b) that states that they become
effective on January 17,
1994.
In the first update that will
clearly become effective only after that date has passed,. the
Board can delete this statement in keeping with our past
practice.
We request public comments on our approach to the new
federal IOC MCL5.
Specifically, we request comment on
our
correction of an obvious federal error in citing “ultraviolent”
as BAT, yet keeping it listed despite the lack of any contaminant
to which it applies under the federal rules.
Section 611.310 derives from 40 CFR 141.12, amended by USEPA
at 57 Fed. Reg.
31838
(July 17,
1993).
USEPA deleted the
existing MCL for endrin at subsection
(a), since
it adopted
another new NCL for endrin at 40 CFR 141.61 (corresponding with
Section 611.311), and marked subsection
(a)
as “reserved”.
Therefore,
40 CFR 141.12 contains only one remaining MCL, that
for
TTHM5,
and it applies only to CWSs that add a disinfectant
and which provide water to 10,000 or more persons.
The MCLs for
aidrin,
DDT, dieldrin, heptachlor, heptachior epoxide,
and 2,4-D’
and TTHM
(to the extent it applies to all other suppliers) are
state-only MCL5.
The Board follows through and deletes the prior federally-
derived MCL for endrin.
We correspondingly amend the Board Notes
to subsections
(a)
and
(b) to observe that they were formerlY
derived from 40 CFR 141.12(a)
and
(b) and note the federal
deletion of the last federal MCL.
This is an action overlooked
in docket R91-3 as to subsection
(b) when USEPA similarly removed
the final MCL in 40 CFR 141.12(b)
and marked the subsection
“reserved”.
The Board is also considering an additional action with
regard to Section 611.310 that would shorten it.
Since there is
only one remaining federal NCL at 40 CFR 141.12(c)
(for
TTHM5)
and the balance of this Section includes only state-only MCLs,
it
may be desireable to “collapse” the three subsections with their
three Board Notes into a single listing with a single Board Note.
We believe that this structure would more clearly impart the
requirements to the regulated community——especially since there
is no longer any need to maintain structural parity with the
corresponding federal rule.
The Board requests public comments on our approach to
1
USEPA has adopted MCL5 for heptachior, heptachlor
epoxide, and 2,4-D as part of the Phase II Rules.
In R91-3, the
Board retained the state—only MCL5 for these contaminants because
they are more stringent than the federal MCLs.
0
L~-Q333
21
Section 611.310.
We specifically request comments on the
possible restructuring of this Section by the removal of all
subsection designations and the consolidation of the substance of
all the Board Notes into a single Board Note.
Section 611.311 derives from 40 CFR 141.61, amended by USEPA
at 57 Fed. Reg. 31846
(July 17,
1992).
USEPA added MCLs for the
new Phase V three VOC5 to subsection
(a) and MCLs for the 15 new
Phase V SOCs to subsection
(c).
(As previously discussed, the
BAT designations for all the new Phase V organic contaminants are
added to subsection
(b).)
The new MCL5 become effective on
January 17,
1994.
The Board adopts the 18 new Phase V MCLS for
organic contaminants without changing the federal text.
~e add a
Board Note to both subsections to draw attention to the amended
definition of “initial compliance period” at Section 611.101,
in
order to highlight the delay in monitoring for these
contaminants.
In adapting the new VOC and SOC MCLS, we add statements to
the preambles of Section 611.311(a)
and
(C)
that states that they
become effective on January 17,
1994.
In the first update that
will clearly become effective only after that date has passed,
the Board can delete this statement in keeping with our past
practice
*
We request public comments on our approach to the new
federal VOC and SOC MCLs.
Lead and Copper:
Analytical Provisions—-Section 611.359
Section 611.359 derives from 40 CFR 141.89.
This Section
sets forth the analytical requirements for the lead and copper
program.
USEPA made a corrective amendment to this provision at
57 Fed. Reg.
31847, on July 17,
1991.
The Board made the
necessary revision in adopting Section 611.359 in docket R92—3,
so no further action is necessary in this docket.
ReportincT and Public Notice:
NCL Violations--Section 611.AplDen-
dix A
Section 611.Appendix A derives from 40 CFR 141.32, amended
by USEPA at 57 Fed. Reg. 31843
(July 17,
1992).
The federal rule
sets forth the contaminant-by—contaminant mandatory health
effects information that suppliers must submit to the public when
they violate an MCL.
The federal amendments added notices for
each of the new Phase
V
contaminants:
five IOCs
(antimony,
beryllium,
cyanide, nickel, and thallium), three VOCs (dichloro-
methane, 12, 4—trichlorobenzene, and 1,1,2—trichioroethane), and
18 SOCs (benzo(ajpyrene, dalapon, di (2—ethylhexyl)adipate, di(2—
ethylhexyl) phthalate,
dinoseb, diquat, endothall,
endrin,
glyphosate, hexachlorobenzene, hexachiorocyclopentadiene, oxamyl,
picloram, simazine, and 2,3,7,8—TCDD (dioxin)).
The Board adopts
ç\
~
22
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.
Federal Effective Dates--Section 611.Table
Z
Section 611.Table Z derives from no particular federal
provision.
Rather, the Board believes that setting forth the
federal effective dates for the various federal MCL5 would prove
useful to the regulated community.
We added this as Table D in
R91—3 for reference and renumbered it to Table Z in R92-03.
We
add the effective dates for the federal Phase V amendments.
The
Board has separated the Phase V IOC, Phase V VOC, and Phase V SOC
entries.
AGENCY OR BOARD ACTION?
Section 7.2(a)(5)
of the Act requires the Board to specify
which decisions
tJSEPA
will retain.
In addition, the Board is to
specify which State agency is to make decisions,
based on the
general division of functions within the Act and other Illinois
statutes.
In situations in which the Board has determined that USEPA
will retain decision-making authority, the Board has replaced
“Regional Administrator” with USEPA,
so as to avoid specifying
which office within USEPA is to make a decision.
In a few instances in identical in substance rules,
decisions are not appropriate for Agency action pursuant to a
permit application.
Among the considerations in determining the
general division of authority between the Agency and the Board
are:
1.
Is the person making the decision applying a Board
regulation,
or taking action contrary to
(“waiving”)
a Board
regulation?
It generally takes some form of Board action to
“waive” a Board regulation.
2.
Is there a clear standard for action such that the
Board can give meaningful review to an Agency decision?
3.
Does the action result in exemption from the permit
requirement itself?
If so, Board action is generally
required.
4.
Does the decision amount to “determining, defining or
implementing environmental control standards” within the
meaning of Section 5(b)
of the Act.
If so,
it must be made
by the Board.
C,. ~
U
~
23
There are four common classes of Board decision:
variance,
adjusted standard, site specific rulemaking, and enforcement.
The first three are methods by which a regulation can be
temporarily postponed (variance)
or adjusted to meet specific
situations (adjusted standard or site specific rulemaking).
Note
that there often are differences in the nomenclature for these
decisions between the USEPA and Board regulations.
EDITORIAL CONVENTIONS
As a final note, the federal rules have been edited to
establish a uniform usage throughout the Board’s regulations.
For example, with respect to “shall”,
“will”, and “may”
—
“shall”
is used when the subject of a sentence has to do something.
“Must” is used when someone has to do something,
but that someone
is not the subject of the sentence.
“Will” is used when the
Board obliges itself to do something.
“May”
is used when choice
of
a provision is optional.
“Or” is used rather than “and/or”,
and denotes “one or both”.
“Either”...”or” denotes “one but not
both”.
“And” denotes “both”.
CONCLUSION
This
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 M.
Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify that the above proposed opinion was adopted
on the
5~
day of
~-~-i--
,
1993, by a vote of
~
/
/1
A
~/
/~.
.r.
Dorothy Mi/Gunn, Clerk
Illinois ~ollution Control Board
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