ILLINOIS POLLUTION CONTROL BOARD

March 11,

1992

IN THE

MATTER

OF:

P91—3

SAFE DRINKING WATER ACT

)

(Identical

in Substance)

UPDATE

(7/1/90

—

1/31/91)

PROPOSAL FOR PUBLIC. COMMENT

PROPOSED OPINION OF THE BOARD

(by J.

Anderson):

Pur’suant to Section 17.5 of the Environmental Protection Act

(Act), the Board is proposing to update its regulations which are

identical

in substance to USEPA regulations implementing the Safe

Drinking Water Act

(SDWA).

The Board rules are contained

in 35

Ill.

Adm. Code 611.

The text of the proposed rules

is

in a

separate Proposed Order, adopted this same day.

The Board will

receive written public comment for 45 days after the date of

publication

in the Illinois Register.

Section

17.5 of the Act provides for quick adoption

of

regulations which 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,

it ~

not subject to first notice or to

second notice review by the Joint Committee on Administrative

Rules

(JCAR).

The SDWA program was drawn from 40 CFR 141 and 143

(1989).

Only two amendments occurred during this update batch:

56

Fed.

Peg.

1557

January

8,

1991

56

Fed.

Peg.

3578

January 30,

1991

The two USEPA rulemakirigs appeared

in January,

1991.

The

first concerned additional approvals for the use of the “MMO-MUC”

test for E.

coli.

The seOond was the USEPA “Phase II” rules.

The Board normally “batches” USEPA rules which appeared in a

calendar half year.

This Docket would normally address USEPA

during the period July

1,

1990 through December

31,

1990.

However,

no USEPA actions occurred during that time.

The Board

therefore extended the batch period to include January,

1991.

The Board will also address the additional approvals of the

“MMO-MUG” test for

E.

coli negative results, which appeared at 57

Fed.

Peg.

1850,

January

15,

1992.

This

is closely related to the

January 8,

1991, Federal Register, and hence can be added to this

Docket without causing any delay.

131—69

---

2

PUBLIC COMMENT

The Board has received some public comment in advance of the

formal proposal in this Docket.

This is summarized as follows:

PC 1

Illinois Environmental Protection Agency

(Agency)

June 17,

1991

Pc 2

Agency, June 19,

1991

Pc

3

Environetics, February 10,

1992

PC

4

Agency, January 23,

1992

PC

3 and 4 requested inclusion of the January 15,

1992,

Federal Register, which is discussed above, and in connection

with Section 611.526, below.

PC

1 and

2 are preliminary comments by the Agency, which the

Board received in the course of developing the Proposal.

“PHASE II” RULES

Most of this Update concerns the USEPA “Phase II” rules.

This involves the adoption of “revised MCL’S” for some eight

inorganic contaminants, ten organic contaminants and fourteen

pesticides and PCBs.

Accompanying these revised MCLs is a major

overhaul of the monitoring and reporting requirements.

The Board staff began working on the Phase II rules in

February,

1991, shortly after they appeared in the Federal

Register.

The Phase II rules consist of

19 pages of new federal

regulations, in the Federal Register format.

Compared to the

other “identical in substance” programs, this would be a moderate

sized rulemaking which could have been completed within a few

weeks.

However,

as discussed below,

it has taken 13 months to

prepare this proposal.

Most USEPA rules subject to an “identical in substance”

mandate are “pattern” rules which serve at least two purposes:

they govern the conduct of the regulated public in states where

USEPA administers the program directly, and they serve as

patterns for the rules the states are supposed to adopt.

Very

few of the Phase II rules are pattern rules.

Rather, most are

“directives”, to the states to adopt rules.

While some of the

directives are highly specific, others appear to allow the states

wide latitude as to the text to be adopted.

Although the “directive” approach makes

it in some ways

easier to write approvable rules,

it also imposes a greater

13 1—70

---

3

burden on the Board to draft new text.

In very few cases is it

possible to “just adopt the federal text”.

Almost every

provision has to at least be converted from “The state shall

require

X”

to “The supplier shall do X”.

Usually one needs to

understand what X is to accomplish the conversion from directive

to correctly worded State rule.

The main problem with preparing a proposal implementing the

Phase II rules has been ambiguities and errors in the USEPA text.

One way of looi.ing at these is that, because USEPA is not writing

“patterr’i rules”, it is not necessary for USEPA to be very

specific as to what it is requiring.

In other words,

USEPA is

relying on the State to fill in gaps in its requirements.

However,

another way of looking at the Phase II rules

is that

they are just rife with errors.

Although the Board staff has not yet compiled a complete

list, there appear to be well in excess of 1000 errors and

ambiguities in the

(19 page) Phase

II rules.

The general

discussion below identifies more than 50 types of repeate&

errors.

And, the Section—by—Section discussion identifies many

more isolated errors.

Moreover, the errors are so numerous that

it was simply impossible to even note all of them in the Opinion.

At many points

in ~theUSEPA text,

apparent errors occur at a

rate greater than three errors per line.

When errors become this

dense,

it is often impossible to understand what the intended

meaning of the rule was.

The process of developing the proposal

became one of forming hypothetical meanings for rules, attempting

to “best fit” the text to several hypotheses, and then editing

the. rule to conform with the best.

This was extremely time

consuming.

Beyond this level of review, the Phase II rules have a

problem caused by the interaction of errors.

The interpretation

of each USEPA rule must be made in the context of other

interrelated rules.

These other rules are also rife with

apparent errors.

The result is that the interpretation of one

USEPA rule may depend on the correct interpretation of several

other USEPA rules.

During development of the Proposal, the Board staff sought

help from USEPA and the Agency several times.

For several rules,

the Board obtained valuable insights which helped greatly in the

formulation of the proposal.

However,

it took a great deal of

time to get answers from these agencies.

The staff stopped

seeking clarification in this manner, after it became clear that

it would have taken several more years to resolve all problems.

The Board has determined that the most efficient way to proceed

is to put a complete proposal out for comment, even with the

knowledge that it may well be necessary to make it conform with

USEPA’s intended meaning for the “Phase II” rules.

13

1—7

1

---

REASONS

FOR

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 Uextensjon of time”

is necessary,

give the reasons why

the

one year period is insufficient, publish

the finding and reasons in the Illinois Register and specify a

date when the Board anticipates completion of the rulemaking.

The Board entered a reasons for extension Order on January 9,

1992.

The Board cited the errors in the Phase II rules,

and

indicated that it hoped to have a proposal out by March 1,

1992.

HISTORY OF SDWA PROGRAM

The SDWA rules were recently adopted in Docket R88-26.

The

Board entered a Proposed Opinion and Order on October

5,

1989.

The proposal appeared on December 1,

1989,

at 13 Iii. Reg.

18690.

Following the public comment period, the Board adopted a “Final”

Opinion and Order on May 24, 1990.

The Board then allowed a

post-adoption comment period.

On August

9,

1990, the Board

withdrew the May 24 Opinion and Order,

and substituted

a new

Opinion and Order.

The actions on the SDWA rules are summarized as follows:

R88—26

August 9,

1990;

14 Ill. Reg.

16517,

effective September 20, 1990.

Original

adoption (through June 30,

1989).

R90-4

Dismissed June 21,

1990

(No USEPA amendments

July

1 through December 31,

1989)

R90—13

December 20,

1990;

15

Ill. Reg.

1562,

effective January 22,

1991 (January

1,

1990

through June 30,

1990)

R90-21

Adopted November 29,

1990;

14

Ill.

Reg.

20448, effective December 11,

1990

(Corrections to R88-26)

GENERAL DISCUSSION OF PROBLEMS IN DEVELOPING STATE RULES

ERRORS

AND

AMBIGUITIES IN USEPA TEXT

Before entering into the Section-by-Section discussion of

the Proposal, the Board will set forth a general discussion of

issues which recur frequently in the detailed discussion.

The

first portion of this will address errors and ambiguities in the

USEPA rules.

The second portion will deal with problems which

arise more from special Illinois situations than from errors in

the USEPA rules per se.

131—72

---

5

Most of this Proposal is derived from the USEPA “Phase II”

rules

in the January 30,

1991, Federal Register.

This rulemaking

has many perceived errors.

We have made every effort to attempt

to correct each of these.

This effort has been further

complicated by the cumulative effect of the errors:

The

interpretation of many USEPA provisio~isdepends on whether the

Board’s interpretation of other provisions was correct.

Most of the body of this Proposed Opinion is a line-by-line

discussion of the errors in the USEPA rules.

The Board has

attempted to document exactly what it has changed in the USEPA

rules,

and why.

This is for the purpose of soliciting meaningful

comment on the Proposal, and to lay the groundwork for the final

Opinion, which will memorialize these interpretations.

In this section of the Opinion, the Board will provide a

generalized discussion of USEPA errors which are repeated.

This

discussion will be back referenced in more detailed discussion.

Authority to Correct USEPA Errors

Section 7.2 of the Act defines “identical in substance”, and

lists specific types of changes which the Board can make to USEPA

rules.

Section 7.2(a)(7) allows the Board to correct apparent

typographical and grammatical errors in USEPA rules.

Although

some of the USEPA errors fall into this category, most fall

outside it.

At one time typographical errors involved misspelled words,

and would be present in only one occurrence of repeated text.

However, spell checking has largely eliminated simple

misspelling, so that a typo is more likely to be the wrong word,

spelled correctly.

Moreover, typos can propagate through a

document through copying and phrasing,

so that multiple

occurrences no longer necessarily mean the language is not a

typo.

The type of apparent grammatical error common in these rules

involves sentences which have a grammatically correct reading,

but which say something absurd.

For example,

“Don’t put anything

in the water which is harmful to fish of other than natural

origin”.

Usually it is obvious what the sentence is supposed to

say.

If the Board can make a grammatically correct sentence with

the apparent intended meaning by moving and changing a few words,

it has done so.

.

Grammatical errors are closely related to logical errors,

which are discussed below.

In most cases USEPA uses “and” to

mean “or”,

and vice versa.

Where the resulting rule is absurd,

the Board has corrected it as a grammatical error.

At some point the USEPA errors cannot be characterized as

131—73

---

6

grammatical or typographical errors.

The authority to correct

these goes back to the basic definition of “identical in

substance” in Section 7.2(a)

of the Act.

The Board is supposed

to adopt:

State regulations which require the same actions with

respect to protection of the environment,

by the same

group of affected persons, as would federal regulations

if USEPA administered the subject program in Illinois.

Where the USEPA rule says “Do A”, but USEPA would interpret

this to mean “Don’t do A” or “Do B” if it administered the

Illinois Program, the Board has modified the language of the

State rule to reflect USEPA’s intent.

Persons in Illinois would

be required to do the same actions under the Board rule.

The

only difference is that they can read the Board rule and perform

the required action, without first obtaining in each instance the

proper interpretation of the USEPA rule.

One problem with this approach occurs when it is unclear

what the USEPA intent is.

In the proposed Opinion and Order, the

Board has offered an interpretation of what each of these mean,

and modified the rule to state what it interprets is the intended

meaning.

We must emphasize that USEPA, the Agency, suppliers or

anyone else must express any disagreement in the public comment.

If the Board receives no comment,

it likely will adopt the rule

as proposed~ this will constitute a final determination as to

what the USEPA rule intends to say, and will apply as Illinois

regulatory law.

This mechanism cannot be used to correct what are perceived

as substantive errors of USEPA.

For example, the Board cannot

decide that the USEPA MCL for a parameter is too strict, or not

strict enough, and “correct” the error.

As long as the USEPA

rule has a meaning which makes sense,

the Board will not disturb

it.

However,

as will become apparent below,

it can be difficult

to discern whether a number of provisions in the Phase II rules

do or do not fall into this category (apart from the numerical

values of most of the !4CL5).

We appreciate the difficulty in framing regulations.

However, we believe we should make every effort to avoid

repeating unclear or erroneous language at the State level.

We

note that,

in typical identical in substance rulemaking, the most

serious problems comprise less than 1

of the text,

but take up

90

of the Opinion.

This is not the case in this Docket.

Serious errors appear to exist in more than 50

of the USEPA

text.

131—74

---

7

Typos

and

Misprints

The

Phase

II rules have relatively few straight

typographical errors.

Most of these involve symbols, such as

“?“.

These are apparently

wrong

in the printed copy of the

Federal

Register

from

which

the

Board

is

working,

although

the

problem may be one of legibility.

However, they are correct on

the diskettes provided by USEPA.

The Board has generally

followed the diskettes.

Conjunctions and Related Errors

CONJUNCTIONS

The

Phase

II

rules

usually

use “and” to mean “or”,

and vice

versa.

The

Board

has

attempted

to

discern

the

meaning

of

the

rule,

and inserted the

correct

conjunction,

as

appropriate.

It may be helpful to set out examples of the use of “and”

and “or”.

When a rule says “If A and B are true,

do

X”,

it

means

that you only have to do X if both A and B are true.

If A is

false, you don’t have to do X.

Or,

if

B

is

false,

you

don’t

have

to

do

X.

When

a rule says

‘!If A or B is true,

do X”, it means you

have

to

do

X

if

either

A

or

B is true,

or if both are true.

Also,

you don’t have to do X if neither A nor B is true.

Confusion

may

arise

with

respect

to

the

negation

of

“and”.

Suppose a rule says “Don’t do X andY”.

This.is ambiguous as to

whether it means “Do not do

(X and Y)” or “(Do not do X) and

(do

not do 1)”.

There is a big difference between these two

interpretations:

Someone who does X, but not Y,

is in violation

of the latter, but not the former.

When the Board sees these

rules,

it attempts to determine what USEPA means,

and places the

rule into a less ambiguous format.

Of the two possible meanings,

rules which really mean “Don’t do

(X and Y)” are rare,

and are

dealt

with

by

making

the

language

clearer.

AND/OR

“Don’t do X and Y” more often means “(Do not do X) and (do

riot

do Y)”.

The Board often expresses this as “Do not do X or

Y”, which is logically identical.

In other words,

“Don’t kick

and bite your brother” becomes “Don’t kick or bite your brother”.

Another

type

of

logical

error

centers

on

the

use

of

“and/or”.

The Administrative Code Division objects to the use of

“and/or”

in a rule.

(1 Ill.

Adin.

Code 100.180,

Style Manual,

Section 1-21)

As normally used in English, and as defined above,

“A or B” means “A or B or both”, which is exactly what “and/or”

appears to mean.

131—75

---

8

The

Board

has

generally

modified

the

“and/or’s”

to

accept

the Code Division’s usage.

This usually involves replacing

“and/or” with the equivalent “or”.

However, in some instances,

it appears that USEPA really means “and”,

or something which

requires an entire rewrite of the rule to accomplish.

QUARTER(S)

Closely related is the category of errors from using

“quartez(s)” in provisions requiring monitoring in the

“quarter(s)” in which

a parameter reached its highest level.

(For example,

40 CFR 141.23(d)(5)

,

Section 611.604(e))

This

appears to be acceptable to the Code Division as an abbreviation

for “quarter or quarters”.

However,

in the context in which it

occurs repeatedly,

“or quarters” would appear to require

monitoring in two or more quarters if equal maximum levels were

reached at one sampling location.

This would contradict more

specific language requiring monitoring once each year (or

period).

The Board has therefore changed “quarter(s)” to

“quarter”, with the understanding that,

if two or more quarters

have equal maxima, the Agency is to pick one for future

monitoring.

Another possible meaning of the USEPA use of “quarter(s)” is

that it is addressing the possibility that different sampling

points might reach maxima during different quarters.

As the

Board understands the USEPA rules, unless the contrary is

indicated,

they are addressing a single sampling point.

In other

words, when a rule says “initiate quarterly monitoring if you

detect a contaminant”,

it means quarterly monitoring at that

sampling point, but not in the rest of the system.

The Board

solicits comment as to whether this interpretation is correct,

and as to whether any provisions need to be more specific on this

point.

USEPA Guidance Materials

While the Board was working on the proposal, the Agency

obtained from USEPA a set of charts with a graphical presentation

of what these rules were supposed to say.

The staff observed

that,

on many points, the charts not only said the opposite of

the rules, but also were internally contradictory.

The Board

contacted USEPA headquarters, and was advised that both the

charts and rules needed correction.

The Board accordingly

discarded the charts as a source of clarification.

(40 CFR

141.24(f) (9), Section 611.646(e))

In a few instances the Preamble to the USEPA rule provides

guidance as to what a provision’ is supposed to mean.

In at least

one case, Section 611.296, the Board has completely rewritten the

Section to say what the Preamble says,

after observing that the

adopted rule saic~the opposite of the Preamble.

40

CFR 141.111,

131—76

---

9

56 Fed. Reg.

3558)

However,

in most cases in which the Board has

looked, the preamble is silent on what

a given Section is trying

to say.

Since it is very difficult to find the discussion of a

given Section in the Preamble, the Board has not undertaken’ a

systematic search.

However, commenters are invited to find the

appropriate discussion to see

if it squares with the Board’s

interpretation.

Delayed Effective Dates

USEPA adopted these rules with a delayed effective date,

following the “old rule effective until

(date);

new rule

effective after (date)” approach, which has been used in several

recent rulemakings.

This causes major confusion in the printed

version of the CFR, since there are two printed versions of the

affected sections until

(date).

It would help greatly if the

rules could be formulated as:

“until

(date)

do this;

after

(date)

do that.”

To meet the “identical

in substance” mandate

within the specified time frames, the Board has had to

essentially modify the USEPA rules so they say this.

The

alternative would beto set up a schedule. of future rulemakings

to revise the Board rules as the effective dates of the USEPA

rules arrive.

However, the time frames of Section 7.2(b)

of the

Act are triggered by the dates of publication, with no mention of

federal delayed effective dates.

Therefore,

the Board has

proposed to adopt rules presently, which will require compliance

by the federal dates.

In connection with the inorganic contaminants, USEPA adopted

a delayed effective date for the revised MCLs, but left the old

NCL5 in place until that date.

(For example,

40 CFR 141.11 and

141.62 and Section 611.300)

USEPA has adopted the same delayed

date for the organic revised MCL5,

but has not left the old MCLs

in place pending that date.

For

example, 40 CFR 141.12 and

141.61 and Section 611.310)

This would leave no MCL for

chlordane,

lindane, methoxychlor, toxaphene and 2,4,5-TP, pending

the effective date of the revised MCLs.

The Board assumes this

is an error by USEPA,

and has proposed to retain these MCLs in

Section 611.310 until the effective date for the revised NCLS.

The Board solicits

comment.

Are

BATs Alternative or Sequential Processes?

The USEPA BAT tables have a fundamental ambiguity:

does

USEPA mean to be specifying alternative BATs for these

parameters,

or is it specifying a sequence of technologies which,

taken together, constitute BAT?

For

example,

40 CFR 141.62(c)

and Section 611.301(c)

The Board assumes that, unless the

contrary is indicated, the former is the case,

since some of the

entries are clearly alternatives which would not be placed in

sequence.

131—77

---

10

Asbestos appears to be

a contrary example. BAT is “2,3,8” or

“coagulation/filtration, direct and diatomite filtration,

corrosion control”

(“C/F,

DDF,

CC”).

It is unlikely that USEPA

means

to

require

“coagulation/filtration”

followed

by “direct and

diatomite filtration”.

However, corrosion control could be used

in conjunction with either of the other two.

Apparently USEPA

means that corrosion control

(“CC”) would be required only where

corrosion has been found,

in which case it would be required

along with “C/F”

or “DDF”.

The others appear to be alternatives.

The Board has modified these provisions to actually say this, but

so1icit~comment.

Monitoring Provisions Addressing Several MCLs

The USEPA rules address monitoring in blocks of related

contaminants.

For example,

40 CFR 141.23(c)(7)

611.603(g)

imposes monitoring for six inorganic contaminants.

It reads:

Systems which exceed the maximum contaminant levels as

calculated in

S 141.23(i) of this section shall monitor

quarterly beginning in the next quarter after the

violation occurred.

This is ambiguous in the context of a subsection which

regulates six contaminants.

Taken literally,

it would require a

violation of all six NCLs before quarterly monitoring kicked in.

Although this interpretation is obviously wrong,

it is still far

from clear what this provision means.

It could be read either as

requiring monitoring just for the contaminant whose MCL was,

exceeded, or monitoring for all six,

or, for that matter, all

regulated contamina~its.

The Board has generally construed these provisions as

triggering stepped—up monitoring if any one contaminant exceeds

the NCL (or other threshold).

The additional monitoring is

required only of the parameter for which the MCL was exceeded.

In actual practice the Agency may analyze for more

parameters;

here, however, what is required is being addressed.

The Board requests comment, including whether we need to address

additional contaminants which may be linked to the contaminant

for which the level was exceeded.

Optional Additional Sampling

Several provisions appear to require State approval before a

supplier can take samples beyond the minimum required.

The Board

does not see any reason why PWS5 in Illinois should need prior

approval before conducting additional monitoring, since the

13 1—78

---

11

Agency largely oversees the sampling

and

testing

itself.1

The

Board has proposed to adopt a rule allowing additional samples

without prior authorization, but requiring that all results be

reported to the Agency.2

Structural Problems:

Blocking of Related Text

40 CFR 141 has a small

number

of

very

large

Sections.

It

would

be

much

easier

to

follow

if USEPA would break these

Sections up into smaller Sections.

It would then be possible to

use the STable of Contents to find the tbpic sought, and the main

text would not occur so far down in the outline.

The Board

followed this format when adopting Part 611 in R88—26, such that

Board Sections generally correspond with USEPA~sfirst level of

subsections.

As was discussed in the R88—26 Opinion, pages

17—21,

although the levels of subdivision have been promoted, the

structure of Part 611 follows the USEPA rules very closely.

One

of the Board’s goals in adopting these rules is to preserve as

much of the structure of the USEPA rules as possible,

in part for

ease, in comparing the texts.

The Phase II rules have a number of ambiguities which result

from the failure to block together related text.

Most of text of

the Phase II rules is at the second level of subdivision.

For

example, 40 CFR 141.24(f)

611.646

consists of 21 numbered

subparagraphs

(with some subdivision beyond that).

The rules

actually include related blocks of subsections, such as:

(f) (1)

—

(3), dealing with sampling points;

and,

(f)(7)

—

(10),

dealing

with “waivers”.

One problem with this structure is that it is

very difficult to decide whether, for example,

(f) (8) through

(10)

are setting conditions for the (f)(7)

“waiver”,

or are a

part of another type of “waiver”.

Moreover, it is not clear

whether

(f) (11)

is

a continuation of the “waiver” provisions

(imposing quarterly monitoring on people who exceed “waiver”

conditions), or a return of the main subsection (imposing

quarterly monitoring whether a “waiver” has been granted or not).

These provisions would be much easier to read if the Board

were to block them together under a subheading.

For example,

1There is a related provision in existing Section

611.. 491

which allows suppliers to run control tests in uncertified

laboratories.

The tests in this Section differ in that they

might be done exactly like the required monitoring.

2As is discussed above, most analyses are conducted in

Agency labs.

This authorization to suppliers to conduct

additional monitoring should not be construed as allowing them to

force the Agency to analyze the samples.

13

1—79

---

12

(f)

(1)

-

(3)

could

become

(f)

(1) (A)

-

(C).

However, this

approach

would

destroy

the

simple

correspondence

between

‘the

Board and USEPA rules.

The Board has therefore not generally

done this,

except where other problems have forced a

restructuring of the rules.

Where

the Board has retained the USEPA structure, the Board

has used other devices to clearly indicate the apparent blocking

of these parallel subsections.

The main devices are the addition

of subsection headings, and explicit cross references.

Structural Problems:

Awkward Arrangement

Much of the Phase II rules consists of specialized

procedures for adjusting monitoring provisions,

for example,

40

CFR 141.23(c) (2)

—

(6)

611.603(b)

et seq.)

One problem with

this series of subsections is its scrambled order:

Application,

Conditions, Standard for action, Standard for conditions,

Procedures, More about the Application and Revision.

This would

be much easier to use if it were in the chronological order

in

which the provisions would ordinarily arise in a proceeding:

Application, Procedures,

Standard for action, Standard for

conditions,

Conditions,

and Revision.

The Board has proposed to

rearrange these provisions.

The proposed language appears below.

Unless there are other problems,

or unless the USEPA rule is

very confusing,

the Board has just left the scrambled order

alone.

However,

in other cases the Board has rearranged these

procedural provisions into a simpler order.

In some cases this

is done by preserving the USEPA subsection structure, but moving

the provisions’ within that structure into a better order.

In

other cases,

the Board has gone on to completely reorganize the

subsection,

along the lines discussed above.

In either event,

this destroys the simple correspondence between Board and USEPA

subsection lettering.

Where this has happened, the Board has

added “Board Notes” to clearly mark the text, and to alert

readers that provisions have been rearranged or restructured.

Structural Problems:

Misplaced Provisions

DELETION OF SAMPLING ERRORS

Two provisions are apparently misplaced at multiple points.

The first authorizes the State to “delete the results of obvious

sampling errors”

for

example,

40 CFR 141.23(f)(2)

611.606(b):

If a

...

confirmation sample is taken for any

contaminant, then the results of the initial and

confirmation sample shall be averaged.

The resulting

average shall be used to determine the system’s

compliance...

StAtes

have the discretion to delete

results of obvious sampling

errors.

131—80

---

13

Read in isolation, this language seems to authorize the

deletion of any “obvious sampling errors”.

As such,

it would be

seriously misplaced.

Read in the context of the rule on confirmation samples, the

most obvious interpretation would be that this authorizes only

the deletion of the confirmation sample.

However, deletion of

the confirmation sample would seem to go against the whole idea

of taking a confirmation sample.

Th~Board suggests that this language authorizes only the

deletion of the original sample,

based on the results of the

confirmation sample.

The Board has reworded this provision so as

to actually say this.

For example:

The Agency shall delete the original sample if it

determines that a sampling error occurred,

in which

case the confirmation sample will replace the original

sample.

So construed, the provision winds up correctly located with

the confirmation sample provisions.

The Board solicits comment

as to whether this is the correct interpretation,

and as to

whether this is the only sample deletion mechanism, or whether

there

is another genera.

.mechanism which we have not identifled.

NOTICE TO PORTION OF PWS

The second example of an apparently misplaced provision

usually appears right next to the sample deletion requirement

for

example,

in 611.606(c).

This provides for notice to only a

portion of a separable system.

It should cross reference the

notice requirements of 40 CFR 141.32,

instead of stating a new

notice requirement.

Furthermore,

it needs to draw on the general

rules

in 40 CFR 141.29 for the decision as to whether the system

is separable.

The Board has generally proposed to insert cross

references,

and solicits comment.

Unnecessary Special Rules

The Phase II rules include a number of “special rules” which

appear to say the same thing as the general rule applied to the

special case.

For

example,

“Everybody has to take four samples.

New sources have to take four samples.”

These are apparently

surplusage.

Every word in a rule is supposed to be construed as

having a meaning.

The only way to give these rules a meaning

is

to construe the general rule to mean something different than

131—81

---

14

what it says.3

The Board has noted many of these in the Opinion,

and either deleted the special rule, or inserted a “Board Note”

stating the result of the general rule as applied to a specific

situation.

Does the Averaging Rule Apply?

The Phase II rules include several averaging rules

associated with groups of contaminants.

Clearly the averaging

rule applies to a determination as to whether a supplier has

violated the MCLs.

Usually the USEPA rule specifically says

this.

The Board has generally followed the USEPA rule on this,

but suggests that a general rule might be preferable, instead of

repeated references.

The Board solicits comment.

On the other hand, the rules also include a large number

“trigger” provisions which require stepped—up monitoring,

notices,

etc.,

based on detection, the MCL,

or some fraction of

the ?4CL.

Sometimes the trigger references the averaging rule,

sometimes not.

The Board is generally assuming that the

averaging rule does not apply to these triggers, unless

specifically stated.

In other words,

a single sample in excess

of the MCL would trigger stepped-up monitoring.

It

is potentially ~confusingthat there are two general rules

here which are unstated, and which go inapposite directions in

very similar situations.

Unless otherwise stated, the averaging

rule applies to an MCL violation.

Unless otherwise stated, the

averaging rule does not apply to a trigger provision.

Confirmation Samples on a Case—by—Case Basis?

The Phase II rules allow the States to ‘require “confirmation

samples”.

For

example,

40 CFR 141.23(f) and Section 611.606

These rules are vague as to whether this is to be a programmatic

decision which is to be made at the time the State sets up the

program, or whether it is to be a case—by—case decision which the

State is to make each time a situation arises.

Because the USEPA

rules do not include criteria by which the State would make a

case—by—case decision, the Board has generally proposed to make

these as programmatic decisions.

‘Because there is a tradition of

requiring confirmation samples in Illinois, the Board has

generally adopted rules requiring confirmation samples in each

instance, as appropriate for the group of contaminants.

The confirmation sample provisions are worded as self-

31n the example,

“Everybody” would be construed to mean

“everybody except new sources”.

This would operate to exempt

“new sources” from all other requirements, unless. they were

specifically included.

131—82

---

15

implementing rules.

However, the Agency usually would be

analyzing the sample, and would be notifying the supplier that

the sample exceeded the MCL

(or trigger).

This notification

would usually take the form of a sample request.

Some of the USEPA confirmation sample rules allow the State

to require confirmation samples for “positive or negative

results”.

As the Board understands this,

a negative result

would indicate either that the sample was below the MCL, or below

the detection ?imit.

In either case,

in the absence of criteria

from USEPA as to when to require these, and no tradition of

requiring negative confirmation samples, the Board has not

proposed to require these,

but solicits comment.

Composite Samples

Several provisions authorize the State to allow “composite

samples”,

in which samples from several sampling points are

combined prior to analysis.

If the composite exceeds a certain

level,

each sampling point must be resampled,

if necessary., and

individually analyzed.

For

example, 40 CFR 141

•

23(a) (4),

Section 611.601).

These “composite samples” are different from the usual type

of composite sample,

in which aliquots drawn from a single sample

point at different times are mixed prior to analysis.

That type

of composite sample serves as a simpler way to obtain a time—

weighted average than analyzing individual aliquots.

The “composite samples” involved in this rulemaking involve

aliquots taken at different sampling locations.

Such a composite

sample does not necessarily correlate with the water quality at

any point,

and hence does not provide any direct information

about compliance.

To use the information,

it is necessary to

define fractions of the MCL5

(or detection levels) which,

if

exceeded,

indicate that one or more of the sampling points may

have exceeded the MCL.

If the composite sample exceeds the

specified fraction, then individual samples have to be taken at

each sampling point.

These provisions are apparently aimed at reducing analytical

costs.

Whether they succeed depends in part on how often one has

to resample.

In Illinois, where the Agency analyzes most

samples, whether composites are worth the trouble is largely an

Agency management decision.

As the Board understands it,

the’

Agency generally opposes this type of compositing.

(PC 2)

A similar provision exists in 40 CFR 141.24(g) (7)

(611.648(g), renumbered to 611.647(g).

As was discussed on p.

95 in the R88-26 Opinion, the Agency opposed adoption of that

provision.

However, the Board construed that provision as a

“pattern rule”, which the Board was required to adopt.

The Board

13 1—83

---

16

rule allows the Agency to decide whether to allow composites on a

case—by—case basis.

On the other hand, the provisions involved in this

rulemaking are clearly programmatic directives, and they are

totally optional.

The Board has therefore not propqsed to adopt

the composite sample rules at this time.

The Board solicits

comment,

especially from

the Agency,

as

to what its position is

as to whether the Board ought to adopt the composite sample

rules.

An option would be to adopt these rules,

but allow the

Agency to act on a case—by—case basis.

The main drawback to

this

is that it would add considerable length and complexity to the

rules, which would accomplish nothing if the Agency is not going

to use the compositing provisions anyway.

Previous Data

Several provisions allow the use of “previous data” to meet

initial monitoring requirements or to get a “waiver” from a

monitoring requirement.

For example,

40 CFR 141.23(b) (10),

611.602(j):

If monitoring

data collected after January

1,

1990 are

generally consistent with the requirements of Section

141.23 (b), then the State may allow systems to use that

data to satisfy the monitoring requirement for the

initial compliance period beginning January

1,

1993.

There is no problem in principle to allowing such previous

data.

However, these provisions seem to include a galaxy of

editorial problems.

Where these problems can be resolved, the

Board has allowed the prior data.

Where no simple solution

presents itself, the Board has proposed not to allow the prior

data,

but has solicited comment as to what the USEPA rule means~

One basic question is the standard which the prior data must

meet.

Usually this is something like “generally consistent” with

the monitoring requirements.

This could be construed as “more or

less” consistent with the monitoring requirements.

The Board

does not believe this is tJSEPA’s intent.

Rather, prior data

should be accepted only if it is fully consistent with the new

requirements, other than having been taken prior to the date on

which the new monitoring was required.

Accordingly, the Board

has edited this to allow prior data which is “consistent” with

the new requirements.

Some of the past data provisions could be read to mean

“generally consistent with monitoring requirements in existence

when the data was collected.”

The Board does not accept this

interpretation.

The monitoring needs to be consistent with the

13 1—84

---

17

new rules.

Another question has to do with the future use of “prior

data”.

As written, some provisions appear to allow suppliers to

use “generally consistent” monitoring data even after the new

monitoring requirements become effective.

The Board does not

accept this interpretation either.

After the federal effective

date,

all monitoring must be fully in compliance.

The Board

solicits comment on this.

Af’?er USEPA adopts new rules, the 7~gencysometimes requests

samples based on the new USEPA rules, but prior to the USEPA

effective date,

and prior to Board adoption.

The Board has

generally proposed to limit prior data to that collected pursuant

to such sample requests.

An example is in Section 611.602(j):

Data collected after January 30,

1991, but prior to the

effective date of this Section, pursuant to Agency

sample request letters, are deemed to meet the

requirements of this Section,

if the data are

consistent with 40 CFR 141.23.

Although this solves the problems noted above,

it is a more

restrictive limitation on prior data than appears to be required

by the USEPA rule.

The Board solicits comment as to whether

there are other types of past data which ought to be allowed,

including specific monitoring programs which may have been

undertaken in the past.

The Board requests specific language

identifying any such data.

Definitions with Ambiguous Scope

“Detected”

The Phase II rules have a few definitions which may be

stated as applying more broadly than USEPA intended.

For

example,

40 CFR 141.24(f) (7) and

(10) include parenthetical

definitions of “detected”, which are stated as being “for

purposes of this section”.

However,

it is likely that USEPA

meant the terms to be defined only for subsection

(f), since

parallel provisions exist in the other subsections.

The Board

has dealt with these on a case—by—case basis,

in some instances

following the USEPA text, and in others following the apparent

intent.

These are individually discussed below, with a r&quest

for comment.

Failure to use Terms as Defined

The Phase II rules have a problem with failure to use terms

as defined in 40 CFR 141.2.

This is a continuation of a long-

standing problem with Part 141.

The Board has generally

corrected these to express the apparent intent, using defined

terms.

131—85

---

18

“PWS” and “Supplier”

As was discussed in R88—26

(Opinion, p.

39),

40

CFR

141.2

defines “PWS”, and related terms, as the physical plant, and

“supplier of water” as the owner or operator of a PWS.

However,

this term is almost totally unused in the rules.

Rather, USEPA

uses “PWS”,

“CWS” or “system” to mean the owner or operator.

In

R88—26, the Board shortened “supplier of water” to “supplier”,

and generally edited the text to use this term,

and will follow

that convention here.

In some situations USEPA appears to be using limited types

of PWS,

such as “CWS”, so as to limit the applicability of

a

provision.

In such cases the Board has used “CWS supplier” to

indicate the special type of owner or operator.

In some Sections

the “CWS”

is dropped after an initial applicability statement

when it is sufficiently clear that the subsequent use of the

broader term “supplier” does not expand the scope.

“Compliance Period” and “Cycle”

USEPA has defined two new, important terms in this

rulemaking.

These are “compliance period” and “compliance

cycle”.

These are specifically defined in 40 CFR 141.2, ‘both as

to their length and starting dates.

However, in the rules, USEPA

has almost always attached phrases such as “three—year” or

“starting on

(date)” to these terms.

At many places these

parenthetical redefinitions could be interpreted as setting up

new types of compliance periods and cycles which would be

inconsistent with the basic scheme set out in the definitions.

The Board construes these as parentheticals merely intended to

explain the new terms to the readers,

and, as such, has removed

them.

The Board assumes that USEPA intends all monitoring to be

keyed into the compliance period/compliance cycle system set up

in 40 CFR 141.2.

Unless the contrary is clearly indicated,

“waivers”, etc. will be issued for even periods or cycles.

For

example consider a rule which allows a “waiver” from a monitoring

requirement for a compliance period.

A supplier may apply for

the adjustment prior to the beginning of the compliance period.

The Agency may also grant the adjustment prior to the beginning

of the period.

The adjustment will govern monitoring for the

parameters in question during the period, and will expire at the

end of the period.

Normal monitoring will then be reinstituted,

unless the Agency has granted a new adjustment.

Undefined Terms

USEPA uses a large number of undefined terms.

These include

the following:

131—86

---

19

Combined system

Distribution system

Ground water system

New sources

Point of entry

Repeat monitoring frequency

Rounds of monitoring

Surface water system

System

“System”

The first problem area is the undefined term “system”.

This

is related to the above discussion concerning the use of “PWS” to

mean “supplier of water”.

In most cases, the Board has changed

“system” to “supplier”.

In other situations, USEPA apparently uses “system” to mean

“PWS,

CWS, NTNCWS or transient,

non—CWS, as appropriate”, where

the types of

CWS

represent limited subsets of “PWS”.

.

The Board

has generally replaced these with the most general term,

“PWS”,

with the understanding that this is not intended to expand the

applicability, which should be set out specifically somewhere in

any rule with limited applicability.

“GWS” and “SWS”

The second problem area

is the undefined terms “ground water

system”,

“surface water system” and “combined system”.

These

terms are not only undefined, but may have a shifting meaning in

various parts of the rules.

Usually a rule provides separately

for ground and surface systems, with a note placing the combined

systems into one category or the other, depending on the

parameter.

This is very confusing.

The Board has therefore

defined “GWS”,

“SWS” and “mixed system” as Section or Subpart

definitions, where needed.

The rules have been edited to

specifically state whether they apply to GWSs,

SWSs or mixed

systems.’ The Board solicits comment.

In connection with these definitions,

it became apparent

that the existing definition of “surface water” does not include

“groundwater under the direct influence of surface water”, an

J.mportant new concept recently added to the USEPA rules.

This is

defined in Section 611.212 in the Board rules,

and discussed on

p.

42 in the R88-26 Opinion.

It is apparent that USEPA intends

to regulate systems drawing “groundwater under the direct

influence of surface water” as SWS5.

One way to accomplish this

would be to add it to the definition of “surface water”.

This

would, however, create a circular definition,

since the term

“surface water” is used in defining “groundwater under the direct

influence of surface water”.

The Board has therefore proposed to

add the concept to the definition of “SWS”.

131—87

---

20

“Point of Entry” and “Distribution System”

These are two important terms which are used to define the

sampling point locations.

As is discussed below, in connection

with sampling points, the Board has proposed definitions of these

terms.

Other

Terms

Thç

remaining

terms,

“rounds

of

monitoring”,

“new

sources”

and

“repeat monitoring frequency”,

in some cases appear to be

defined by the provisions in which they appear.

In several

instances the Board has moved the term out of what appears to be

the defining language, and placed it into a heading, so that a

local definition is created.

In other cases, the Board has just

requested comment as to the meaning.

Timing of Provisions (Resampling Times

There are many provisions which require resampling or

notification within certain time frames.

For example,

40 CFR

l41.23(f)(2), 611.606(b)):

The

State may require that one additional sample be

collected as soon as possible after the initial sample

was taken (but not to exceed two weeks)

at the same

sampling point.

•

This is ambiguous as to when the time frame starts.

In

Illinois, the Agency analyzes most samples.

Therefore,

at least

for these suppliers, the trigger must be notification of the

result.

Indeed, where resampling is required, the trigger would

be an Agency request for a new sample.

For suppliers which use private labs, or which analyze their

own samples, the USEPA intent is apparently that the resampling

should be given within a certain time after the supplier learns

the result.

This is the formulation which the Board has

followed.

Some of the USEPA rules are worded so that they appear to be

triggered by the original sampling.

One concern may be that too

much time would elapse while the samples were waiting to be

analyzed.

However, the holding time for analysis is specified

separately.

The Board has not construed these provisions as

indirectly setting a shorter holding time.

An example of the Board’s resolution of these types of

problems is in Section 611.606(b):

T)he

supplier shall take a confirmation sample within

24 hours after the supplier’s receipt of notification

13 1—88

---

21

of the analytical results of the first sample.

Sampling Point Rules

The Phase II rules contain several sets of provisions which

specify the locations at which samples must be taken.

There are

major differences in the wording which have no obvious

substantive significance.

Moreover, each set appears to be

either internally contradictory,

or, at the very least, their

interrelationsk~ipis unclear.

The organic sampling point rules

in 40 C~’R141.24(f) (1)

—

(3)

(611.646(a)

—

(C)

present special

problems of construction.

The Board will set forth a complete

discussion of this here,

as an example, and refer back to it in

thc~discussion of the others, which have fewer problems.

USEPA SAMPLING POINT RULES

40 CFR l41.24(f)(l)

—

(3) govern organic sampling points.

They read as follows:

(1)

Groundwater systems shall take a minimum of

one sample at every entry point to the

distribution system which is representative

of each well after treatment (hereafter

called a sampling point).

If conditions

warrant, the State may designate additional

sampling points within the distribution

system or at the consumer’s tap which more

accurately determines consumer exposure.

Each sample must be taken at the same

sampling point unless conditions make another

sampling point more representative of each

source or treatment plant.

(2)

Surface water systems shall take a minimum of

one sample at points in the distribution

system that are representative of each source

or at each entry point to the distribution

system after treatment (hereafter called a

sampling point).

If conditions warrant, the

State may designate additional sampling

points within the distribution system or at

the consumer’s tap which more accurately

determines consumer exposure.

Each sample

must be taken at the same sampling point

unless conditions make another sampling point

more representative of each source, treatment

plant, or within the distribution system.

Note:

For purposes of this paragraph,

surface water systems include systems with

a

combination of surface and ground sources.

131—89

---

22

(3)

If the system draws water from more than one

source and the sources are combined before

distribution, the system must sample at an

entry point to the distribution system during

periods of normal operating conditions

(i.e.,

when water representative of all sources is

being used).

STRUCTURE

The first problem concerns the structure of the rule.

There

are two ways the rule could be written:

one could define

“sampling point”, and then require samples at the “sampling

point”;

or one could just require samples at certain points.

However, requiring samples at a certain point,

and then defining

that point as the “sampling point”, places the definition after

the principal usage in the rules.

Furthermore,

“sampling point”

is redefined in the next paragraph,

creating fundamental

confusion when the term is subsequently used.

As

is discussed

below,

the Board has proposed to replace this with a simple rule

requiring samples at certain points, but solicits comment.

The next problem concerns the large block of repeated text

in the second and third sentences of

(f) (1) and

(2).

The Board

has proposed to consolidate these, but solicits comment.

LACK OF DEFINITIONS

The next problem concerns the need for definitions of “entry

point” and “distribution system”.

The Board has proposed

definitions for these terms.

In particular, as the Board

understands the term,

the “entry point”

is a point downstream

from the final treatment operation,

but upstream of the first

user,

and upstream of any mixing with other water.

The next problem concerns the need for a definition of

“groundwater system”, and “surface water system”, coupled with

the parenthetical inclusion of mixed systems in the latter

category.

The Board has proposed definitions for “GWS”,

“SWS”,

and “mixed system”, and provided rules governing “GWSs” on the

one hand,

and “SWSs” and “mixed systems” on the other.

This is

intended to avoid confusibn after the proposed radium rules ‘are

adopted, since the latter regulate’ mixed systems as GWSs.

The next problem is the use of the undefined term “system”

to mean “PWS” or “supplier”,

as is discussed in general above.

SAMPLING POINT FOR GWS5

The next problem concerns the meaning of the operative

language for the sampling points for GWS5 in

(f) (1):

131—90

---

23

A

minimum of one sample at every entry point to the

distribution system which is representative of each

well after treatment...

As the Board interprets this rule,

it would work in the

following example.

Consider a PWS with two wells, each of which

contributed water to its

own

treatment plant, each of which had

its own “entry point”.

The supplier would have to take two

samples, each representative of one well after treatment.

However, consider a system consisting of three wells feeding raw

water

ii4to a single treatment plant and~a single entry point.

How could one take a sample at the entry point which would be

representative of “each” well “after treatment”?

As the USEPA

rule is worded, one would have to take three samples at different

times, each with only one well operating.

However, this would

contradict the “normal operating conditions” language in

(f) (3),

which is discussed below, as well as the basic concept of one

sample at each sampling point.

The Board suggests that the specific language concerning

“normal operating conditions” in

(f) (3)

is the real USEPA rule

governing representativeness, and that the “representative of

each well” language in

(f) (1)

is surplusage,

stating the result

of

(f) (3)

as applied to a specific situation for the guidance of

the reader.

The requirement of

(f) (1)

is therefore simply to

take a sample “at each entry point”.

The Board has proposed to

adopt a rule along these lines, but solicits comment.

SAMPLING POINT FOR SWS5

The next problem concerns the grammar in the operative

language concerning surface systems in

(f) (2):

(A

minimum of one sample at points in the distribution

system that are representative of each source or at

each entry point to the distribution system after

treatment...

This appears to have a misplaced modifier.

The Board

assumes this should read:

A)

minimum of one sample at points in the distributibn

system that are representative of each source after

treatment or at each entry point to the distribution

system...

At a deeper level, however, the entire “representative”

clause appears to be misplaced.

The samples taken at the entry

point need to also be “representative”.

So construed, the SWS

rule suffers from the same problems as the language for wells.

Suppose there are three reservoirs feeding into a single

treatment plant.

How could one take a sample in the distribution

131—91

---

24

system

(or at the entry point) which would be representative of

“each” source after treatment?

The Board has proposed

to

simplify the language, so that the points would be representative

of the “sources” together.

Furthermore, the representativeness

concept needs to be controlled by the language in

(f) (3).

The

Board requests comment.

ONE OR

TWO

ADJUSTMENT

PROCEDURES?

The next problem concerns the relationship among sentences

1,

2 and 3 in

(f) (1) and

(2).

Are

sentences 2 and 3 to be read

together as establishing a single procedure for modifying the

point in sentence

1, or do they represent two different

procedures?

In other words,

do sentences

2 and 3 contemplate a

single procedure for modifying the sampling point to a new point

“which more accurately determines consumer exposure” and is “more

representative of each source or treatment plant”?

Or, does

sentence

2 authorize an additional point “which more accurately

determines consumer exposure”, and sentence 3 a point which is

“more representative of each source or treatment plant”?

The main argument against the “two procedure” interpretation

is that, while sentence

2 specifies that “the State may

designate”, no such language appears in sentence 3.

This makes

it look like two conditions for one determination.

However,

in

practice, the conditions of sentences 2 and

3 are such that it

would be virtually impossible to simultaneously meet both

conditions.

Generally, to find a point which “more accurately

determines consumer exposure”, one would have to move downstream,

closer to the consumers.

However, to find a point which is “more

representative’of each source or treatment plant”, one would have

to move upstream, toward the source.

The Board has therefore

construed these as two different procedures, but solicits

comment.

PROCEDURES FOR MODIFICATION OF ADDITIONAL SAMPLING POINTS?

The next problem concerns the following clause in sentence 3

in

(f)(1)

and

(2):

Each sample must be taken at the same sampling point

unless...

Read in isolation, this seems to say that all the samples

taken by the operator have to be taken at one point.

This is

obviously not what USEPA means.

The rest of the.rüle is talking

about multiple sampling points.

When this sentence says “the same sampling point”,

it

appears to refer to “the” sampling point designated in sentence

2.

In other words, sentence

3 would be a procedure for modifying

the point established in sentence 2.

However,

it seems to make

131—92

---

25

no sense at all to have a rule which moves from the generally

required point,

A, to point B,

in order to “more accurately

determine consumer exposure”, and then move that point to C, to

make it “more representative”.4

We construe this language as likely meaning that sentence 3

is referring to the generally required sampling point in sentence

1.

This ‘is consistent with the “two procedure” interpretation

above.

The Board requests comment.

“MORE REPRESENTATIVE” SAMPLING POINTS

The next problem concerns the “more representative” standard

itself.

As construed above,

sentence 3 of

(f) (1) and

(2)

is a

separate procedure which allows the supplier to move the sampling

point to an alternative point which is “more representative of

each source, treatment plant,

or within the distribution system”.

As is discussed below, the “representativeness” concept needs to

be collected into a single provision governed by

(f) (3).

This presents a question then as to what the “more

representative” procedure of sentence 3 is saying.

One

possibility is that it is just saying:

“if you didn’t start

sampling at the ‘representative’ point in the first place, move.

to the ‘representative’, point now”.

However, this type of rule

is not necessary, since this is always understood.

If this is

all the provision means,

it should be deleted as surplusage.

The other possibility, which the Board suggests is correct,

is that sentence

3

is allowing operators to adjust sampling

points so as to make it easier or cheaper for them to take the

samples.

However, the “more representative” terminology may not

£it this procedure.

For example, consider the simplest case,

a

single well,

feeding into a treatment plant which feeds into a

single main.

(f)(1) would require sampling at the “entry point”.

Suppose the “entry point” is inaccessible.

The only way the

supplier could get an alternative point would be to show that

some downstream point is “more” representative of the source.

How would this be possible?

It seems that there is a need for a

rule which would allow the supplier to show that a downstream

point is equally “representative”.

The Board has proposed to

retain the “more representative” language, but solicits comment

•~sto whether “equally representative” points ought to be

allowed.

4when an agency modifies a decision,

it is usually applying

the same criterion to new facts.

As this rule is written,

it

appears to require modification based on wholly different

criteria.

Indeed, as is discussed above, the criteria for

sentence

3 seem to be the opposite of sentence 2.

131—93

---

26

DEFINITION OF “REPRESENTATIVE”

The next problem concerns the language of

(f) (3), which the

Board takes to be a definition of “representative”:

If the system draws water from more than one source and

the sources are combined before distribution, the

system must sample

at

an

entry

point to the

distribution system during periods of normal operating

conditions

(i.e., when water representative of all

sources is being used).

As discussed above,

there is language in

(f) (2) which

authorizes sampling within the distribution system.

How does the

“entry point” language in paragraph

(3) relate to paragraph

(2)?

There are four possible ways to read this,language.

The first is

that it means to override all the language in the foregoing

paragraphs, so as to require all sampling to be at “an entry

point”.

This is unlikely, since

(f)(2) goes to such lengths to

specifically authorize the distribution system samples.

A second interpretation is that the condition which follows

applies only to sampling “at an entry point”.

In other words,

it

would be acceptable to sample in the distribution system during

periods of abnormal operations, when all sources were not being

used.

This doesn’t appear to make any sense either.

A third interpretation is that,

if a system draws water from

more than one source,

“distribution system” samples are

prohibited,

and samples have to be taken at an “entry point”

during “periods of normal operations”.

However, there are at

least two problems with this language.

For one thing,

this

would make

(f) (3)

strictly subsidiary to

(f) (2), contrary to the

overall structure of the USEPA rule.

Moreover, this would mean

that the “normal operating conditions” language would not apply

to entry point samples for wells under

(f) (1).

The Board has

rejected the third interpretation, but solicits comment.

We suggest that the most likely interpretation of “at an

entry point” is that this is mere surplusage,

stating the result

in a special case for the aid of the reader.

As construed by the

Board,

this sentence is defining “representative”, and it applies

whether sampling is at an entry point or in the distribution

system.

The Board has therefore proposed to reword this

provision as a definition of “representative”, but solicits

comment.

The next problem concerns the standard of

(f) (3)

itself:

T)he

system must sample

...

during periods of normal

operating conditions

(i.e., when water representative

of all sources is being used).

131—94

---

27

Suppose a system has wells which it uses only during the

summer to meet peak water demand.

Suppose these wells have very

different contaminant levels ‘than a reservoir which is ordinarily

used in the fall, winter and spring.

One could interpret this

language to

mean that the system could not sample except in the

summer.

The Board has rejected this interpretation, which would

be inconsistent with other provisions which specifically require

quarterly samples.

A second ±nterpretationis that

(f) (3) would require the

supplie~to bring the summer-time wells into operation at other

times of the year just for the purpose of taking the samples.

Returning to the prior example, suppose the reservoir had high

nitrate levels, and the summer—time wells had low levels.

This

interpretation would require sampling at times when the nitrate

level was diluted by well water which would not ordinarily be

present at that time of the year.

In addition to being

burdensome to the supplier (to turn on wells just to sample),

this would produce samples which would not be “representative”,

in the usual sense of the word,

of the water being delivered to

the customers at that time of the year.

A much more

“representative” picture would be obtained by averaging four

quarterly samples, or by taking an annual sample during the

“highest quarter”, under normal seasonal operating conditions.

The Board has therefore rejected this interpretation.

The Board

solicits comment, especially from USEPA, as to whether it is

correct in rejecting this interpretation.

The Board suggests that the correct interpretation of

(f) (3)

is

that it means “during periods of normal seasonal operations”,

but requests comment.

The concept of “representative of all

sources” appears in the general definition of “representative”

in

the proposed language.

COMPLETENESS OF THE USEPA RULE

The final problem concerns what is missing from the USEPA

rule.

The rule does not appear to address how many sampling

points are needed for a given system.

At a minimum, shouldn’t

the rule say that the set of sampling points needs to be

representative of the entire PWS?

Is some of the language we

find confusing,

as discussed above, trying to say this?

The

Board requests comment.

Another missing component is that contaminants may be

expected to decrease (or increase)

in the distribution system.

For example, an organic contaminant could be converted to a

different contaminant by the chlorine residual in the

distribution system.

The USEPA rule does not appear to say that

samples in the distribution system should be taken at points

where the maxima are expected.

The Board solicits comment on

this.

131—95

---

28

PROPOSED

SAMPLING

POINT RULES FOR ORGANIC CONTAMINANTS

The Board has proposed to resolve the above problems with

the following language, which appears as Section 611.646,

discussed below:

a)

Definitions.

As used in this Section:

“Distribution system” includes all points

downstream of an “entry point”.

“Entry point” means a point just downstream

of the final treatment operation, but

upstream of the first user and upstream of

any mixing with other water.

If raw water is

used without treatment, the “entry point”

is

the raw water source.

If a PWS receives

treated water from another PWS, the “entry

point” is a point just downstream of the

other PWS, but upstream of the first user on

the PWS, and upstream of any mixing with

other water.

“GWS” means “groundwater system”,

a PWS which

uses only’ groundwater sources.

“Mixed system” means a PWS which uses both

groundwater and surface water sources.

“Representative” means that a sample is

expected to reflect the properties of water

averaged over the period of time and portion

of the PWS to be sampled.

To be

representative, a sample must be taken under

normal seasonal operating conditions.

“Source” means a well, reservoir or other

source of raw water.

“SWS” means “surface water system”,

a PWS

which uses only surface water sources.

“Treatment” means any process:

which changes

the physical or chemical properties of water;

which is under the control of the supplier;

and, which is not a “point of use” or “point

of entry treatment device” as defined in

Section 611.101.

“Treatment”

includes, but

is not limited to:

aeration, coagulation,

sedimentation, ‘filtration, activated carbon,

chlorination and fluoridation.

131—96

---

29

b)

Required sampling.

Each supplier shall take a

minimum of one sample at each sampling point at

the times required in Section 611.646(u).

Each

sampling point must be “representative.”

The

total number of sampling points must be

representative of the water.delivered to users

throughout the system.

c)

Sampling points.

1)

Sampling points for

GWSs’.

Unless otherwise

provided by SEP, the following are the

sampling points for GWSs:

Each entry point.

2)

Sampling points for SWSs and mixed systems.

Unless otherwise provided by SEP, the

following are sampling points for SWSs and

mixed systems:

A)

Each entry point~ or

B)

Points in the distribution system.

3)

Additional sampling points.

The Agency

shall,

by’SEP, designate additional sampling

points in the distribution system or at the

consumer’s tap if it determines that such

samples are necessary to more accurately

determine consumer exposure.

4)

Alternative sampling points.

The Agency

shall,

by SEP, approve alternate sampling

points

if the supplier demonstrates that the

points are more representative than the

generally required point.

Programmatic or Case—by—case Decisions?

Confirmation

Samples

The Phase II rules include many provisions which direct or

allow the State to make a decision.

For example:

“The State may

require confirmation samples”.

Most of these are ambiguou~as to

whether USEPA expects the State to make a decision at the time it

sets up the program,

or, alternatively, on a case—by—case basis

as the situation arises in the course’ of administering the

program.

If the USEPA rule contemplates a programmatic decision,

then the Board must generally make the decision (whether to

require confirmation samples) at the time it adopts the rules.

For example, the Board would adopt a rule providing that “The

supplier shall take a confirmation sample if any sample exceeds

the MCL”.

(PC

2)

On the other hand,

if USEPA contemplates a

case—by-case decision, the Board needs to adopt a rule which will

131—97

---

30

usually specify that the Agency is act on a case—by—case basis.

For example, the Board rule might provide:

“The Agency shall

require a confirmation sample if...”

Many of the USEPA provisions include a criterion for State

action which includes factors which are obviously appropriate for

case—by—case decision in the course of administering the program.

These the Board has rendered into State law as a case—by—case

decision.

These are usually to be made by the Agency.

In a few

cases they are to be made by the Board.

A general discussion

appears’below concerning how the Board decides whether a given

decision is to be made by the Board or Agency.

Since the Board is the agency with rulemaking authority over

this program, programmatic decisions are intrinsically to be made

by the Board.

In other words, the Board makes the decision in

this Docket at the time it adopts the rules.

Few of the USEPA provisions are expressly calling for a

programmatic decision.

Rather, the Board has inferred the

programmatic nature of the decision from the absence of

a

criterion which could be applied on a case—by—case basis.,

Indeed,

in most of these provisions, there is no criterion at

all.

One weakness in this analysis is that some of these USEPA

provisions may actually be calling for a case—by—case decision,

but have omitted the criteria for decision from the rule.

If

coinmenters want these to be treated as case—by—case decisions,

they will have to give a criterion for the decision.

The Board

solicits comment.

Programmatic Directives

OPTIONAL PROGRAM COMPONENTS

Most of the programmatic directives simply say “The State

may...” or “The State shall.

..“

do something, with no criteria

for the action.

Where the USEPA rule says “may”, with no

criteria, the Board has construed this as an complete elective

from the USEPA perspective.

Sections 7.2 and 17.5 of the Act require the Board to adopt

“identical in substance” rules, which are defined as rules “which

require the same actions

...

by the same group of affected

persons as would federal regulations if USEPA administered the

subject program in Illinois.”

The status of the elective

provisions is ambiguous, since the USEPA rules are unclear as to

whether USEPA would require this program component in a USEPA-

administered program.

There are a number of factors which the

Board considers in deciding whether the elective provisions are

necessary and appropriate for the Illinois program.

One factor

131—98

---

31

is whether the provision is necessary to the program,

in the

sense that the program would be incomplete and unworkable without

the component.

Another factor is whether there is a tradition of

similar requirements in previous Board rules.

ABSENCE OF PATTERN RULES

Many of the USEPA programmatic directives also provide a

“pattern” for the Board to follow.

In some cases, however, the

rule th~State is to adopt is “prescribed” in more general terms.

Section 7.2(a) (3) authorizes the Board to adopt

such. regulations

“to the extent possible consistent with other relevant USEPA

regulations and existing State law”.

In most of these cases,

the

content of the State rule can be formed by rearranging the

prescription into a pattern.

(For example, see 40 CFR

141.23(b) (9), Section 611.602(i).

However, in a few cases the

Board has to request comment as to the appropriate text of the

prescribed rule.

Subjective Criteria for State Action

When the USEPA rule is calling for the State to adopt a rule

providing for a case—by—case decision, there generally needs to

be a criterion for the State action.

The criteria specified in

the USEPA rules have a~lotof problems.

‘These are discussed in

general in the following Sections.

Specific criteria which are

repeated in the rules are discussed below the general problems.

The USEPA rules include a few subjective criteria, such as

“If the State director believes X”, or “If the system believes

X”.

These have generally been converted to objective standards.

A closely related problem concerns rules which specify

personal decisions by the director of the “State agency”,

Regional Administrator or Administrator.

These have generally

been rendered as collective decisions by the appropriate agency.

The USEPA BAT rules are also worded as personal decisions by

the USEPA administrator.

These have been reworded as collective

decisions.

However, no State action is involved, since the State

will not be involved in directly specifying BAT.

Rather, the

State rule will specify BAT as determined by USEPA.

Criteria Worded as Preconditions to Filing Application

(“Vulnerability Assessment”

Among the more annoying USEPA provisions are the criteria

‘which are worded as preconditions to the filing of the

application, rather than as criteria on which the State

is to act

on the application.

An example is 40 CFR 141.23(b) (2)

611.602(b).

The provision reads:

“If the system believes it

is

not vulnerable

...,

it may apply

...

for a waiver...”

As worded,

13 1—99

---

32

if a request

is filed, the State has to determine whether the

system

truly

believed

it

was

not

vulnerable.

Whether

the

system

in fact was vulnerable is irrelevant, but the system is subject

to enforcement the State determined that the system actually

believed it was vulnerable when it filed the request.

The Board

has proposed this as an objective standard for State action.

“Consideration of Factors” Criteria

“Vulnerability

Assessment”

Some USEPA criteria for case—by—case State action are worded

as “considerations” of certain factors.

(For example,

40 CFR

14l.23(b)(3).

In some cases,

it is clear that this is just

sloppy drafting, and that there really are definite criteria on

which the State is to act.

In these situations, the Board has

made the appropriate edits to the USEPA rule.

However,

in other

situations,

it is clear that USEPA ,means for the State to

consider a set of factors, and render a result based on a

balancing of the factors, but without a hard rule linking the

result to a certain criterion.

These are generally acceptable,

and have been retained in the State rules.

Some USEPA rules have a mixture of criteria and

considerations.

These might take the form of “The State shall

grant the waiver if A, ‘Band C are true, considering X and Y”.

In

sozie instances it is likely that USEPA really means this.

In

other situations,

however, there is a linkage between the

criteria and the considerations.

For example, consideration X

might simply be a paraphrase of criterion B.

In such cases, the

Board has attempted to combine the considerations and criteria

into

a simpler rule.

Fractured Criteria

Many USEPA rules have the criteria for case—by—case decision

spread over several subsections.

For example,

subsection

(a)

might say:

“The State shall grant

a waiver if A”.

Subsection

(b) would then say:

“The State shall grant a waiver if B”.

The

Board has generally tried to group these so that the rule says:

“The State shall grant a waiver if A and B”.

However, sometimes

the criteria seem to be contradictory when they are brought

together.

In such cases, the Board has attempted to discern

USEPA’s intent, and edit the criteria so as to avoid conflict.

In such cases, however, there is always a possibility that USEPA

intends two types of “waivers”, A and B, with different criteria.

For

example,

40

CFR

141.24(f) (9) and

(10) and Section 611.646(i)

and

(j).

Repeated Criteria

Closely related to the fractured criteria are the repeated

criteria.

In manj rules, USEPA seems to repeat the same

131—100

---

33

provision several times.

In such cases, the Board has attempted

to consolidate the repeated provisions.

For one thing, repeated provisions are objectionable because

they are verbose.

Second, unless the provisions are repeated

exactly, you wind up with a loophole or a contradiction, to the

extent the repetitions do not agree exactly.

Third, rules of

construction argue against mere surplusage, opening the door to

interpretations which give meaning to each repetition, which

meaning is unLtkely to bear much resemblance to the intent.

Adequacy of Specific Criteria

The Phase II rules include a number of specific criteria

which occur numerous times.

These are discussed in the following

sections of this Opinion.

Criteria which occur less frequently

are discussed in the section—by—section portion below.

“RELIABLY

AND

CONSISTENTLY” BELOW

THE

MCL

Many USEPA provisions allow the State to reduce the

monitoring frequency if “the system is reliably and consistently

below the MCL”.

For

example,

40 CFR 141.23(b) (9) and Section

611.602(i)).

What does “reliably and consistently” mean?

For

example, would the Agency be justified in rejecting,

as

unreliable or inconsistent, data with a wide deviation,

even

though it was below the MCL?

Could the Agency refuse to reduce

the monitoring if data showed an upward trend toward the MCL?

The Board has proposed to add the following definition,

based in part on PC 2:

“Reliably and consistently” below

a specified level for

a contaminant means that:

Levels are below the specified level;

The distribution of data is such that it is

unlikely that future individual measurements will

exceed the specified level unless the long term

average increases;

The data does not show an upward trend toward the

specified level;

and

There are no factors which show that the source is

vulnerable to the contaminant.

CATCH-2 2

Several USEPA rules have what can only be described as

“Catch—22”.

This is associated with the “reliably and

131—101

---

34

consistently”

language

above.

For

example,

40

CFR

141.23(d)

(2)

Section

611.604(b):

...the repeat monitoring frequency for ground water

systems shall be quarterly for at least one year

following any one sample in which the concentr4tion is

?50 percent of the MCL.

The State may allow a

groundwater system to reduce the sampling frequency to

annually after four consecutive quarterly samples are

reliably and consistently less than the MCL.

These provisions trigger quarterly monitoring if a single

sample equals or exceeds 50

of the MCL, but allow a return to

annual monitoring after

4 quarterly samples,

if the supplier is

“reliably and consistently below the MCL”.

Suppose a PWS takes a

sample which is 60

of the MCL.

It then goes to quarterly

sampling, which is “reliably and consistently” at 60

of’the MCL.

The State then reduces the monitoring frequency back to annually.

The PWS then takes an annual sample, which is still 60

of the

MCL.

Under the rule as worded, the supplier would then have to

reinitiate quarterly monitoring.

Such a supplier would be caught

in an infinite loop, oscillating between quarterly and annual

monitoring, with lots of paperwork between.

It is possible that USEPA has made a typo and means to allow

annual monitoring only for those who are “reliably and

consistently below

~Q1

of the MCL”.

This possibility is

unlikely, because this problem crops up several times in the

rules.

The Board solicits

comment on

this possibility, which it

has rejected for purposes of the Proposal.

The alternative interpretation, which the Board suggests is

correct,

is that USEPA intends only a single round of quarterly

monitoring for suppliers who equal or exceed 50

of the MCL.

Rather than returning to the baseline annual monitoring, the

supplier who exits quarterly monitoring would go to baseline

monitoring subject to a modified trigger:

the supplier would

return to quarterly monitoring only if subsequent monitoring

indicated a level in excess of the level at the time the

“reliably and consistently” determination was made.

Although this interpretation makes sense in real world

terms,

it is difficult to square it with the language of the

USEPA rule.

The Board has therefore proposed major edits to

effectuate this interpretation (611.604(b) (2):

B)

The Agency shall, by SEP, allow annual monitoring

at a sampling point,

if it determines that the

sampling point is reliably and consistently below

the MCL.

C)

In issuing the SEP, the Agency shall specify:

131—102

---

35

1)

The level of the contaminant upon which the

“reliably and consistently” determination was

based;

and

ii)

The level of the contaminant which,

if

exceeded in any one sample, would cause the

supplier to reinitiate quarterly monitoring.

Under the Board’s interpretation, the Agency sets a specific

trigger level which would cause the supplier to reinitiate

quarterly sampling if a single sample e’~xceededthe level.

For

example, with the MCL at 1 mg/L, the Agency might make the

“reliably and consistently” determination based on four samples

which average to 0.60 mg/L, ±0.09mg/L.

The Agency might

establish 0.70 mg/L as the specific trigger which would cause

quarterly monitoring to be reinstituted.

Since this is outside

the range of variability of the samples previously considered,

it

would be indicative that the levels have risen.

The true “Catch-22” problem only arises when the threshold

for increased monitoring is different from the level on which the

“reliably and consistently” determination is to be made.

In the

example above, the supplier enters quarterly monitoring with a

single sample in excess of 50

of the MCL, but can exit quarterly

monitoring if he establishes that levels are “reliably and

consistently” less than 100

of the MCL.

If these levels were

the same,

say 50

of the MCL, the supplier would not be caught in

Catch 22.

The true Catch-22 situation is present in only about half of

the “reliably and consistently” determinations.

It is absent

from the others, because the thresholds are the same.

The Board has proposed the above language with most of the

“reliably and consistently” determinations even when the Catch-22

situation is not present,

in order to give a uniform

interpretation of “reliably and consistently”.

For example,

suppose a rule required quarterly monitoring with a single sample

at 50

of the MCL, but allowed a return to annual monitoring if

levels were “reliably and consistently” less than 50

of the MCL

(of

1 mg/L).

A supplier might demonstrate that his levels were

0.35 mg/L ±0.09. Under the Board’s proposed language,

the’ Agency

might establish 0.45 mg/L as the threshold for a return to

quarterly monitoring,

instead of the 0.50 mg/L threshold in the

rule itself.

In other words,

future quarterly monitoring would

be required when levels exceeded the levels on which the

“reliably and consistently” determination was made, rather than

under the general rule.

The Board has interpreted these rules in this manner in

order to give “reliably and consistently” a uniform meaning

throughout the rules.

The alternative would be to use different

13 1—103

---

36

language for the “reliably and consistently” determination,

depending on whether Catch-22 was present or not.

The Board

solicits comment as to whether it ought to follow the alternative

course.

DOES

EVERYBODY

HAVE

TO

TAKE

A

ROUND

OF

QUARTERLY

SAMPLES?

Several

USEPA

provisions

require

that,

once

a

supplier

has

taken a set of quarterly samples,

subsequent baseline sampling

has to be taken “during the quarter(s) which previously resulted

in the I~ighestanalytical result”.

One

problem with this

formulation is that, for several parameters,

the USEPA rules do

not require that all suppliers have to take a round of quarterly

samples.

The Board construes this omission as an editorial error

by USEPA,

and has proposed to require an initial round of

quarterly monitoring for all parameters.

OBVIOUS SAMPLING ERRORS

Several USEPA provisions allow the State to “delete the

results of obvious sampling errors”.

For

example,

40 CFR

141.23(f) (3), Section 611.606(c)).

As is discussed above,

the

Board has construed this as meaning that the Agency can

substitute a confirmation sample for the original sample’if an

“obvious sampling error”’occurred.

Apart from that problem,

there is a question as to whether this says what USEPA probably

means.

“Obvious sampling errors” is not acceptable as a standard

for Agency action, both in terms of accuracy and specificity.

Why should compliance be judged based on erroneous data, even

where the error may not be “obvious”?

Furthermore,

what factors

should the Agency consider in deciding whether a sampling is in

error?

Is this restricted to known instances of sample

contamination, or can a sample be rejected based on statistical

analysis of prior data?

The Board has proposed to require the Agency to delete

“sampling errors”, whether obvious or not.

The Board solicits

comment as to exactly how “sampling error” should be defined, and

as to the appropriate procedures for sample deletion.

LABORATORY

APPROVAL

STANDARDS

Several

USEPA

rules

appear

to

set

laboratory

approval

standards.

For

example,

40

CFR

141.23(k)

(5)

(SectIon

611.611(e)

J,

limits

analyses

to

labs

approved

by

USEPA

or

the

State,

and

sets

standards

for

lab

approval.

Labs

must analyze

performance evaluation samples and “achieve quantitative results

on analyses that are within the following acceptance limits:”

Contaminant

Acceptance Limit

131—104

---

37

Asbestos

2

standard

deviations

based

on study statistics

Barium

±15

at ?O.15 mg/l...

This rule is discussed at 56 Fed. Reg.

3571, without any

explanation as to what it means.

It is possible that the rule is~

implicitly referencing’ a larger set of lab approval rules.

The

Board has added a cross reference to the Agency’s lab approval

rules in 35 Ill. Adm. Code 183, but solicits

comment

as to

whether those rules fully explain the meaning the USEPA

provisions.

For purposes of soliciting comment, the Board offers the

following hypothetical interpretation.

A set of samples are

spiked with known amounts of the contaminants at levels in excess

of the indicated concentrations.

The lab analyses the samples.

The known value is subtracted from the measured value, and the

difference converted to a percent of the known.

One standard

deviation of the results must be within the indicated percent of

the known,

in either the plus or minus direction.

The Board

solicits comment as to whether this is correct.

If this interpretation is correct, the USEPA rule may have a

fatal flaw.

As can be seen from the table, the acceptance limits

become wider at lower concentrations, reflecting the reality that

analysis becomes more difficult at lower levels.

However,

as

written, the rule would require certification of a lab which,

for

example, could achieve an acceptance limit of ±15

at 10 mg/L

barium.

Such results would not be particularly good at such high

levels.

Nor would they be indicative of the ability to analyze

samples at drinking water levels.

Therefore,

where this language

occurs, the Board has added a requirement that performance

evaluation samples be at levels which are not in excess of levels

expected to be in drinking water.

GENERAL DISCUSSION OF PROBLEMS IN DEVELOPING STATE RULES

ILLINOIS PROBLEMS

While the above discussion focused on errors and ambiguities

in the USEPA rules, the following will focus on recurring

problems in developing the proposal, which stem not so much from

the USEPA rules as from special situations in Illinois.

Many of

these stem from USEPA rules which direct “the State” to do

something.

In Illinois it is often unclear whether the Board or

the Agency is supposed to act for the State.

Once the

appropriate agency is determined,

it is necessary to decide the

appropriate procedural context for the decision.

Should a Decision be made by Board or Agency?

The Board’s SDWA rules are based mainly on 40 CFR 141.

The

USEPA rules include many directives that “the State” should make

131—105

---

38

a decision.

Ambiguities in these directives are discussed above.

In this portion of the general discussion, the Board will set

forth factors it considers in deciding whether the Board or

Agency should make the decision contemplated in the USEPA rule.

Section 7.2(a) (5)

of the Act requires that the Board,

in

adopting an “identical in substance”

rule:5

(S)pecify whether a decision is to be made by the

Bo~rd,the Agency or some other State agency, based

upon the general division of functions within this Act

and other Illinois statutes.

As is discussed above, the USEPA directives may either

contemplate a programmatic decision to be made in setting up the

program,

or a case—by—case decision to be made in the course of

administering the

program.

The programmatic decisions

intrinsically must be made by the Board when it adopts these

rules.

The following discussion concerns the case—by—case

decisions.

As

it

happens,

almost

all

of

the

case—by—case

decisions

involve

detailed

adjustments

to

the

monitoring

and

reporting

requirements, which are clearly within the Agency’s jurisdiction.

Most of,the problems center on the appropriate procedural vehicle

for

the

decision, which is discussed below.

However, the Board

will first set forth the general factors it relies on in deciding

whether a decision is to be made by the Board or Agency.

This is

taken from the R88-26 Opinion, at p.

7.

The Board considers the

following factors in determining the general division of

authority between the Agency and the Board:

1.

Is the entity making the decision applying a Board

regulation,

or taking action contrary to

(“waiving”) the Board regulation?

While the

Agency may apply Board regulations in the issuance

of a permit,

it takes some form of Board action to

“waive” a Board regulation.

For example, the

Agency clearly has authority to apply a regulation

which says “If A do X, otherwise do Y”.

On the

other hand regulations which say “If not A, the

5Most USEPA rules

which are the subject of identical in

substance rulemaking are drafted as “pattern rules” which ‘apply

directly in USEPA-administered states.

Most decisions are worded

as “Regional Administrator” decisions, with the understanding

that the state is to make the decision after a program is

delegated.

These rules differ in that they are explicitly worded

as directives for state action.

Thus, the usual ambiguities as

to whether “the State” or “the Regional Administrator” is

supposed to make a given decision are absent.

131—106

---

39

State shall waive X” may require Board action.

2.

Is there a clear criterion for action such that

the Board could give meaningful review to an

Agency decision?

3.

Is there a right to appeal?

Agency actions must

generally be appealable to the Board.

4

•

Does the action concern an entity which is

required to have a permit anyway?

If so, there is

a pre-existing permit relationship which can

easily be used as a context for an Agency

decision.

If the action concerns an entity which

does not have a permit,

it would be more difficult

to place the decision into a procedural context

which would be within the Agency’s initial

jurisdiction.

5.

Does the action amount to an exemption from the

permit requirement itself?

If so, Board action is

generally required.

6.

Does the action amount to “determining, defining

or implementi~ngenvironmental control standards”

within the meaning of Section 5(b)

of the Act?

If

so,

it must be made by the Board.

Many of the State decisions are called “waivers” in the

USEPA rules and Preamble.

However, these are not, “waivers” in

the sense used in the above discussion, under item 1.

Rather,

these are mostly provisions which allow the State to reduce the

frequency of monitoring if certain :conditions are met.

The

monitoring requirement is not “waived” in any sense of the term,

legal or otherwise.

The supplier still has to monitor after the

“waiver” is granted, but at a level which the State has

determined is appropriate under the circumstances.

Indeed, these

provisions fit exactly into the above example of what is

j~

a

waiver.

In a least one situation the “waiver” allows the supplier to

stop monitoring altogether

40

CFR 141.23(b) (3), Sec.

611.602(c).

This is more like a “waiver”,

but. one which is

based on a determination that the contaminant

(asbestos)

is not

likely to be present.

To the extent it is a “waiver” it is still

not a waiver of the MCL.

This is still a technical decision

applying a Board rule of the form “If A, monitor;

otherwise

don’t monitor”, and is within the Agency’s competence.

The Board has generally changed the name of these procedures

from “waivers” to “adjustments” in order to avoid confusion with

the general concepts.

131—107

---

40

Some specific examples of Agency decisions are discussed

below, following a discussion of the available procedural

mechanisms.

The limiting factor for most of the decisions in

this rulemaking is item 4:

the procedural context for the Agency

decision.

As is discussed below, the Agency does not issue a

“master permit” for PWSs.

A result of this is that,there was no

procedural vehicle available for most of the decisions in R88-26.

This would have forced almost all of the decisions contemplated

by the federal rules into Board variances or adjusted standards.

This would have been administratively impossible to manage, and

not app&opriate for decisions which are traditionally made by the

Agency, in other programs,

in a permit context.

To avoid this

result,

in R88—26, the Board added the special exception permit,

or “SEP”,

to provide a procedural vehicle for Agency decision.

Procedures for Board Decisions

If a case—by—case decision must be made by the Board, rather

than the Agency,

it is necessary to determine what procedural

context is best suited for that decision.

There are four common

classes of Board decision:

variance, adjusted standard, site

specific’ rulemaking and enforcement.

The first three are methods

by which the effect of a regulation can be temporarily postponed

(variance)

or modified to meet specific situations

(adjusted

standard or site specific rulemaking).

The term “variance”

is used in the Illinois Act in a

different sense than in the USEPA regulations.

The difference in

terminology has caused past misunderstanding with USEPA.

I~ithe

USEPA rules the term “variance” sometimes refers to a permanent

waiver of a rule,

something which is not allowed in an Illinois

“variance”.

Indeed, the equivalent USEPA procedure is often

a

“delayed compliance order”.

A variance is initiated by the operator filing a petition

pursuant to Title IX of the Act and 35 Ill. Adm. Code 104.

The.

Agency files

a recommendation as to what action the Board should

take.

The Board may conduct a public hearing, and must do so if

there is an objection to the variance.

Board variances are:

temporary;

based on arbitrary or unreasonable hardship; and,

require a plan for eventual compliance with the general

regulation.

To the extent a decision specified in the USEPA

rules involves these factors,

a Board variance may be an

appropriate mechanism.

A variance is not an appropriate mechanism for a decision

which is not based on arbitrary or unreasonable hardship, or

which grants permanent relief without eventual compliance.

To

grant permanent relief, the Board would need to grant a site-

specific regulation or an adjusted standard pursuant to Sections

27 or 28.1 of the Act, and 35 Ill.

Adm.

Code 102 or 106.

131—108

---

41

Procedures for Agency Decisions

As is discussed above, the USEPA rules include many

provisions which require “the State” to make a decision.

These

could be either programmatic decisions or case—by—case decisions.

While the former are intrinsically Board decisions, the latter

could be appropriate either as Board or Agency decisions.

Once

the Board has determined that such a decision is appropriate as

an Agency decision, the next question is the procedural mechanism

for the,Agency decision.

Almost all of the case-by—case decisions involved in this

rulemaking concern detailed adjustments to monitoring and

reporting requirements, and are appropriate as Agency decisions.

The main question is the procedural context for the decision.

As was discussed on p.

14 and 49 of the R88-26 Opinion, the

Agency does not issue a “master permit” for public water

supplies.

Rather,

it issues construction and operating permits

for each project associated with the PWS.

The absence of a

“master permit” causes the most severe problems in attempting to

fashion Board rules meeting the USEPA requirements.

There are three procedural vehicles available for Agency

case—by—case decisions.

‘These are:

Issuance or modification of a construction or

operating permit, where the decision is

germane to a pending application.

Issuance of a “SEP” under Section 611.110.

Self-implementing provision.

When a decision involves new construction, or a physical

modification to the PWS,

a construction permit is the appropriate

mechanism for Agency action.

There do not appear to be many of

these.

The most common procedure for an Agency decision in this

proposal is a “Special Exception Permit”

(“SEP”).

This was a new

procedure, which the Board added in adopting the SDWA rul~sin

R88-26

(Opinion,

p.

49).

Although the SEP was not specifically

required by the USEPA rules,

it was necessary for the Board to

create a procedural context for the numerous case—by—case

decisions required by the USEPA rules.

In the absence of a SEP,

these would have to have been handled by Board variances,

adjusted standards or site—specific rules.

Some “decisions”

in the USEPA rules are worded as self—

implementing provisions.

For example,

a rule might say “If A and

.B, the supplier takes a sample for X”.

The problem with these

131—109

---

42

rules

is that it is unclear who decides whether A and B have

happened.

In some rules the Board has required a SEP.

In the absence of a SE?, or other prior determination by the

State, the supplier would be subject to enforcement for failing

to sample for X, without prior notice that the Agency believes A

and B are true.

Furthermore, the only mechanism by which the

supplier could challenge the Agency’s determination would be to

refuse to take the samples, and contest the determination in an

enforcei~entproceeding.

This has due process problems, and is

administratively inefficient.

However, the Board has allowed a

few “self—implementing” provisions, especially where a quick

response is needed and a factual dispute appears unlikely.

For

example, some USEPA rules require a confirmation sample, within

a

short time,

after a single sample exceeds the MCL

(or some other

threshold).

These are appropriate as self—implementing

provisions, since a quick response is needed, there is unlikely

to be a factual dispute and the response (another sample)

is not

particularly burdensome.

As the Board understands the Agency’s practices, most

samples are actually analyzed by Agency labs, pursuant to sample

requests from the Agency.

In

actual practice, the “self—

implementing”

provision

would

actually

be

initiated

with

an

Agency determination and’notification,

by way of the sample

request letter.

Agency Initiated SEPs

The SEP procedure adopted in R88-26 contemplated an

application frOm the supplier.

This procedure was focused on

“waivers” or adjustments from the baseline requirements in the

rules,

things the supplier would want to apply for.

Many of the procedures in this Update are focused on

increases in monitoring following a “bad” sample, or other

circumstances.

To the extent these require a prior decision by

the Agency,

a procedural context is

required.

The Board has,

in

Section 611.110, proposed to allow Agency—initiated SEPS, when

authorized by a specific Board rule.

Time for Monitoring

The USEPA rules include a number of provisions governing the

“time” for monitoring.

This refers to the day, month and year on

which

a specific sample is to be taken,

as opposed to the

“frequency”

of monitoring, which is governed by other rules.

For

example, while a “frequency” rule might specify quarterly

monitoring, a “time” rule would might require that the quarterly

samples be taken on the 15th of March,

15th of June,

etc.

An example of a time of monitoring rule is 40 CFR

131—110

---

43

141.24(f) (21)

611.646(u):

(21)

Each public water system shall monitor at the

time designated by the State ‘within each compliance

period.

The time of monitoring requirement appears to be a new USEPA

requirement.

In the past, time for monitoring has not been

expressly addressed in the rules.

This

may be in response to the

complexity of the monitoring frequency rules in the Phase II

rules, ~~~hichinclude quarterly, annual, three—year and nine-year

monitoring cycles.

Especially for the infrequent monitoring,

there appears to be a need for greater specificity.

The Board has proposed to require that the Agency specify

monitoring times by SEP, but solicits comment as to other

mechanisms.

Specific Examples of Agency Decisions

Most of the case-by—case decisions involve adjustments to

monitoring frequencies.

An example appears in 40 CFR

141.23(c) (2)

et seq.

611.603(b)

et seq.)

The baseline

monitoring requirement for barium, cadmium, etc.

is one sample

each (three year)

compLiance period for GWSs, and an annual

sample for SWSs.

“The State” can reduce this to

(nine year)

compliance cycle monitoring after an initial round of monitoring

indicates all previous results less than the MCL5, depending on

the variability.

This is clearly within the Agency’s traditional

authority to specify monitoring frequencies in permits.

Other examples of Agency case—by—case decisions are at the

following locations:

141.23(b) (3)

611.602(c)

141.23(b) (9)

611.602(i)

141.23(c) (2)

et seq.

611.603(b) et seq.

141.23(e) (2)

611.605(b)

141.24(f) (1) and

(2)

611.646(a) and

(b)

141.24(f) (7)

611.646(g)

Stringency

Section 7.2(a) (6)

of the Act provides that:

Wherever appropriate,

the Board regulations shall

reflect any consistent, more stringent regulations

adopted pursuant to the rulemaking requirements of

Title VII of this Act and Section

5 of the Illinois

Administrative Procedure’ Act.

In R88-26, as discussed on p.

6 of the Opinion, the Board

131—111

---

44

reviewed its existing PWS requirements, and identified all of the

consistent, more stringent requirements which involved the same

subject matter as the USEPA rules.

These were moved into Part

611 so that they would be stated along side the related federal

requirements.

These provisions are marked by means of “Board

Notes” or other devices as “additional State requirements”.

As was also discussed in R88—26,

it is sometimes difficult

to make a direct comparison of stringency between the State and

USEPA requirements,

if the requirements are expressed in

a

differex~itway.

Opinion,

p.

7, 23—27

When the rules themselves

and comments do not give a clear answer as to stringency,

the

Board will adopt the USEPA requirement and testing methodology.

Opinion,

p.

25

Both the USEPA and Board rules generally consist of a

numerical standard, a testing method, requirements as to

monitoring frequency and a reporting requirement.

The Board

makes the stringency comparison with respect to the standards,

and then adopts the testing method, monitoring frequency and

reporting requirement associated with the more stringent

standard.

One could argue that,

for example, while a USEPA MCL

was more stringent, the State monitoring requirement was more

stringent.

However, the Board has rejected this type of

stringency comparison, which would result in a “mix and match”

standard’.

Such a standard and associated monitoring requirement

would generally be more stringent than either the USEPA or State

requirements.

The requirement could be totally irrational,

if

the monitoring requirement was to measure something different

from the standard.

Sometimes a problem is addressed through a group of

interrelated standards which are measuring different aspects of

the same thing.

The Board makes stringency comparisons with

respect to the clusters of interrelated requirements.

Once the

Board decides which cluster is more stringent,

it follows through

by adopting the entire interrelated cluster.

R88-26

Opinion,

p.

25

Laboratory Certification

As was discussed on p.

16

-

17 in R88-26, the Agency has

statutory authority for lab certification under Sections 4(o)

and

(p)

of the Act.

In R88-26, the Agency h~dclaimed that this

prevented the Board from adopting rules specifying analytical

methods.

However, Sections 7.2 and 17.5 of the Act require the

Board regulations which are “identical in substance” to the USEPA

regulations ‘which specify analytical methods.

Moreover, approval

of analytical methods is a part of the adoption of an

“environmental protection standard”,

a power reserved to the

Board under Section 5 of the Act.

In certifying a laboratory,

the Agency is supposed to assure that the lab is using the

131—112

---

45

correct analytical methods,

as specified in the Board rules.

Laboratory certification’ comes up in a different context in

this rulemaking.

Several USEPA rules require “performance

evaluation standards”,

and specify the maximum spread of data

allowed if the lab is to be certified.

For example, 40 CFR

141.24(f)(17)

611.646(q)).

This type of rule is more of a “lab

certification” rule than those discussed in R88—26, and appears

to be within the Agency’s authority.

However, Sections 7.2 and

17.5 of the Ac~still require the Board to adopt equivalents,

without exception for lab certification rules.

Board Notes

In R88-26, the Board adopted Part 611, based on the 1989

Edition of the CFR.

The Board added “Board Notes” to show the

source of each Section,

or,

in some cases,

subsection.

There is

some potential confusion in these citations to the 1989 CFR

Edition, which nominally shows amendments through June 30,

1989.

That Edition shows both the before and after text relative~.to the

June 29,

1989,

filtration and disinfection rules.

Therefore,

many of the Board Notes show the 1989 Edition, as amended June

29,

1989, to indicate which version in the 1989 Edition.

The 1990 ‘Edition of’the CFR is now available.

It shows the

rules as adopted through June 30,

1990.

The Board has proposed

to routinely update the Board notes,

in all Sections subject to

this rulemaking, to reference the 1990 Edition, as amended.

The

Board has proposed to delete all Federal Register citations prior

to July 1,

1990,

since these are encompassed in the new Edition.

Since July 1,

1990,

is also the starting date for this batch

period, the remaining Federal Register citations will all be to

the Federal Registers involved in this update.

Although the 1991 Edition of the

CFR

is also available, the

Board will not update citations to that Edition in this Docket,

which runs only through January 31,

1991.

The Board will update

the references in the next Docket, whose ending date should be

after the June 30,

1991, date of the 1991 Edition.

SUBPART A:

GENERAL

PROVISIONS

Section 611.101

This Section is derived from 40 CFR 141.2, which was amended

at 56 Fed. Reg.

3578, to add four definitions associated with the

revised MCL5.

The definitions involved are “compliance cycle”,

“compliance period”,

“initial compliance period” and “repeat

compliance period”.

The definitions set up a series of nine year “compliance

cycles”, each consisting of three three—year “compliance

131—113

---

46

periods”.

The initial period begins with the first period which

begins at least 18 months after federal promulgation.

The Board

has proposed to substitute the actual date for the beginning of

the first period, January

1,

1993.

The USEPA rules also define “repeat compliance periods” as

“any subsequent compliance period after the initial

...“

The

Board has proposed to delete “subsequent” as redundant.

In R88-26, the Board adopted the existing definitions based

on the 1989 CFR, with any subsequent amendments noted in Board

Notes following each definition.

As is discussed above, the

Board has proposed to update these notes to the 1990 Edition,

as

amended.

The existing definition of “BAT” references “Subpart G”,

in

which the revised MCL5 were to be located under the R88-26

proposal.

However, these were combined with the other MCLS in

Subpart

F on final adoption.

The Board has proposed to correct

this cross reference.

The Board has proposed to add a definition of “MFL”,

the

unit of measure for asbestos.

The definition is 40 CFR

141.23 (a) (4) (i):

“MFL” means millions of fibers per liter larger than 10

micrometers

The Board has proposed to add three definitions used in the

amendments to Section 611.526(e)

and

(f).

These are

“MUG”

(4—

methyl—uinbelliferyl—beta—d—glucuronide,

“mu”

(nanometer) and “ug”

(microgram).

“MUG”

is already implicitly defined,

in Section

611.103,

in the name of the “lIMO-MUG” test.

However,

“MUG”

is

now used as a term alone in the amendments below.

The Board adopted the definition of

“RDC”

in R88—26.

As was

discussed in the Opinion at pages 26 and 40, the Board intended

to add language to the definition of

“RDC”

to make it clear that,

for purposes of the requirement of Section 611.241(d)

of

maintaining a detectable

RDC

in the distribution system,

“RDC”

means a residual of free or combined chlorine.

However, this

change was inadvertently omitted from the final Order.

The Board

has therefore proposed to modify the definition in this Docket.

Section 611.102

This Section is the consolidated listing of incorporations

by reference.

These references are scattered throughout the

USEPA rules,

and the current modifications.

The Board will

review the incorporations against the documents currently

referenced in the amendments,

and make, any needed changes here.

131—114

---

47

Inorganic Monitoring Methods:

40 CFR 141.23(k)

USEPA has made several changes to the incorporations by

reference concerning inorganic monitoring.

These are now in 40

CFR 141.23(k), which corresponds with Section 611.611 below.

Environetics

The

MMO-MUG

test was formerly supplied by Access Analytical

Systems,

Inc.

This is now called “Environetics, Inc.”

(PC 3).

The Board has proposed to revise the entries in the incorporation

by reference Section to use the new name.

As is discussed below in connection with Section 611.526,

this update includes approvals for new uses of the

MMO-MUG

test.

The Board has not received any updated material from the company.

The Board solicits comment as to whether the material previously

received suffices for the new purposes.

Millipore Corporation

This

is a new reference to an ion chromatography method for

nitrate/nitrite.

The reference is in 40 CFR 141.23(k) (1),

footnote 10.

That Section references both “B—lOll” and “B-lOOl”.

According to Nillipore, the former is correct.

Inorganic Methods

40 CFR 141.23 makes numerous references to the 1983 Edition

of “Methods for Chemical Analysis of Water and Wastes”,

which

USEPA refers to as “EPA Methods”.

The Board references this as

“Inorganic Methods”, to distinguish it from other USEPA

publications which are also called “EPA Methods”.

USEPA has updated this reference from the 1979 Edition to

the 1983 Edition,

for some, but not all, parameters.

USEPA

indicates that the 1983 document is available from “ORD

Publications, CERI,

USEPA, Cincinnati,

OH 45268

(EPA—600/4-79—

020).

ORD

Publications actually exists, and has a telephone.

But,

they don’t have this document.

They did know the NTIS number.

Also, the EPA number cited in the USEPA rule is the number for

the 1979 Edition,

not the 1983 Edition.

One can tell by the “4-

79” in it.

The Board has added a separate citation to the 1983 Edition

under the NTIS heading.

The Board rule currently cites to the

1979 Edition under the heading “NTIS”.

However, the NTIS number,

previously given by NTIS,

is actually for the 1983 Edition.

NTIS

has now provided a separate number for’ the 1979 Edition.

The

~oard has corrected this in the rule.

But,

it won’t do a bit of

131—115

---

48

good:

NTIS automatically sends the 1983 Edition to anyone trying

to order the 1979 Edition.

Asbestos Methods

40 CFR 141.23(k) (1)

cites to “Analytical Method for

Determination of Asbestos Fibers in Water”.

Footnote

9 indicates

that the document is available from USEPA in Athens,

GA.

We were

unable to verify whether they actually have the document.

However, the document is available from NTIS, to which the Board

has cit~d.

The USEPA rule also give numbers from the 14th Edition of

Standard Methods, but cites to the 16th Edition.

The Board has

used the 16th Edition numbers.

Orion Research

40 CFR 141.23(k) (1), footnote 5 cites to Orion Research for

a nitrate/nitrite method, WeWWG/5880.

Orion

is actually in

Boston, rather than Cambridge,

as cited by USEPA.

The Board has

provided the correct address and phone number for this standard.

USGS Methods

This involves the USGS “Methods for Determination of

Inorganic Substances in Water and Fluvial Sediments”, which the

Board refers to as “USGS Methods”.

In R88-26, USEPA provided the

Board with a copy of this document, but was unable to find an

address.

USEPA has now provided a wrong address.

At least it

was in the right area code,

so it was possible to get a phone

number.

The Board has placed the correct address and phone

number in the rule.

The previous USEPA rules cited to the 1971 and 1979 Editions

of this document.

40 CFR 141.23(k) (1), footnote 4 cites to the

“1985” Edition.

Wrong again.

According to USGS,

there was no

1985 Edition.

The current Edition is the 1989 Edition, to which

the Board has cited.

USGS no longer makes the 1971 and 1979 Editions available to

the public.

However, the Board will continue to cite them,

as

required by USEPA.

USEPA also cites this as “Chapter A—i”.

It is useful to

know that it’s in Book 5.

Section 611.110

This Section concerns “Special Exception Permits”

(“SEPs”).

As is discussed in general above, the Board is proposing to allow

the Agency to initiate the SEP process, where specifically

131—116

---

49

provided in the Board rule governing the particular SEP.

This

will provide a mechanism for Agency decisions related to

increasing monitoring frequencies.

The proposed new language is as follows:

d)

A SEP may be’ initiated either:

1)

By an application filed by the supplier;

or

2)

By

the

Agency,

when

authorized

by

Board

regulations.

Section 611.111

This Section is derived in part from

40

CFR

141.4,

which

was amended at 56 Fed. Reg.

1557.

This Section concerns

variances under Section 1415(a) (1) (A)

of the SDWA.

The amendment

affects Section 611.111(f), which prohibits variances from the

MCL for total coliform or the related treatment requirements.

USEPA has “stayed” the portion of the prohibition relating to

variances from the MCL where the violation is due to “persistent

growth

...

in the distribution system”, rather than

contamination, treatment deficiency, or operation or maintenance

problems.

The Board has proposed to split Section 611.111(f)

into two

subsections, one dealing with MCL variances, the other with

treatment variances.

This allows insertion of the USEPA “stay”

as a proviso relating only to the MCL subsection

The USEPA regulation is referred to as a “stay”.

However,

it has been adopted as a general regulation of indefinite

duration, which will require future rulemaking by USEPA to remove

or modify.

This is not a “stay” as the term is usually used by

the Board.

The Board has therefore dropped the term from the

rule.

When USEPA modifies the rule to remove or modify the

“stay”, the Board will amend this Section to reflect the result.

Section 611.112

This Section is also derived from 40 CFR 141.4, which was

amended at 56 Fed. Reg.

1557.

This Section concerns variances

under Section 1416 of the SDWA.

The amendment is the same as is

discussed above in connection with Section 611.111.

The new

language is

in Section 611.112(g).

SUBPART

D:

TREATMENT

TECHNIQUES

This is a new Subpart which establishes treatment technique

requirements in lieu of MCL5.

This

is. placed after Subparts B

and C, which also set treatment technique requirements.

131—117

---

50

This Subpart may become very large as USEPA adopts future

regulations.

In R88-26, the Board left only

9 numbers in this

space.

It may be advisable to renumber the MCLs to allow more

space for growth of this Subpart.

An alternative would be to

renumber Section 611.290 to 611.281, allowing room for growth

that-a—way.

Section 611.295

This Section is derived from 40

CFR

141.110, which was added

at 56 Fed. Reg.

3578.

It is the introduction to this Subpart.

The Board has used “NPDWR”

(“national primary drinking water

regulation”) and “MCL”

(“maximum contaminant level”), which are

acronyms defined in Section 611.102.

The second sentence provides that “These regulations

establish...”

The Board has replaced this with “This Subpart

establishes..

.“

to be consistent wIth Administrative Code

terminology.

Section 611.296

This Section is derived from 40 CFR 141.111, which was added

at 56 Fed. Reg.

3578.

This establishes a certification

requirement as a “treatment technique” for acrylamide and

epichiorohydrin, which are sometimes used in or as coagulants in

PWS treatment.

(56 Fed. Reg.

3558)

There are several minor editorial problems with this short

Section, which reads as follows:

141.111

Treatment techniques for acrylamide and

epichlorohydrin.

Each public water system must certify annually in

writing to the State (using third party or

manufacturer’s certification) that when acrylamide and

epichlorohydrin are used in drinking water systems, the

combination

(or product) of dose and monomer level does

not exceed the levels specified as follows:

Acrylamide

0.05

dosed at

1 ppm (or equivalent);,

and

Epichlorohydrin

=

0.01

dosed at 20 ppm

(or

equivalent).

Certifications can rely on manufacturers or third

parties, as approved by the State.

(40 CFR 141.111;

56

Fed.

Reg.

3594)

First,

since the title of the Subpart is “Treatment

Techniques”,

it is not necessary to repeat this in the Section

131—118

---

51

title.

Second, the USEPA rule r’equires that “Each public water

system”

(“PWS”)

certify.

As is discussed in general above, the

Board has proposed to use “supplier”, which is defined in Section

611.102.

Third,

a comma is needed at the beginning of the “when”

clause in the first sentence.

Fourth, the USEPA rule requires certification only if

“acrylamide and epichlorohydrin” are used.

USEPA probably means

“or”, which the Board has proposed to use.

And, for reasons

discussed below,

the rule is really referring to “products

containing” traces of acrylamide or epichlorohydrin.

Fifth, the USEPA rule requires certification only if the

chemicals are used in “drinking water systems”,

a term which is

not defined in 40 CFR 141.

The Board has proposed to substitute

the term defined in Section 611.102,

“PWS”.

However,

it

is

possible that USEPA intended this to apply only to a subset of

PWS

5.

Sixth, while the USEPA rule starts off requiring “Each” PWS

tO certify, it then speaks of “systems”, in the plural.

The

Board has proposed to make this singular.

Seventh, the USEPA Section has a “hanging paragraph”, which

is prohibited by the Code Division.

The Board has proposed to

split the Section into subsections

(a) and

(b).

The hanging

paragraph deals with manufacturer’s certifications, which is

discussed below.

The language is actually repeated in the

introduction to the Section, which .the Board has deleted as

redundant.

An alternative would be to delete the hanging

paragraph, and retain the language in the introduction.

However,

the Board has not done this,

since the question of Agency

approval of manufacturer’s certifications may become to complex

to address in a parenthetical.

Beyond these minor editorial problems, this Section has what

may be major problems.

First, the PWS is required to certify

that the “combination (or product)

of dose and monomer level does

not exceed

...

Acrylamide=0.05

dosed at 1 ppm (or

equivalent)...”

What does “combination of dose and monomer

level” mean?

What

does “product of dose and monomer level” mean?

What is the 0.05

referenced to, the finished water?

What is the

1 ppm referenced to? Is this by weight, or by volume?

In the Preamble, the proposed rule is quite different,

as

follows:

EPA proposed to limit the allowable monOmer levels in

13 1—119

---

52

products used during water treatment,

storage and

distribution.

These levels are:

Acrylamide:

0.05 percent acrylamide in

polyacrylamide dosed at 1 ppm...

(56 Fed. Reg.

3558)

The USEPA Preamble then discusses changes which are unrelated to

the differences in wording between the above and the final rule

(concerning the use of manufacturers’ certifications).

The

Preamble then concludes the discussion by saying:

“...with the

modification as noted above, the treatment technique requirements

are promulgated as proposed.”

(56 Fed. Reg.

3559)

As presented in the Preamble, the rule is marginally

understandable.

The supplier has to certify that polyacrylamide

products dosed at 1 ppm (in the finished water)

contain less than

0.05

unreacted monomer

(relative to the total polyacrylamide in

the product).

The 0.05

is supposed to be corrected for the ‘dose

level,

so that the same quantity of unreacted monomer

is present

after dosing:

i.e.

0.025

when dosed at 2 ppm, and 0.10

when

dosed at 0.5 ppm.

These are presumably weight ratios.

The Board

has undertaken to write a rule saying this,

as follows:

a)

Each supplier shall certify annually in writing to

the Agency that, when products containing

acrylamide or epichiorohydrin are used in the PWS,

the product of monomer leveland dose does not

exceed the levels specified as follows:

P=A*B

Where:

A

=

Percent by weight of unreacted monomer in the

product used.

B

=

Parts per million by weight of finished water

at which the product is dosed.

P

=

Product of monomer level and dose:

1)

For acrylamide,

P

=f 0.05;

and

2)

For epichlorohydrin,

P

=

0.20.

This brings us to the hanging paragraph, which the Board has

labeled “b”.

The first problem is:

what is meant by “third

party” certifications?

This is not really explained in the

Preamble

(56 Fed. Reg. 3558).

The Board assumes this refers to

outside testing laboratories.

These would not necessarily be

certified under the SDWA,

since testing for unreacted monomer

is

131—120

---

53

outside the usual scope of drinking water testing.

The second problem is the mechanism by which the State

approves the certifications.

The first question is whether the

approval

(or disapproval) ought to come in this rulemaking,

or

whether the Board ought to adopt the rule allowing a case-by-case

decision later.

The Preamble is clear that the State does not

have to allow the use of third party or manufacturer’s

certifications (56 Fed. Reg.

3558).

One option would be for the

Board to omit this language, thereby disapproving these

certifi3ations.

A second option would be for the Board to adopt a rule

approving certain types of certifications.

The Board would need

input from the Agency and PWSs to develop such a rule.

The Board has proposed to follow a third option, and has

proposed a rule allowing the Agency to make a case—by—case

decision as to whether to approve individual certifications.

This would be by special exception permit,

as allowed under

Section 611.110.

A problem with this approach is that the USEPA rule does not

include a standard by which the State approves the

certifications.

The Board has proposed to require the Agency to

approve certifications if it determines that the third party or

laboratory has correctly measured the percent unreacted monomer,

using correct methods.

The Board solicits comment on this.

Another problem with the USEPA rule is that it fails to

specify a method for measuring the percent of unreacted monomer.

This should be a standard quality control test for the

manufacturers.

The Board

solicits comment

as to the identity of

this test.

SUBPART

F:

MCLs

Section 611.300

Inorganic MCLS

This Section is derived from 40 CFR 141.11 and 141.62, which

were amended at 56 Fed. Reg. 3578.

This contains the standards

for inorganic chemicals.

As is discussed below, the Boardis

proposing to split this into two Sections, moving the portions

derived from 40 CFR 141.62 to Section 611.301.

Types of Standards

There are three types of standards.

There are the old State

“MACs”

moved from 35 Ill.

Adiu.

Code 604.

There are the “old”

MCLs adopted by USEPA in 40 CFR 141.11.

And, there are the

“revised” MCLs adopted by USEPA pursuant to the 1986 amendments

to the SDWA.

The “revised” MCLs differ from the “old” MCLs in

131—121

---

54

that, pursuant to the 1986 amendments, USEPA must specify a BAT

for meeting the “revised” MCL, and must specify an MCLG.

As adopted in R88-26,

this Section contains the State

“MACs”,

the “old” USEPA MCLS and the “revised” USEPA MCL5.

The

Board consolidated these into a single table, pursuant to public

comment.

(R88-26 Opinion,

p.

21,

73).

The MCLGS were not

adopted, since they are not enforceable.

(R88-26 Opinion,

p.

22).

Likewise, the Board did not adopt the secondary MCLs,

which, except with respect to fluoride, contain no enforceable

provisions.

The Board solicits cou.nt as to whether anyone

favors adopting additional secondary MCLs.

The standards which are derived from the State MACs are

marked with a

“*“

in the table in Section 611.300.

The old MCLs

have no special marking.

In R88—26, there was only one revised

MCL,

for fluoride, which bore no special marking.

Changes to Standards

1611.3001

In the January 30,

1991 rulemaking,’ USEPA has adopted

revised NCL5 for eight parameters:

asbestos, cadmium, chromium,

mercury,

nitrate, nitrite, total nitrate and nitrite, and

selenium.

These will become effective on July 30,

1992,

replacing the old NCL5 ~for chromium, mercury, nitrate and

selenium.

The following Table summarizes the changes:

6USEPA does not necessarily change the numerical value of

the NCL when it adopts a “revised MCL”.

Rather, this is a term

of art to indicate that the MCL has been adopted pursuant to the

1986 amendments, with BAT and an MCLG.

.(R88-26 Opinion,

p.

22)

131—122

---

55

INORGANIC REVISED MCLs MOVED TO 611.301

CONTAMINANT

OLD

MCL

REVISED

COMMENT

MCL

Asbestos

Count

Mew MCL

Cadmium

0.010

0.005

MCL decreased

Chromium

0.05

0.1

MCL increased

Fluoride

4.0

4.0

Moving MCL to 611.301

without change

Mercury

0.002

0.002

No change

Nitrate

10.

10.

No change

Nitrite

1.

New MCL

Tot. Nitrate!

10.

New MCL

Nitrite

Selenium

0.01

0.05

MCL increased

Stringency

Many of these “changes” involve no change to the numerical

standard:

.USEPA is simply ratifying the old MCLas a “revised

NCL” under the 1986 amendments to the SDWA, and specifying BAT

and an MCLG.

In other cases the revised MCL is “less stringent” than the

old MCL.

Presumably USEPA has reviewed the current knowledge of

the contaminant, and determined that a higher MCL is sufficiently

protective of public health.

In situations in which USEPA is raising the MCL, there is an

argument

that the existing Board rule is “more stringent”,

and

hence should be retained.

However,

in each such case the

existing Board rule was derived from the old USEPA MCL by way of

identical in substance rulemaking, rather than adopted pursuant

to full Title VII rulemaking.

Because the old MCL has no

independent basis in State law, the Board is not required to make

a stringency comparison under Section 7.2(a)(6)

of the Act.

BATs and Delayed Effective Dates

The January 30 rulemaking poses two format problems for

modifying Section 611.300 to reflect the USEPA action in a single

Section.

First,

the revised MCLs have BATs associated with -them.

131—123

---

56

Second, the old MCL5 will continue in effect for more than a year

before the revised MCLs become effective.

Attempting to show

BATs and delayed effective dates would be too complicated to be

understandable in a single Section.

Therefore, the Board has

proposed to place the revised MCLs in a new Section 611.301,

together with their BATS and delayed effective dates.

The Board

will add “until” language to the old MCLs which are being

replaced.

The “until” language has been placed at the end of the

introdudtory language to Section 611.300(a).

A “T”

(for

“temporary”) has also been placed after each entry. for an MCL

which is being moved.

These should be repealed in the next

update after July 30,

1992.

Fluoride

This reorganization will more closely follow the USEPA

structure,

in which the old MCLs are in 40 CFR 141.11, and the

new in 40 CFR 141.62.

However,

in order to make Section 611.301

the equivalent of 40 CFR 141.62,

it is necessary to also move the

revised MCL for fluoride.

This poses a minor problem,

in that

the fluoride MCL is already effective.

It would require a

complex effective date statement to remove it from Section

611.300 immediately.

The Board has instead proposed to duplicate

the fluoride standard in Sections 611.300 and 611.301, with the

former subject to the same “until” language, and the latter the

same delayed effective date as the other revised MCL5.

Note,

however, that there

is no change in the numerical standard (as is

also the case with some of the other revised MCL5).

Nitrate Adiustments for non—CW’Ss

I611.300(d)1

Section 611.300(d)

is derived from 40 CFR 141.11(d).

This

establishes an adjustment provision (administered in Illinois by

the Department of Public Health) concerning the nitrate standards

for non-CWS5.

This is not subject to the USEPA “until” clause.

However,

it would appear to be moot after July 30,

1992, at which

time non-CWS5 would be subject to the revised NCL for nitrate in

40 CFR 141.62.

This subsection should also be repealed after

that date.

Section 611.301

Revised Inorganic MCLs

As is discussed above,

this new Section is derived from 40

CFR 141.62, which was amended at 56 Fed. ,Reg.

3578.

This will

contain the State equivalents of the “revised” MCL5 adopted

pursuant to ‘the 1986 amendments to the SDWA,

and will specify

BATs.

The Board will also move the existing revised MCL for

fluoride to this Section.

Format

131—124

---

57

40 CFR 141.62(a)

is a “reserved” subsection.

This is

prohibited by the Code Division.

However, the Board has inserted

a do-nothing cross reference to Section 611.100(e),

which

explains that some subsections are intentionally omitted to

preserve correspondence with USEPA subsection labelling.

The delayed effective date for the revised MCLs is in 40 CFR

141.60.

The Board has placed this with the MCLs for greater

clarity.

This has been worded as “These PWS5 shall comply with

these MçLs by ~3uly30,

1992”, so as to avoid complying with

complex Code Division rules on delayed effective dates.

The USEPA MCL5 are numbered as subsections.

This is not

necessary in the Administrative Code.

And,

it seems to add

unnecessary confusion.

Although the USEPA table has a heading for “mg/l”, the NCL

for asbestos is actually in MFL (millions of fibers/L).

The

Board has proposed to place the applicable units beside each

standard.

The USEPA entries for nitrate/nitrite has the “as nitrogen”

after the standard.

The Board has moved this to its traditional

place next to the contaminant name.

Also,

the Board has

expressed this’ as “as

Nb”, also in accordance with tradition.

Applicability

1611.301(b) 1

40 CFR 141.62(b) starts out with an amazingly complex

applicability statement:

The maximum contaminant levels, for inorganic

contaminants specified in paragraphs

(b) (2) through

(6)

and

(b) (10)

of this section apply to community water

systems and non—transient, non-community water systems.

The Maximum Contaminant Level specified in paragraph

(b) (1)

of this section only applies to community water

systems.

The Maximum Contaminant Levels specified in

paragraphs

(b) (7),

(b) (8), and

(b) (9)

of this section

apply to community, non-transient non—community, and

transient non—community water systems.

This notwithstanding, the applicability of the revised MCLs

is really quite simple:

They apply to all CWSs.

Except for

fluoride and selenium, they also apply to NTNCWS5.

The MCLs for

nitrate/nitrite also apply to transient non-CWS5.

The Board has

proposed the following language 611.301(b):

The MCL5 in the following table apply to CWSs.

Except

for fluoride and selenium, the MCLs also apply to

NTNCWSs.

The MCL5 for nitrate, nitrite and total

nitrate and nitrite also apply to transient non—CWSs...

131—125

---

58

Revised MCL5

This Section lists the revised MCLs adopted pursuant to the

1986 amendments to the SDWA.

These are set out with the changes

in the Table in the discussion on Section 611.300,

above.

BATs

Section 611.301(c)

is derived from 40 CFR 141.62(c).

This

is the table listing BATs.

Format for BATs

As is discussed in general above, the USEPA rule includes

language which is personal to the Administrator of USEPA,

and is

not appropriate in State rules.

The Board has adopted this as a

neutral recital of what USEPA has identified as BAT.

The USEPA table in 40 CFR 141.62(c)

is headed “chemical

name” instead of “contaminant”, the phrase used in the other

tables.

It’s not clear what lies behind this shift in

terminology.

However,

“chemical”

is not appropriate, since

asbestos is not really a chemical.

Rather,

it is a physical form

of several chemicals.

The Board has therefore proposed to use

the traditional heading~of “contaminant”.

Definition of “BAT”

Section 611.101 includes a definition of “BAT”, which

includes a lot of the language in 40 CFR 141.62(c):

“Best available technology” or “BAT” means the best

technology, treatment techniques or other means which

USEPA has found are available for the contaminant

in

question.

BAT is specified in Subpart F.

The Board has simply used the defined term, rather than repeat

the definition of “BAT”

in this Section.

Specified Technologies

USEPA specifies a total of nine technologies in various’

combinations as BAT several of the contaminants.

USEPA does this

by assigning a number to each technology, and listing the

appropriate

numbers

beside each contaminant.

Because this is

somewhat hard to follow, the Board has proposed to replace the

numbers

with a mnemonic for each technology.

These are as

follows:

AAL

Activated alumina

C/F

Coagulation/filtration

DDF

Direct and diatomite filtration

131—126

---

59

GAC

Granular activated carbon

IX

Ion exchange

LIME Lime softening

RO

Reverse osmosis

CC

Corrosion control

ED

Electrodialysis

The Board solicits comment as to whether there might be better

mnemonics.

Footnotés

The USEPA rule has footnotes limiting several of the

treatment techniques.

Footnotes are prohibited in the

Administrative Code.

The Board has proposed to put the text of

the footnote right after the mnemonic in the table.

BATs:

Alternative or Sequential Processes?

The USEPA table has a fundamental ambiguity:

does USEPA

mean to be specifying alternative BATs for these parameters,

or

is it specifying a sequence of technologies which, taken

together, constitute BAT?

As is discussed in general above, the

Board assumes that all BATs are alternatives, unless the contrary

is indicated.

The only exception appears to be the BATs for asbestos.

“Corrosion control”

(“CC”)

is probably BAT only if corrosion in

the distribution system has been identified as a source of

asbestos.

If the asbestos contamination is coming from the water

source,

“coagulation/filtration”

(“C/F”)

or “direct and diatoinite

filtration”

(“DDF”) would be required.

If asbestos were coming

from both sources, BAT would be CC and C/F

or DDF.

The Board

has proposed language so specifying.

Barium and Lead

The USEPA rule specifies BAT for barium, even though no

revised MCL was adopted.

The Board assumes this was an error.

However, the Board has proposed to go ahead and adopt the BAT,

since

it seems to do no harm.

Note that the old NCL for barium

remains.

As is discussed below, USEPA has dropped the monitoring and

analytical requirements for lead, even though the standard

remains in 40 CFR 141.11.

Section 611.310

Organic MCLs

This Section contains the MCL5 for organic chemicals,

including the “old” NCL5 derived from 40 CFR 141.12, and the

131—127

---

60

“MAC57”

which are “additional State requirements” beyond those

regulated by USEPA.

Many of the

MACs

were regulated at 56 Fed.

Reg.

3578,

and hence will be moved to Section 611.311, which

contains the USEPA revisei

MCLS

for organics.

As is discussed below in connection with the organic

monitoring requirements, the Board has defined certain terms

which group the regulated organic contaminants into related

blocks for purposes of monitoring.

These terms are not used with

the MCLs themselves.

However, the Board will indicate these

terms

in

the discussion below, to make it easier to cross

reference this discussion.

The situation is rather complex with respect to this

Section,

since there are

MACs

and existing “old” MCLs under 40

CFR 141.12, some of which are moved to and/or modified in 40 CFR

141.62.

The following table shows the status of the contaminants

under this Section:

7For the remainder of the discussion on MCL5,

the Board will

use the term

“MAC”

to refer to NCLS in Part 611 which are

“additional State requirements” derived from the old “MACS”.

The

Board has actually dropped this terminology from Part 611.

131—128

---

Contam-

inant

MAC

61

ORGANIC MCLS

Old MCL

IN 611.310

New MCL

Comment

DDT

Die1drin

Endrin

Heptachlor

Heptachior

Epoxide

Lindane

Methoxy-

chlor

Toxaphene

2

,

4—D

2, 4,5—TP

TTHM

MAC

Only

0. 005

0.1

0.01

0.1

0. 0004

0. 0002

MAC

only

MCL now more

stringent

MAC only

MAC

only

Still

in 141.12

MAC more stringent

MAC

more stringent

Rev’d MCL

MAC

more stringent

Upward Rev’d MCL

MAC applies to more

people

Three contaminants, aldrin, DDT and dieldrin, are regulated

only as MACs.

There is no USEPA MCL in either 40 CFR 141.12 or

141. 61.

MAC

More Stringent

Three other contaminants, heptachlor, heptachlor epoxide and

2,4-D, now have revised MCL5 which are less stringent than the

MAC.

As was discussed in the R88—26 Opinion at page

6 and 74,

pursuant to Section 7.2(a) (6) ‘of the Act, the Board makes a

general determination as to whether the State or federal standard

is “more stringent”,

and adopts the more stringent.

With respect

Aldrin

Chlordane

0.002

0.001

0.003

0.05

0.001

0. 0001

0.0001

0

.

01

0.10

0.0002

0.004

0~.1

Rev’d MCL

Rev’d MCL

0. 0002

0.04

0.003

o

.

07

0.05

13 1—129

---

62

to the heptachlors and 2,4-D, the

MAC

is more stringent than the

revised MCL, and arguably ought to be retained.

The Board has so

proposed.

A possible problem with retaining these MACs is that the

revised NCLs come with a specified BAT, and limitations on

variances (Section 611.111 et seq.)

Even though the

MAC

is more

stringent,

it would be possible for the Board to grant variances

without following the federal requirements, which include the

obligation to apply BAT before requesting a variance.

(Section

611.111(b) (2)).

The Board solicits comment from USEPA and the

Agency as to whether this is a real concern.

It would be possible to fix this problem, with respect to

the heptachlors and 2,4-D, by leaving a more stringent MAC in

this Section, and placing the less stringent revised MCL5 into

Section 611.311.

In this way it would be clear that it would be

necessary to follow the federal procedures to get a variance

above the revised MCL.

There are other, more confusing ways to

accomplish this result.

The Board solicits comment as to whether

this is necessary.

If it the less stringent revised MCLs must be adopted,

it

may be necessary for the Board to conduct a regular rulemaking to

repeal the more stringent MACs.

If the Agency favors this

approach,

it may wish to file a rulemaking petition to initiate

this process.

TTHN:

MAC

Applies to More People

TTHN

is regulated at 0.10 mg/L both as a

MAC

and an “old”

MCL pursuant to 40 CFR 141.12.

There is no revised MCL yet.

While the MCL applies only to CWS5 above 10,000 individuals, the

MAC

applies to all

CWS5

(after 1/1/92).

The

MAC

is more

stringent in the sense that it applies to more people.

The Board

has proposed no change to the

TTHM

provisions.

MAC Replaced with a More Stringent Revised MCL

For chlordane, the

MAC

is 0.003 mg/L.

The new, revised MCL

is 0.002 mg/L.

The Board has proposed to replace the

MAC

with a

revised MCL in Section 611.311, subject to the effective date

problem discussed below.

Old NCL Replaced with Revised MCL

Lindane, methoxychlor, toxaphene and 2,4,5—TP are presently

subject to an “old” MCL derived from 40 CFR 141.12.

These have

been replaced with revised MCL5 under 40 CFR 141.61.

The first

three are more stringent, but the revised MCL for 2,4,5-TP is

“less stringent”.

131—130

---

63

There is a possible argument that the Board is not required

to replace MCLs with “less stringent” federal MCLs.

However, the

MCL for 2,4,5-TP was derived from .40 CFR 141.12, and has no

independent basis as a State regulations adopted pursuant full

Title VII rulemaking.’

Section 7.2(a)(6)

of the Act does not

allow the Board to make a stringency comparison between two

federal requirements.

The Board has proposed to move the MCLs for lindane,

methoxyqhlor, toxaphene and 2,4,5—TP to Section 611.311, where

the revised MCLs will appear, subject to the effective date

problem.

Old MCL Unchanged

Endrin is presently subject to an “old” MCL under 40 CFR

141.12, which is unchanged.

The Board has therefore proposed no

change.

Effective Date Problem

In connection with the inorganic contaminants, discussed

above, USEPA adopted a delayed effective date for the revised

MCLs, but left the old MCLs in place until that date.

USEPA has

adopted the same delayGd date for the organic revised MCL5, but

has not left the old MCLs in place pending that date.

Subject to

the above discussion on stringency,

this would leave no MCL for

chlordane,

lindane, methoxychlor, toxaphene and 2,4,5—TP, pending

the effective date of the revised MCL5.

The Board assumes this

is an error by USEPA,

and has proposed to retain these MCLs in

Section 611.310 until the effective date for the revised MCLs.

The Board has proposed to do this by the same mechanism discussed

above, adding a note and marking the affected parameters with a

“T”.

However,

the Board solicits comment as to whether it ought

to simply repeal these MCLs immediately.

Section 611.311

This Section is derived from 40 CFR 141.61, which was

amended at 56 Fed. Reg. 3578.

This is

the

revised MCL5 for

organic chemicals, together with the BATs.

Many of the revised

MCL5 replace MCL5 formerly in 40

CFR

141.12

Section

611.310,

as

is discussed above.

The NCL5 are now grouped into two subsections.

The existing

MCLs are in ‘40 CFR 141.61(a),

which regulates solvents and other

commercial organic chemicals.

New 40 CFR 141.61(c)

regulates

pesticides and PCBs.

Placed curiously between them are BATS for

both groups, in 40 CFR 141.61(b).

Delayed Effective Date

131—13 1

---

64

As is discussed above in connection with Section 611.301 and

611.310, the January 30 USEPA amendments have a delayed effective

date.

The Board has placed this date into the introductory

language,

and, in Section 611

•

311(a), marked the standards

subject to the delay with a “D”.

All of Section 611.311(c)

is

subject to the delayed effective date.

As was also discussed above, the Board has proposed to leave

certain “old” MCL5 in place pending the effective date for the

revised MCL5.

Contaminants Regulated:

List of Eight “VOCs”

611.311(a)

This Section presently regulates eight “VOCs”:

benzene

vinyl chloride

carbon tetrachloride

1,2-dichloroethane

trichloroethylene

1, 1-dichloroethylene

1,1,1-trichloroethane

p—dichlorobenzene

These are referred to as the “eight organic contaminants”

in

connection with monitoring, below.

These are retained in the new

Section without change, except that the standard for 1,1,1-tn-

chloroethane has been changed from “0.2” to “0.20” mg/L.

Ten Additional Organic Chemicals

611.311(a)

USEPA has added ten solvents and other organic chemicals to

the list in 40 CFR 141.61(a).

These are:

cis-1, 2-dichloroethylene

1, 2-dichloropropane

ethylbenzene

monochlorobenzene

o—dichlorobenzene

styrene

tetrachloroethylene

toluene

trans-1,2—dichloroethylene

xylene

These have been added to Section 611.311(a).

They are referred

below to as the “ten organic contaminants” for purposes of

monitoring.

USEPA has numbered each contaminant in the Table.

It would

be difficult to comply with codification requirements with

numbered entries in the Table.

The Board has therefore proposed

13 1—132

---

65

to omit the numbering.

This will cause problems with cross

references into this Section, which the Board will address below.

The original eight “VOCs” now appear as 40 CFR 141.61(a) (1)

-

(8), and the ten additional ‘contaminants as

(a) (9)

—

(18).

While

the first eight are in arbitrary order, the ten are more or

less in alphabetical order as among themselves.

The Board has

proposed to alphabetize the entire list,

in accordance with Code

Division requirements.

Ch~micallists are supposed to be alphabetized by the first

letter of the name,

ignoring numbers and positional prefixes,

such as “cis—”,

“o—”,

etc.

The letter by which the name is

alphabetized is capitalized.

Thirteen Pesticides and PCBs

611.311(c))

USEPA has added to 40 CFR 141.61(c) MCLs for 13 pesticides

and PCBs.

These are:

alachlor, atrazine, carbofuran, chlordane,

dibroinochloropropane,

2,4-D,

ethylene dibromide, heptachlor,

heptachlor epoxide,

lindane, methoxychlor, polychloninated bi-

phenyls, toxaphene and 2,4,5—TP.

As is discussed above in connection with Section 611.310,

there are more stringent’MACs for three of the contaminants:

2,4-D, heptachlor and heptachlor epoxide.

,

The Board has not

proposed to adopt the less stringent revised MCLs for these

pesticides,

but has above solicited comment.

There are therefore

only eleven proposed MCL5 in Section 611.311(c).

The Board has

referred below to these as the “eleven pesticides, and PCBs”

for

purposes of monitoring.

As is also discussed above, USEPA has replaced the “old”

MCL5 with revised MCL5 for five pesticides:

chlordane,

lindane,

methoxychlon, toxaphene and 2,4,5—TP.

These are included in

Section 611.311(c).

In the Board proposal, however, only three

represent simple replacement of old MCL5 with more stringent

revised NCLs.

These are:

lindane, methoxychlor and toxaphene.

In the case of chlordane, the

MAC

was more stringent than the old

MCL, so this really represents replacement of the

MAC

with a

revised NCL.

In the case of 2,4,5-TP, the revised MCL is actually “less

stringent” than the old MCL.

However, as is discussed above,.

Section 7.2(a)(6) does not allow a stringency comparison as

between two federally derived standards.

The Board has therefore

proposed to adopt the “less stringent” revised MCL.

USEPA has adopted revised MCL5 for five new pesticides,

and

one for PCB5.

These are alachlor, atrazine, carbofuran,

dibromochioropropane, ethylene dibromide and PCBs.

These are

included in proposed Section 611.311(c).

131—133

---

66

As proposed by the Board, the list of fourteen becomes the

following list of eleven pesticides and PCBs:

alachlor

atrazme

carbofuran

chlordane

dibromochloropropane

ethylene dibromide

1indane

methoxychlor

polychlorinated biphenyls

toxaphene

2,4,5—TP

These are referred to as the “eleven pesticides and PCB5”

below,

for purposes of monitoring.

The USEPA standards are numbered

(c) (1)

-

(18).

The 18

numbers represent 14 revised NCL5 plus four “reserved” places.

The Administrative Code rules do not allow “reserved” places.

The four missing pesticides (and/or residues)

appear to be

aldicarb, its sulfone and sulfoxide, and pentachlorophenol.

As

is discussed below, US~PAhas adopted BATS for these

contaminants, but no MCL5, probably due to an editorial error.

Nomenclature

611.311(a)

and

(c)

As was discussed on page 76 in the R88-26 Opinion, the USEPA

rules appeared to use three names for the chemicals regulated by

this Section.

40 CFR 141.61 referred to them as “organic

contaminants” and “synthetic organic chemicals”.

However, the

associated monitoring requirements appeared to refer to the same

chemicals as “VOCs”, which the Agency defined as “volatile

organic chemicals”.

In deference to the Agency, the Board

changed all these names to “VOCs”.

With the addition of

pesticides and PCB5,

it is now clear that this name is no longer

appropriate to describe the entire Section.

In the discussion in the Preamble,

it appears that USEPA is

using the following terminology.

This Section regulates

“Synthetic organic chemicals”

(“SOCS”).

These include’ “Volatile

organic chemicals”

(“VOCS”), Pesticides, PCBs and “Other SOCs”

(namely acrylamide, discussed above).

However, this nomenclature

is not used at all in the regulations.

All of these are referred

to as “organic contaminants”.8

81n R88-26, the ‘Agency repeatedly asserted that “All USEPA

rulemaking” uses the term “VOCs”.

This assertion was false.

Indeed, the Section in question, 40

CFR

141.61, did not use that

131—134

---

67

The nomenclature in the Preamble is misleading.

Among the

“SOCs”, several are naturally occurring feedstocks,

including

benzene.

Although “synthetics” are made out of them, they are

not themselves synthetic.

Among the “VOCs”, several are much

less volatile than water, including styrene, p—dichlorobenzene,

toluene and xylene.

And, they are less volatile than some of the

pesticides, including ethylene dibromide.

Board has proposed to follow USEPA and use “organic

contaminant” in this Section.

Because of USEPA’s inconsistent

usage, ~nd the inappropriateness of the~terms, the Board will

check other Sections to assure that “organic contaminant”

is used

there also.

As is discussed above, the Board has defined special

terms grouping these contaminants for purposes of monitoring

requirements.

BATs

611.311(b)

40 CFR 141.61(b) contains the “BATs” which USEPA has

specified for the organic revised MCL5.

As is discussed above in

connection with Section 611.301, the 1986 amendments to the SDWA

require USEPA to specify BAT when it adopts a revised MCL.

The

term “BAT”

is defined in Section 611.101.

Among other things,

BAT limits the SDWA variances reflected in Section 611.111 and

611.112.

This subsection is placed between the revised MCLs in

subsections

(a) and

(c).

The Board has proposed ‘to follow this

placement.

GAC and PTA

611.311(b)

40 CFR 141.61(b) identifies two technologies:

“granular

activated carbon”

(“GAC”) and “packed tower aeration”

(“PTA”)

as

BAT for various revised MCL5.

Neither term is further defined.

As is discussed in general above,

the BAT rules are

ambiguous as to

whether BATs are alternatives or sequences.

The

Board is generally construing BATs as alternatives, unless

otherwise indicated.

With respect to the organic BATS, although

USEPA has actually worded the BATs as sequences, there are other

factors which make it clear that USEPA means alternatives.’

The introduction provides that BAT is “either

...

(GAC),

(PTA),

or both”.

The rule then provides a table,

with columns

for “GAC” and “PTA”.

For vinyl chloride, only “PTA”

is checked.

For 14 contaminants (mostly pesticides and PCB5), only “GAC”

is

term at all, and still does not.

13 1—135

---

68

checked.

For 19~contaminants, both “GAC” and “PTA” are checked.

The USEPA rule is ambiguous for the contaminants for which both

columns are checked:

does this mean either GAC or PTA, or both?

If USEPA means “both”, this represents a substantive change with

respect to seven of the original eight VOC5, which were clearly

alternatives.

In addition, USEPA appears to have calculated the

compliance costs using “GAC or

PTA”.

(56 Fed. Reg. 3556.

The

Board therefore believes that the “or both” in

the

introduction

is intended simply to negate any implication that PWSs are

somehow prohibited from using both GAC and

PTA.

The Board has

proposed to omit it as misleading, but solicits comment.

If

commenters believe that both GAC and

PTA

are required for certain

contaminants, they need to identify those contaminants.

The Board has proposed a Table similar to USEPA’s.

The

Board has proposed, however, to replace the “Xs” columns with a

single

column

with the entry “GAC”,

“PTA”, or “GAC,

PTA”.

This

format is simpler and easier to understand.

It would also allow

a simple addition of an entry for “GAC and PTA” if needed.

BATs:

Central Treatment?

611.311(b))

Old 40 CFR 141.61(b) was specific that BAT was “central

treatment” using PTA or GAC.

This correlates with 40 CFR 141.100

and 141.101

611.280

and611.290,

which limit the use of non—

centralized treatment.

USEPA has dropped this limitation.

The

Board solicits comment as to whether this was an error by USEPA,

and as to whether the Board ought to retain this limitation.

SUBPART

L:

MICROBIOLOGICAL MONITORING

Section 611.526

This Section

is derived from 40

CFR

141.21(f), which was

amended at 56 Fed. Reg.

636, January 8,

1991, and at 57 Fed. Reg.

1850, January 15,

1992.

The Section specifies analytical methods

for microbiological contaminants.

The amendments concern

approval of the “MMO-MUG” test, which was the main topic of R90-

21.

As noted above, the Board has included the January 15,

1992,

Federal Register approval of new uses of the MMO-MUG test in this

Docket, even though it is outside

the

scope of this Update.

Both

the Agency and the manufacturer of the test reagent asked the

Board to approve these new uses in this Docket.

The Board has

proposed to do so, since these new uses appear to represent a

9These numbers do not add up to the total number of

contaminants regulated, since,

as discussed above, USEPA has

adopted BATs for several contaminants for which there is no

revised MCL.

131—136

---

69

simpler test method,

and since it poses no problems in getting

this Proposal out.

The

MMO-MUG

test reagent is now manufactured by

Environetics, Inc., which was ‘formerly Access Analytical Systems.

As discussed above, the Board has changed the name in the

incorporations by reference portion of these rules (611.102).

As was discussed in R90-21, following adoption of R88-26,

the Boaçd received requests from Environetics and the Agency for

approval of the “MMO-MUG” test for total coliform.

(PC 1,

3 and

5 in R90-21).

This rulemaking extends this approval to include

E.

coli.

The January 15,

1992,

action extends approval to

include E. coli negative results.

In R90-21, the Board added the “MMO-MUG” test for total

coliform as Section 611.526(c)(4).

However, the Board noted that

the July 17,

1989,, Federal Register, which the commenters cited

as the source of USEPA’s approval of the MMO-MLJG test,

amended

federal rules which had been repealed on June 29,

1989.

(R90—21

Opinion,

p.

3-5)

Because the base text for the amendment had

been repealed, and was not present in the Board rules,

it was

difficult to place the approval into the Board rule.

The January

8,

1991,’ amendments are much different than the

July 17,

1989 “approval”.

For one thing, they are amending

language which is still present in the USEPA and Board rules.

The amendments also specify conditions of the test,

and what

constitutes a positive result, details which are totally lacking

in the earlier “approval”.

Furthermore, the “MMO—MUG” test is

presented not as a totally new analytical method, but as

a

alternative way of performing the MTF, MF and P-A tests.

This is

more consistent with the way the tests are presented in the

documentation supplied by Access

in R90-21.

As adopted on January

8,

1991, the amendments were to 40 CFR

141.21(f). (5) and

(6)

611.526(e)

and

(f)).

However, the January

15,

1992, amendments added a new

(f) (6)

((f),

bumping the old

(6)

(f)

to

(7)

(g).

The ensuing discussion uses the new

numbering.

The Board has proposed to make a

number

of minor editorial

corrections to Section 611.526(e),

(f) and

(g).

These are

discussed as follows.

40 CFR ‘141.21(e)

-

(g) are worded as “Public water systems

must...”

However, as discussed above,

“supplier”

is the term for

the owner or operator of a PWS.

40 CFR 141.21(f) defines

“MUG”

as an acronym, and uses two

metric units which need to be defined (“ug” for “microgram” and

“nm” for”nanometer”).

The Board has defined these above in

131—137

---

70

Section 611.102.

“MUG” is implicitly defined in the name of the

“MMO-MUG” test in Section 611.103, but is now used as a stand-

alone term in these subsections.

The second sentence of 40 CFR 141.21(f)(5)

611.526(e)

formerly read:

“.

.

.

shake the lactose—positive tube or P-A

bottle...”

The USEPA amendment has dropped the word “bottle”.

The Board takes this to be a typo, and has proposed to retain it

in Section 611.5,26(e) (1).

The third sentence of 40 CFR 141.21(f) (5)

refers to “EPA-

approved analytical methods...”

In R88—26, the Board replaced

this with a reference to “Microbiological Methods”,

a shortened

name for the EPA analytical methods.

The USEPA rule includes repeated long references to the 16th

Edition of “Standard Methods for the Examination of Waste and

Wastewaten”

(“Standard Methods”).

In R88-26, the Board placed

the complete library references in Section 611.103, along with

definitions of shorter names for these documents.

The Board has

continued to follow this format in these amendments.

40 CFR 14l.21(f)(8)(ii)

611.526(g)(2))

includes a new

reference to the method of preparing “nutrient agar”.

The Board

has replaced the page number reference to Standard Methods with

the Method number, to be consistent with,other references.

This

is in Method 908C.

40 CFR 141.21(f) (7), as adopted on January 15,

1992, appears

to have a cross reference error.

The reference to “(f) (6) (‘i)”

probably should be to “(f) (8) (i)”~as renumbered

611.

626(g) (1).

The Board has proposed to correct this apparent error, but

solicits comment.

40 CFR 141.21(f) was also amended to change the Federal

Register incorporation by reference statement.

This has no State

equivalent.

Incorporations by reference are in Section 611.103.

131—138

---

71

SUBPART N:

INORGANIC MONITORING

This Subpart specifies the monitoring and analytical

requirements for inorganic chemicals.

Most of the Subpart is

drawn from 40 CFR 141.23, which was amended at 56 Fed. Reg.

3578,

January 30,

1991.

The amendments involve virtually a complete

replacement of the text of Section 141.23.

Because of the size

of the new text,

it is necessary to move other Sections out of

the way.

For some of the parameters involved in this Subpart, the

Board may have existing monitoring requirements which are

arguably “more stringent” than the USEPA requirements, for

example,

in the sense of requiring more frequent sampling.

As is

discussed in general above, the Board makes the stringency

comparison with respect to the MCL5,

and then adopts the

monitoring requirements associated with the more stringent MCL.

Section 611.591 and

611.592

The contents of Section

611.602 and 611.603 have been moved

here to accommodate the larger text corresponding to 40 CFR

141.23, which will occupy Section 611.600 et seq.

These are

“additional State requirements”.

Section 611.600

Applicability

This new Section is drawn from the introduction to 40 CFR

141.23, which reads as follows:

Community water systems shall conduct monitoring to

determine compliance with the maximum contaminant

levels specified in §141.62 in accordance with this

section.

Non—transient, non—community water systems

shall conduct monitoring to determine compliance with

the maximum contaminant levels in §141.62 in accordance

with this section.

Transient, non—community water

systems shall conduct monitoring to determine

compliance with the nitrate and nitrite maximum

contaminant levels in §141.11 and S141.62

(as

appropriate)

in accordance with this section.

The USEPA applicability statement is amazingly complex.

The

Board has proposed to simplify this provision by deferring to the

NCL5 as to their respective applicability, and by blocking

repeated language together.

This is easier set out in full than

explained:

Section 611.600

Applicability

The following types of

CWS

suppliers shall conduct

131—139

---

72

monitoring to determine compliance with the NCL5 in

Section 611.300 and 611.301,

as appropriate,

in

accordance with this Subpart:

a)

CWS suppliers.

b)

NTNCWS suppliers.

C)

Transient, non—CWS suppliers to determine

compliance with the nitrate and nitrite MCL5.

Definitions

611.600

40 CFR 141.23(a) (1) and

(2), et seq., use the terms

“groundwater systems” and “surface water systems”, which are

implicitly defined in a note following the subsections.

As

is

discussed in ‘general above, the Board has proposed,

in Section

611.600(d),

definitions which are consistent with the notes, and

with the actual usage of the terms

in this Subpart.

The

definitions are as follows:

“GWS” means “groundwater system”, a PWS which uses only

groundwater sources.

“Mixed system” means’ a PWS which uses both groundwater

and surface water sources.

“SWS” means “surface water system”,

a PWS which uses

only surface water sources, including “groundwater

under the direct influence of surface water”, as

defined in Section 611.102.

The averaging rule, Section 611.608, includes a reference to

“detection limits”.

The Board believes that this is defined by

implication in 40 CFR 141.23(a) (4) (i), an optional provision

dealing with composite samples, which the Board is not proposing’

to adopt.

The Board has proposed the table of detection limits

as a definition in this Section.

The Board solicits comment.

In Section 611.101 above, the Board has proposed a

definition for “NFL”, the units of measure for asbestos (millions

of fibers per liter larger than 10 micrometers).

Several of the following Sections use the term “reliably and

consistently” in connection with “waivers” of monitoring

provisions.

The Board has proposed a definition, which is

discussed in general above,

for use in this Subpart:

“Reliably and consistently” below a specified level for

a contaminant means that:

Levels are below the specified level;

131—140

---

73

The distribution of data is such that it is

unlikely that future individual measurements will

exceed the specified level unless the long term

average increases;

The data does not show an upward trend toward the

specified level;

and

There are no factors which show that the source is

vulnerable to the contaminant.

Section 611.601

Sampling Points

This Section is drawn from 40 CFR 141.23(a), which was

replaced at 56 Fed. Reg.

3578, January 30,

1991.

This specifies

sampling locations and the date of the initial sampling.

The

essential provisions read as follows:

1)

Groundwater systems shall take a minimum of one

sample at every entry point to the distribution system

which is representative of each well after treatment

(hereafter called a sampling point) beginning in the

compliance period starting January

1, 1993.

The system

shall take each sample at the same sampling point

unless conditions make another sampling point more

representative of each source or treatment plant.

2)

Surface water systems shall take a minimum of one

sample at every entry point to the distribution system

after any application of treatment or in the

distribution system at a point which is representative

of each source after treatment (hereafter called a

sampling point) beginning in the compliance period

beginning January

1,

1993.

The system shall take each

sample at the same sampling point unless conditions

make another sampling point more representative of each

source or treatment plant.’

3)

If a system draws water from more than one source

and the sources are combined before distribution, the

system must sample at an entry point to the

distribution system during periods of normal operating

conditions

(i.e., when water is representative of all

sources being used).

There are quite a few difficulties with this language, which

are discussed in general above.

The Board has proposed the

‘Following 40 CFR 141.23 (a) (2)

is a note which defines “SWS”

and “GWS” by implication.

This appears by way of the definitions

of these terms discussed above in Section 611.600(d).

131—14 1

---

74

following language as Section 611.601(a)

—

(c):

a)

Definitions.

As used in this Section:

“Distribution system” includes all points

downstream of an “entry point”.

“Entry point” means a point just downstream

of the final treatment operation, but

upstream of the first user and upstream of

any mixing with other water.

If raw water is

used without treatment,

the “entry point” is

the raw water source.

If a PWS receives

treated water from another PWS, the “entry

point” is a point just downstream of the

other PWS, but upstream of the first user on

the PWS, and upstream of any mixing with

other water.

“GWS” is as defined in Section 611.600.

“Mixed system” is as defined in Section

611. 600.

“Representative” means that a sample is

expected to reflect the properties of water

averaged over the period of time and portion

of the PWS to be sampled.

To be

representative,

a sample must be taken under

normal seasonal operating conditions.

“Source” means

a well,

reservoir or other

source of raw water.

“SWS”

is as defined in Section 611.600.

“Treatment” means any process:

which changes

the physical or chemical properties of water;

which is under the control of the supplier;

and, which is not a “point of use” or “point

of entry treatment device” as defined in

Section 611.101.

“Treatment” includes, but

is not limited to:

aeration, coagulation,

sedimentation, filtration,

activated carbon,

chlorination and fluoridation.

b)

Required sampling.

Each supplier shall take a

minimum of one sample at each sampling point at

the times required in Section 611.610.

Each

sampling point must be “representative.”

The

total

number

of sampling points must be

representative of the water delivered to users

131—142

---

75

throughout the system.

c)

Sampling points.

1)

Sampling points for GWSs.

Unless otherwise

provided by SEP, the following are the

sampling points for GWS5:

Each entry point.

2)

Sampling points for SWSs and mixed systems.

Unless otherwise provided by SEP, the

following are sampling points for SWSs and

mixed systems:

A)

Each entry point;

or

B)

Points in the distribution system.

3)

Additional sampling points.

The Agency

shall, by SEP, designate additional sampling

points in the distribution system or at the

consumer’s tap if it determines that such

samples are necessary to more accurately

determine consumer exposure.

4)

Alternative sampling points.

The Agency

shall, by SEP, approve alternate sampling

points

if the supplier demonstrates that the

points are more representative than the

generally required point.

The proposed rules on sampling points are very similar to

Section 611.646(a)

-

(c), below.

A discussion of the rules

appears below.

Compositing

611.601(d)

40 CFR 141.23(a) (4)

is a complex, optional provision which

allows the State to allow compositing of samples.

As is

discussed in general above, ‘the Board is not proposing to adopt

an equivalent.2

40 CFR 141.23(a) (4) (i)

includes a definition of “detection

level” which appears to apply outside the compositing provisions.

The Board has proposed this definition in Section 611.600,

above.

Index

611.601(e)

2The Board has marked the ,hole,

in Section 611.601 (d), with

a do-nothing cross reference to Section 611.100(e),

which

explains that some subsection labels are omitted to preserve

correspondence with federal numbering.

131—143

---

76

40 CFR 141.23(a) (5)

serves as an index to the ensuing

subsections.

It reads as follows:

5)

The frequency of monitoring for asbestos shall be

in accordance with paragraph

(b)

of this section; the

frequency of monitoring for barium,

cadmium,

chromium,

fluoride, mercury, and selenium shall be in accordance

with paragraph

(c)

of this section; the frequency of

monitoring for nitrate shall be in accordance with

paragraph

(d) of this section; and the frequency of

monltoring for nitrite shall be in accordance with

paragraph

(e) of this section.

This subsection would be totally unnecessary if this Section

were organized differently.

However, the Board has attempted to

retain as much of the USEPA structure as possible.

In Section

611.601(e),

the Board has consolidated repeated language into the

introduction, and separated the variables into subsections:

e)

The frequency of monitoring for the following

contaminants must be in accordance with the

indicated Sections:

1)

Asbestos, Section 611.602;

2)

Barium,

cadmium, chromium,, fluoride, mercury

and selenium, Section 611.603;

3)

Nitrate, Section 611.604; and

4)

Nitrite, Section 611.605.

Section 611.602

Asbestos Monitoring Frequency

This new Section is drawn from 40 CFR 141.23

(b), which was

amended at 56 Fed. Reg. 3578,

January 30,

1991.

This Section

deals with frequency of monitoring for asbestos.3

Introduction

611.

6021

The introduction to 40

CFR

141.23(b) reads as follows:

The frequency of monitoring conducted to determine

compliance with the ‘maximum contaminant level for

asbestos specified in §141.62(b)

shall

be conducted as

follows:

The Board has proposed to correct this typo by deleting the

second “conducted”.

This would make Section 611.602 consistent

3Old Section 611.602 has been renumbered to Section 611.591.

131—144

---

77

with the ensuing Sections.

The frequency of monitoring conducted’ to determine

compliance with the MCL for asbestos in Section 611.301

is as follows:...

Compliance Cycle Monitoring

611.602(a)

This subsection is drawn from 40 CFR 141.23(b) (1):

(1)

Each community and non—transient, non-community

water system is required to monitor for asbestos during

the first three—year compliance period of each nine-

year.compliance cycle beginning in the compliance

period starting January

1,

1993.

Asbestos monitoring is required during the first (three

year)

“compliance period” of each

(nine year)

“compliance cycle”.

As is discussed in general above, the Board has substituted the

terms defined in Section 611.101.

As is discussed in general

above, the Board assumes that all of the monitoring and related

“waivers” are to fit into the cycles and periods set forth in the

definitions.

There is perhaps adeeper problem with this provision:

it

requires not just a single sample every nine years,

but also that

the sample be taken during the first compliance period of the

nine year cycle.

The Board has proposed to follow this language

However,

it may pose two types of problems.

First,

it may be

inefficient for laboratories to deal with asbestos samples in a

large batch every nine years.

Second, when linked with the

language governing the term of “waivers”, discussed below,

it

creates an ambiguity as to whether “waivers” are for three or

nine years.

The Board solicits comment.

The Board has proposed the following language as equivalent

to 40 CFR l41.23(b)(1)

611.602(a):

Unless the Agency has determined under subsection

(c)

that the PWS is not vulnerable,

each

CWS

and NTNCWS

supplier shall monitor for asbestos during the first

compliance period of each compliance cycle, beginning

January

1,

1993.

“Adlustments” of Asbestos Monitoring

611.602(b)

-

(d)1

Editorial Problems

40 CFR l41.23(b)(2)-(4)

deal with “waivers” of the asbestos

monitoring requirement, which read as follows:

(2)

If the system believes it is not vulnerable to

either asbestos contamination in its source water or

131—145

---

78

due to corrosion of asbestos—cement pipe, or both,

it

may apply to the State for a waiver of the monitoring

requirement in paragraph

(b) (1)

of this section.

If

the State grants the waiver, the system is not required

to monitor.

(3)

The State may grant a waiver based on a

consideration of the following factors:

(1)

Potential asbestos contamination of the water

sou~ce,and

(ii)

The use of asbestos-cement pipe for finished

water distribution and the corrosive nature of the

water.

(4)

A waiver remains in effect until the completion of

the three—year compliance period.

Systems not

receiving a waiver must monitor in accordance with the

provisions of paragraph

(b) (1)

of this section.

There are a large number of editorial problems with these

provisions, which are discussed below.

Application for Asbestos Adiustment

611.602(b)1

The first problem is that 40 CFR 141.23(b) (2)

is written as

a subjective precondition to the filing of the request for the

adjustment,

rather than as an objective standard for State action

on the request.

For the reasons discussed in general above, the

Board has proposed this as an open authorization to apply, and an

objective standard for State action.

Section 611.602(b)

contains

the authorization to apply:

CWS suppliers may apply to the Agency, by way of an

application for a SEP under Section 611.110, for a

determination that the

CWS

is not vulnerable.

Standard for Grant of Asbestos Adiustment 1611.602(c)

The standard for the grant of the asbestos “waiver”

is

in 40

CFR 141.23(b) (2) and

(3).

As discussed above, the Board is

combinIng the standards in these two paragraphs into a single,

objective standard for State action.

It is usually easy to convert a subjective precondition to

filing into an objective standard for State action on the

request.

However, this leads us to two more editorial problems:

the wording of the standard, and how to fit it in with the

standard in 40 CFR 141.23(b) (3).

The standard if subsection

(b) (2)

is worded as follows:

13 1—146

---

79

“If the system

...

is not vulnerable to either asbestos

contamination in its source water or due to corrosion

of asbestos—cement pipe,

or both...”

The first wording problem is the placement of “either”.

This makes the second condition read “not vulnerable to

...

due

to corrosion”, depriving “to” of its object.

This can be

‘represented as:

“not vulnerable due to A or B, or both”.

This

suggests that there are three types of showings the supply could

make:

“not A”,

“not B” or “not A and not B”.

In other words,

a

supply w~.thasbestos pipe could obtain ~ “waiver” by

demonstrating that there is no potential for contamination in its

source water.

This is clearly an error by USEPA.

The Board has

therefore proposed to delete the “or both”.

As proposed by the Board, the standard for approval

611.602(c)

is as follows:

The Agency shall determine that the

CWS

is “not

vulnerable”

if the

CWS

is not vulnerable to

contamination either from asbestos in its source water

or from corrosion of asbestos—cement pipe...

This now leads us to the next editorial problem:

where to

put the standard.

The next subsection,

40 CFR 141.23(b) (3),

reads as follows:

(3)

The State may grant a waiver based on a

consideration of the following factors:

(i)

Potential asbestos contamination of the water

source, and

(ii)

The use of asbestos—cement pipe for finished

water distribution and the corrosive nature of the

water.

This is worded as a grant based on a “consideration” of

factors.

This type of USEPA rule is discussed in general above.

The Board has combined the “considerations” with the standard,

discussed above.

The next editorial problem is the form of the

“considerations”.

As written these are stated as

A

and

(B and

C).

Normally this would be equivalent to

(A and B and C:

1)

Potential asbestos contamination of the water

source;

and

2)

The use of asbestos—cement pipe for finished water

distribution;

and

131—147

---

80

3)

The corrosive nature of the water.

However, corrosivity and the use of asbestos pipe are linked

factors,

in that asbestos pipe is a problem only if water is

corrosive.

The Board has therefore proposed the following

language, linking these factors:

The State may grant an adjustment based on of the

following factors:

1)

Potential asbestos contamination of the water

source; and

2)

If the water is corrosive, the use of

asbestos-cement pipe for finished water

distribution.

The Board solicits comment as to whether the USEPA rule

intends this type of linkage.

Effect and Conditions of the Asbestos Adjustment

(611.602(d)

40 CFR 141.23(b) (4)

reads as follows:

(4)

A waiver remains in effect until the completion of

the three—year compliance period.

Systems not

receiving a waiver must monitor in accordance with the

provisions of paragraph

(b) (1)

of this section.

The next editorial problem is the repetition of the

monitoring requirement and the effect of the grant of a “waiver”.

40 CFR 141.23(b) (1)

provides:

“Each

CWS...

is required to

monitor...”

Subsection

(b)(2)

then says:

“If the State grants

the waiver,

the system is not required to monitor.”

Subsection

(b) (4) then states:

“Systems not receiving a waiver must

monitor...”

The Board has proposed to state the effect of the

“waiver” just once, and has placed it in Section 611.602 (a)

(discussed above).

The next problem is the provision that a “waiver” remains in

effect until the completion of the three—year “compliance

period”.

As written, this means that the “waiver” is essentially

until the end of the (nine year)

“compliance cycle”.

In other

words,

if a “waiver” is granted for the first period, no

additional “waiver”,

or monitoring would be required until the

first period of the next cycle, nine years later.4

~‘

The Board

4Alternatively,

it would be possible to read the specific

three-year limitation as imposing the asbestos monitoring in the

second period, unless another waiver is granted.

131—148

---

81

has proposed to allow adjustments for nine years, but solicits

comment as to whether the other reading might be correct.

Procedures for Asbestos “Adjustments”

1611.602(b)

—

(d)1

This brings to a conclusion the discussion of editorial

problems with 40 CFR 141.23(b) (2)

-

(4).

The next problems

concern how to translate the USEPA language into State law.

40

CFR 141.23(b) (3) provides that:

“The State may grant a

waiver...”

A general discussion of the factors the Board

consider~in deciding how the State makes this type of decision

is presented in the introduction to this Opinion.

The Board has determined that the USEPA provision does not

amount to a waiver for which Board action would be required.

The

“waiver” does not release the supply from the permit requirement,

or from the NCL.

Rather, the supply makes an alternative

demonstration which shows that compliance with the asbestos

standard is likely,

so that routine monitoring need not be

conducted.

This is strictly a technical showing of

a type the

Agency typically makes

in the context of permit issuance.

Furthermore, the “SEP”

of Section 611.110 provides an appropriate

procedural vehicle for this type of Agency decision.

The Board

solicits comment.

Proposed Lanquage Concerning Asbestos Adjustments

611.602(a)

-

(d)

The language proposed by the Board is set forth as follows:

The frequency of monitoring conducted to determine

compliance with the MCL for asbestos in Section 611.301

is as follows:

a)

Unless the Agency has determined under subsection

(c) that the system is not vulnerable, each CWS

and NTNCWS supplier shall monitor for asbestos

during the first compliance period of each

compliance cycle,

beginning January

1,

1993.

b)

CWS suppliers may apply to the Agency, by way of

an application for a SEP under Section 611.110,

for a determination that the

CWS

is not

vulnerable.

c)

The Agency shall determine that the

CWS

is “not

vulnerable” if the

CWS

is not vulnerable to

contamination either from asbestos in its source

5As

is discussed above, the Board is substituting the

defined terms “compliance period” and “compliance cycle”.

131—149

---

82

water or from corrosion of asbestos—cement pipe,

based on a consideration of the following factors:

1)

Potential asbestos contamination of the water

source;

and

2)

If the water is corrosive,

the use of

asbestos—cement pipe for finished water

distribution.

d)

A determination that a

CWS

is not vulnerable

expires at the end of the compliance cycle for

which it was issued.

Monitoring Locations for Asbestos

611.602(e)

-

(f)1

40 CFR 141.23(b) (5)

—

(7)

(Section 611.602(e)

—

(g)J specify

the monitoring locations for systems which are vulnerable because

of pipe,

source water or both.

Subsection

(b)(6)

(f)

requires

systems vulnerable solely because of source water to monitor in

accordance with “paragraph

(a)”, which corresponds with Section

611.601.6

The proposed language is as follows:

e)

A supplier of a PWS vulnerable to asbestos

contamination due solely’ to corrosion of

asbestos—cement pipe shall take one sample at a

tap served by asbestos—cement pipe and under

conditions where asbestos contamination is most

likely to occur.

f)

A supplier of a PWS vulnerable to asbestos

contamination due solely to source water shall

monitor in accordance with Section 611.601.

g)

A supplier of a PWS vulnerable to asbestos

contamination due both to its source water supply

and corrosion of asbestos—cement pipe shall take

one sample at a tap served by asbestos—cement pipe

and under conditions where asbestos contamination

is most likely to occur.

Monitoring Following MCL Violation

1611.602(h))

Quarterly Monitoring

6This appears to make sense.

However,

it raises a question

as to the overall structure of the rule.

Paragraph

(a) appears

to apply to monitoring for all contaminants anyway.

Is this

reference mere surplusage, or are the systems with pipe problems

supposed to comply with the alternatives instead of paragraph

(a)?

Where does

it

say this?

The Board solicits comment.

131—150

---

83

40 CFR l41.23(b)(8)

Section

611.602(h)

requires quarterly

monitoring beginning the next quarter after a violation of the

asbestos MCL is found pursuant to compliance cycle monitoring:

8)

A system which exceeds the maximum contaminant

levels as determined in §141.23(i) of this section

shall monitor quarterly beginning in the next quarter

after the violation occurred.

As written

this requires a violation of all the MCL5 before

quarterl~ymonitoring.

In addition to the problems discussed in

general above, this subsection is really addressing

a single

parameter:

asbestos.

The USEPA rule cites to the averaging rule.

At first sight

this appears to be an example of a “trigger” provision which

relies on the averaging rule,

contrary to the general rule

discussed above.

However,

since most suppliers are on annual or

less frequent monitoring,

and since there

is no averaging for’

such samples,

a single sample is still sufficient to trigger

quarterly monitoring.

The USEPA rule is written as a self-implementing provision

which automatically requires the supplier to take quarterly

samples after exceeding the MCL.

The Board has followed the

USEPA text and proposed to adopt this without referencing a

procedure 611.602

(h)):

A supplier which exceeds the MCL, as determined in

Section 611.609, shall monitor quarterly beginning in

the next quarter after the violation occurred.

Reduction In Quarterly Monitoring

611.602(i)

40 CFR l41.23(b)(9)

Section

611.602(i)) allows the State to

reduce monitoring frequency to less than quarterly, as follows:

9)

The State may decrease the quarterly monitoring

requirement to the frequency specified in paragraph

(b) (1)

of this section provided the State has

determined that the system is reliably and consistently

below the maximum contaminant level.

In no case can a

State make this determination unless a groundwater

system takes a minimum of two quarterly samples and a

surface (or combined surface/ground)

water system takes

a minimum of four quarterly samples.

(40 CFR

141.23(b) (9)

Board or Agency?

611.602(i)

The first question is:

which agency, the Board or Agency,

is empowered to make this decision?

The general factors which

131—15 1

---

84

the Board considers are discussed above.

The frequency of monitoring is generally specified by the

Agency in comprehensive permits, acting pursuant to Board

regulations, such as 35 Ill.

Adm.

Code 309.146 and 724.197.

In

such systems it is common for the Agency to specify increased

monitoring following a violation, and to allow decreased

monitoring after the permittee has come into compliance again.

Although the PWS program lacks a comprehensive permit,

it

includes the “SEP”.

The Board has therefore determined that the

decrease’ in monitoring frequency is within the Agency’s

authority,

and that the reduction should be by SEP.

The Board

solicits comment.

Standard for Agency Action

611.602(i)

40 CFR 141.23(b) (9) has the “reliably and consistently”

language which is discussed in general above.

The

Board has

defined the term in Section 611.600, for use in this Subpart.

The proposed language below depends on that definition.

40 CFR 141.23(b) (9) does not have the “Catch—22” problem

discussed in general above, because the provision is ~triggeredby

an NCL violation.

However, the Board has proposed that the

Agency should establish1 by SEP, when making the “reliably and

consistently” determination,

a specific trigger which would

require a return to quarterly monitoring.

Proposed Rule on Adjustments of Quarterly Monitoring Following

Violation

611.602(i)

The Board has proposed the following equivalent for 40 CFR

141.23(b)(9)

611.602(i):

i)

Reduction of quarterly monitoring.

1)

A supplier may request that the Agency reduce

the monitoring frequency to annual.

The

request must be by way of a SEP application

pursuant to Section 611.110.

2)

The request must include the following

minimal information:

A)

For a GWS, two quarterly samples.

B)

For an SWS or mixed system,

four

quarterly samples.

3)

The Agency shall, by SEP, allow annual

monitoring at a sampling point,

if it

determines that the sampling point

is

13 1—152

---

85

reliably and consistently below the MCL.

4)

In issuing the SEP, the Agency shall specify:

A)

The level of the contaminant upon which

the “reliably and consistently”

determination was based;

and

B)

The level of the contaminant which,

if

exceeded in any one sample, would cause

the supplier to reir~itiatequarterly

monitoring.

Use of Previous Data

(611.602(j)

40 CFR 141.23(b) (10) allows the use of past data for the

first compliance period:

10)

If monitoring data collected after January

1,

1990

are generally consistent with the requirements of

Section 141.23(b), then the State may allow systems to

use that data to satisfy the monitoring requirement for

the initial compliance period beginning January

1,

1993.

This Section allows the State to authorize the use of past

data.

As is discussed in general above, the Board has proposed

to’ allow only data which has been collected pursuant to Agency

sample requests since the USEPA rules were published.

The

proposed rule is as follows 611.602(j):

Data collected after January 30,

1991,

but prior to the

effective date of this Section, pursuant to Agency

sample request letters, are deemed to meet the

requirements of this Section,

if the data are

consistent with 40 CFR 141.23.

The Board solicits comment as to whether there might be

other types of prior data which should be allowed.

Section 611.603

Inorganic Monitoring Frequency

This new Section is drawn from 40 CFR 141.23(c), which was

adopted at 56 Fed. Reg.

3578, January 30,

1991.

It specifies the

monitoring frequency for barium,

cadmium, chromium, fluoride,

mercury and selenium.7

The issues concerning this Section are

similar to those concerning Section 611.602,

above.

Introduction

1611. 603)

7Old Section 611.603 has been moved to Section 611.592.

13 1—153

---

86

This Section specifies monitoring frequencies for barium,

cadmium,

chromium, fluoride, mercury and selenium, which have

revised8 MCL5 in Section 611.301.

Number of Samples fSection611.603(a))

This subsection is

drawn

from 40 CFR 141.23(c) (1):

(1)

Groundwater systems shall take one sample at each

sampling point during each compliance period beginning

in

the

compliance period starting January 1,

1993.

Surface water systems (or combined surface/ground)

shall take one sample annually at each sampling point

beginning January 1,

1993.

The terms “SWS” and “GWS”,

etc. are defined above.

This is

more simply stated, using defined terms.

The proposed language

appears below.

The comparable provision discussed above, concerning

asbestos,

is careful to specify that the monitoring applies only

to CWS5 and NTNCWS5.

40 CFR 141.23(c)

is stated as applying to

all “systems”, which the Board takes to mean “PWSs”.

The Board

has above substituted the defined term “supplier”, meaning the

owner or operator of a “PWS”.

However, the MCL5 for these

contaminants in 40 CFR 141.62

611.301

apply only to CWS5.9

The

Board has therefore specified “CWS supplier” in connection with

these monitoring requirements.

After the initial statement of

applicability, the Board has proposed to simply use “supplier”.

The Board solicits comment.

The proposed language on number of samples is as follows

(611.603(a):

CWS suppliers shall take,

at each sampling point

beginning January

1,

1993, as follows:

1)

For GWSs,

one sample during each compliance

period;

2)

For SWSs and mixed systems, one sample each year.

“Adjustment” Provisions ISection 611.603(b)

et seal

8As is discussed above,

“revised MCL” is a term of art in

the USEPA rules.

It does not necessarily mean that the numerical

value of the MCL has changed.

9Although the Board assumes that the scope of monitoring is

equivalent to the scope of the MCLS,

there appears to be no

general rule so stating.

131—154

---

87

40CFR 141.23(c) (2)

—

(6) allow States to grant “waivers” of

the monitoring requirements for the MCLs for barium,

cadmium,

chromium,

fluoride, mercury and selenium.

The USEPA provisions

are as follows:

(2)

The system may apply to the State for a waiver

from, the monitoring frequencies specified in

paragraph

(c) (1)

of this section.

(3)~ A condition of the waiver shall require that a

system shall take a minimum of one sample while ‘the

waiver is effective.

The term during which the waiver

is effective shall not exceed one compliance cycle

(i.e., nine years).

(4)

The State may grant a waiver provided surface

water systems have monitored annually for at least

three years and groundwater systems have conducted a

minimum

of three rounds of monitoring.

(At least one

sample shall have been taken since January

1,

1990.)

Both surface and groundwater systems shall demonstrate

that all previous analytical results were less than the

maximum contaminant level.

Systems that use a new

water source are not eligible for a waiver until three

rounds of monitoring’ from the new source have been

completed.

(5)

In determining the appropriate reduced monitoring

frequency, the State shall consider:

(i)

Reported concentrations from all previous

monitoring;

(ii)

The degree of variation in reported

concentrations; and

(iii)

Other factors which may affect contaminant

concentrations such as changes in groundwater pumping

rates,

changes in the system’s configuration, changes

in the system’s operating procedures, or changes in

stream flows or characteristics.

(6)

A decision by the State to grant a waiver shall be

made in writing and shall set forth the basis for the

determination.

The determination may be initiated by

the State or upon an application by the public water

system.

The public water system shall specify the

basis for its request.

The State shall review and,

where appropriate, revise its determination of the

appropriate monitoring frequency when the system

submits new monitoring data or when other data relevant

to the system’s appropriate monitoring frequency become

131—155

---

88

available.

Board or Agency Action?

The general factors which the Board considers in deciding

which agency is to make decisions are discussed above.

Decisions

specifying monitoring frequencies are traditional Agency permit

actions.

The Board has proposed to have the Agency make these

decisions pursuant to a “SEP” under Section 611.110.

The Board

solicits comment.

Editorial Problems

(611.603(b) et seq.)

These USEPA provisions lack the gross editorial errors

discussed above in connection with asbestos monitoring.

Rather,

most of the changes are just to eliminate redundancies and use

defined terms.

The main editorial problem with 40 CFR 141.23(c) (2)

-

(6)

is

its scrambled order.’° This would be much easier to use if it

were in the chronological order in which the provisions would

ordinarily arise in a proceeding:

Application, Procedures,

Standard for action, Standard for conditions,

Conditions,

and

Revision.

The Board has proposed to rearrange” these

provisions.

The proposed’ language appears below.

40 CFR 141.23(c) (2) and

(6) specify application

requirements.

These have been consolidated into Section

611.603(b).

40 CFR 141.23(c) (6) allows the State to initiate the

“waiver” process.

As is discussed above

in connection with SEP5,

the Agency can sometimes reopen a SEP.

40 CFR 141.23(c) (6) requires State determinations on

“waivers” to be in writing with a statement of basis.

In Section

611.603(c),

the Board has proposed to replace these detailed

requirements with a reference to the SEP procedures.

Section

39(a)

of the Act, together with Section 611.110, require SEPs to

be in writing, with a statement of basis.

40 CFR 141.23(c) (4)

sets forth the standard for the grant of

a “waiver”.

This has been rearranged in Section 611.603(d).

The

‘°The

order of the USEPA

rule is:

Application, Conditions,

Standard for action, Standard for conditions,

Procedures,

Application and Revision.

“This destroys the simple correspondence between the Board

and USEPA rules.

The Board has inserted “Board Notes” to alert

readers as to the source of each subsection.

131—156

---

89

basic standard is the demonstration “that all previous analytical

results were less than the NCL.”

The Board has moved this to the

front.

The remainder of the text appears to be specifying

minimal data requirements for various types of

CWS.

These are

set forth as subsections

(d) (1)

—

(3).

There are some general

editorial problems which are discussed above.

The Board has

tried to restate these, using the terms defined above.’2

There are also some new editorial problems with 40 CFR

141.23(c) (4).

SWSs must have annual monitoring “for at least

three ye~rs”. This correlates with the annual monitoring

requirement in 40 CFR 141

•

23 (c) (1).

On the other hand,

the data

requirement for GWSs and “new” sources is “three rounds of

monitoring”.

This latter term is not defined, and does not

correlate with subsection

(c) (1), which requires only one sample

in each three year compliance period, such that at least seven

years would be required to accumulate the data under required

monitoring.’3

The Board solicits comment as to the meaning of

“rounds of monitoring”.

As is discussed in general above,

the special rule on “new

sources” appears to be surplusage, stating the result of the

general rule as applied in a special case.’4

The Board has

‘2The Board assumes that “groundwater system” means,

as

above,

a supplier using only groundwater.

‘3Alternatively,

“rounds of monitoring” may include more

frequent monitoring aimed solely at establishing

a

basis for the

“waiver”.

However, there appears to be no limitation on taking,

for example,

samples on three consecutive days.

Such closely

spaced samples would be much less representative of long—term

quality.

‘4The term “new water source”

is not defined, although it

evidently means a source which comes into use after the beginning

of the initial compliance period.

However, there may be no need

for this term.

The provision on new sources requires “three

rounds of monitoring”.

The new source is either strictly a

groundwater or an “other source”.

If it’s a groundwater source,

the rule is “three rounds of monitoring” anyway, whatever that

means.

If it’s an “other source”, the general rule would be

“annual monitoring for at least three years”.

The only

conceivable purpose of this provision would be to relax the data

rule for the “other sources” so as to treat them as GWS5,

possibly allowing them to take samples on consecutive days,

as

discussed below.

However, this would be extremely unreliable for

a SWS, which is apt to be subject to seasonal fluctuations.

More

likely,

this provision is just an afterthought to establish a

“minimal minimum” for the new sources.

,

The possible relaxation

of the general rule for SWS5 is probably an editorial error by

13

1—157

---

90

proposed to delete the special rule.

The alternative would be to

move it to an explanatory note.

The Board solicits comment.

40 CFR 141.23(c) (3) and

(5) contain the standards by which

the State is to decide how often the supplier must monitor if a

“waiver” is granted.

These are consolidated into Section

611.603(e).

The minimum is one sample during the life of the

adjustment, which can be no more than nine years,

as discussed

below.

However, the Agency can require more frequent monitoring,

based on factors set out in Section 611.603(e) (1)

-

(3).

40 CFR 141.23(c)(3)

Section

611.603(f) (1)

limits the term.

of a “waiver” to “one compliance cycle

(i.e.,

nine years)”.

As

is discussed in general above,

this is ambiguous.’5

As proposed

by the, Board in Section 611.603(f) (1), this reads:

The SEP will expire at the end of the compliance cycle

for which it was issued.

40 CFR 141.23 (c) (4) requires that “at least one sample have

been taken since January

1,

1990”.

This is discussed in general

above, under “previous data”.

This subsection differs from the

asbestos, and most other provisions, in that there is no general

prior data provision.

For these contaminants, the only

limitation is that,

to get a “waiver”, at least one sample must

have been taken prior to 1990.

This is apparently because most

of these revised MCLs had standards subject to USEPA monitoring

requirements prior this rulemaking:’

USEPA seems to be mandating

that the states accept this

type

of previous data.

The previous

data term therefore differs from that discussed in general.

40 CFR 141.23(c) (6)

includes a zipper clause which allows

the State to revise the monitoring frequency specified in a

“waiver” based on new monitoring data or other relevant

information.

The Board has proposed to place this in Section

USEPA.

‘5For example, could a

CWS

apply in year seven of a

compliance cycle for a waiver which would be issued in year

eight, but would apply during years. one through nine of the next

cycle?

In such a case the “waiver” would expire more than 9

years after issuance.

Alternatively, could a

CWS

apply for a

“waiver” in year five, which would last through year four of the

next cycle?

The latter alternative would appear to disrupt the

“compliance cycle” monitoring scheme set up by USEPA.

The

alternative,

in which “waivers” are keyed to the compliance

cycles,

is more consistent with that scheme.

It is also more

consistent with the wording of 40 CFR 141.23(b) (4), concerning

asbestos, discussed above, which is clearly keyed to the end of

the next compliance period.

13 1—158

---

91

611.603(f) (2), and to word it as a required condition of the SEP.

In this way the Agency will notify each

CWS

of the possibility of

reopening.

P’roposed Language on “Adjustments”

611.603

(b)

-

(f)

The proposed language on “adjustments”, drawn from 40 CFR

141.23(c) (2)

—

(6), is as follows:

b)

Application.

The supplier may apply to the Agency

for a reduction from the monitoring frequencies

specified in subsection

(a) by way of an

application for a SEP under Section 611.110.

BOARD

NOTE:

Drawn from 40 CFR 141.23(c) (2) and

(6),

as amended at 56 Fed. Reg. 3578, January 30,

1991.

c)

Procedures.

The Agency shall review the request

pursuant to the SEP procedures of Section 611.110.

BOARD

NOTE:

Drawn from 40 CFR 141

•

23 (c) (6),

as

amended at 56 Fed. Reg.

3578, January 30,

1991.

d)

Standard for reduction in monitoring.

The Agency

shall reduce the monitoring frequency if the

supplier demonstrates that all previous analytical

results were less than the NCL, provided the

supplier meets the following minimum data

requirements:

1)

For GWS suppliers,

a minimum of three rounds

of monitoring.

2)

For SWS and mixed system suppliers,

annual

monitoring for at least three years.

3)

At least one sample must have been taken

since January

1,

1990.

BOARD

NOTE:

Drawn from 40 CFR 141.23(c) (4),

as amended at 56 Fed. Reg.

3578,

January’ 30,

1991.

e)

Standard for monitoring conditions.

As a

condition of any SEP, the Agency shall require

that the supplier take a minimum of one sample.

In determining the appropriate reduced monitoring

frequency,

the Agency shall consider:

1)

Reported concentrations from all previous

monitoring;

13 1—159

---

92

2)

The degree of variation in reported

concentrations; and

3)

Other factors which may affect contaminant

concentrations such as:

changes in

groundwater pumping rates;

changes in the

CWSs

configuration;

the

CWS’s

operating

procedures;

or, stream flows or

characteristics.

BOARD

NOTE:

Drawn from 40 CFR 141.23(c) (3)

and

(5), as amended at 56 Fed. Reg.

3578,

January 30,

1991.

f)

Conditions and Revision.

1)

The SEP will expire at the end of the

compliance cycle for which it was issued.

BOARD

NOTE:

Drawn from 40 CFR 141.23 (c) (3),

as amended at 56 Fed. Reg. ‘3578, January 30,

1991.

2)

The SEP must provide that the Agency will

review

and’, where appropriate, revise its

determination of the appropriate monitoring

frequency when the supplier submits new

monitoring data or when other data relevant

to the supplier’s appropriate monitoring

frequency become available.

BOARD

NOTE:

Drawn from 40 CFR 141.23 (c) (6),

as amended at 56 Fed. Reg.

3578, January 30,

1991.

Quarterly Monitoring Section

611.603(g))

40

CFR

141.23(c) (7) reads:

Systems which exceed the maximum contaminant levels as

calculated in § 141.23(i) of this section shall monitor

quarterly beginning in the next quarter after the

violation occurred.

As is discussed in the general introduction above,

the Board

assumes that this means that if a sample exceeds an MCL at a

sampling point, the supplier goes to quarterly sampling for just

the contaminant in question.

The Board’s proposed language is as

follows:

A supplier which exceeds the MCL for barium,

cadmium,

chromium, fluoride, mercury or selenium, as determined

131—160

---

93

in.Section 611.609, shall monitor quarterly for that

contaminant, beginning in the next quarter after the

violation occurred.

Reduction to Normal Monitoring

611.603(h)

40 CER 141.23(c) (8)

reads as follows:

(8)

The State may decrease the quarterly monitoring

requirement to the frequencies specified in paragraphs

(c) (1) and

(c) (2) of this section provided it has

determined that the system is reliably and consistently

below the maximum contaminant level.

In no case can a

State make this determination unless a groundwater

system takes a minimum of two quarterly samples and a

surface water system takes a minimum of four quarterly

samples.

The USEPA rule references “paragraphs

(c) (1) and

(c) (2)” as

the normal monitoring requirement.

This appears to be a typo,

since the general monitoring requirement is found only in

subsection

(c)(l)

611.603(a).

This rule depends on the “reliably and consistently”

language which is discussed above in general, and in connection

with asbestos.

Although this does not have the “Catch-22”

problem associated with it, the Board has proposed to require the

Agency to specify

a trigger for a resumption of quarterly

monitoring.

Proposed Rule on Reduction from Monitoring 611.603(h))

The Board has proposed the following equivalent for 40 CFR

141.23(c)(8)

611.603(h):

h)

Reduction of quarterly monitoring.

1)

A supplier may request that the Agency reduce

the monitoring frequency to annual.

The

request must be by way of

a SEP application

pursuant to Section 611.110.

2)

The request must include the following

minimal information:

A)

For a GWS, two quarterly samples.

B)

For an SWS or mixed system, four

quarterly samples.

3)

The Agency shall, by SEP, allow annual

monitoring at a sampling point,

if it

131—161

---

94

determines that the sampling point is

reliably and consistently below the MCL.

4)

In issuing the SEP, the Agency shall specify:

A)

The level of the contaminant upon which

the “reliably and consistently”

determination was based;

and

B)

The level of the contaminant which,

if

exceeded in any one sample, would cause

the supplier to reinitiate quarterly

monitoring.

Section 611.604

Nitrate Monitoring

This new Section is drawn froin4o CFR 141.23(d),

which was

adopted at 56 Fed. Reg.

3578, January 30,

1991.

It governs

nitrate monitoring at all PWS5.

Nitrite monitoring is in Section

611.605.

Applicability

1611. 604

J

The introduction to 40 CFR 141.23(d) reads as follows:

(d)

All public water systems (community;

non—transient, non—community; and transient,

non—community systems)

shall monitor to determine

compliance with the maximum contaminant level for

nitrate in Sl41.62.

Nitrate monitoring applies to all PWS5, which include CWS5,

NTNCWSs and transient,

non-CWSs.

The Board has proposed the following equivalent for the

introduction to 40 CFR 141.23(d)

611.604):

Each supplier shall monitor to determine compliance

with the MCL for nitrate in Section 611.301.

Monitorina Frequency

611.604(a))

40 CFR 141.23(d) (1)

and

(4)

state the monitoring frequencies

for various types of PWS:

1)

Community and non—transient, non—community water

systems served by groundwater systems16 shall monitor

16This provision is using the undefined term “groundwater

system”.

As is discussed above, the Board assumes that this

means systems using only a groundwater source.

The Board has

13 1—162

---

95

annually beginning January

1, 1993;

systems served by

surface water shall monitor quarterly beginning January

1,

1993...

4)

Each transient non—community water system shall

monitor annually beginning January

1,

1993.

40

CFR

141.23(d) (1) and

(4)

Editorial Problems with Monitoring Frequencies

The’ monitoring frequencies are apparently stated separately

in subsection

(d) (4) because subsections

(d) (2) and

(3) deal with

adjustments to the monitoring frequencies for the CWSs and

NTNCWS5.

,However

(d) (5) goes back to the former subject matter.

The Board has proposed to consolidate these,

since this appears

to cause more problems than it solves.

This arrangement also

allows the provisions to be grouped, eliminating duplication of

blocks of text.’7

The second clause of 40 CFR 141.23(d) (1) requires

“systems”

served by surface water to monitor quarterly.

USEPA usually uses,

“system” as an abbreviation of “PWS”.

However, this would

contradict subsection

(d) (4), which imposes annual monitoring on

all transient non-CWS5.

Evidently “systems” here refers to the

types of PWS previously~mentionedin the sentence.

The Board has

fixed this by grouping the provisions.

The Board solicits

comment.

Proposed language on Monitoring Frequency

611.604(a)

The Board has proposed the following language concerning

monitoring frequency as Section 611.604(a):

a)

Suppliers shall monitor at the following

frequencies, beginning January

1,

1993:

1)

CWS5 and NTNCWSs:

A)

GWSs,

annually;

B)

SWS5, quarterly.

2)

Transient non—CWS5, annually.

Adjustment Procedures for Nitrate Monitoring Frequencies

1611.604(b) et sea.)

reformulated this provision,

using the terms defined above.

17However, this upsets the simple relationship of Board to

USEPA Section numbers, requiring more frequent “Board Notes”.

13

1—163

---

96

40 CFR 141.23 (d) (2) and

(3) deal with adjustments to

monitoring frequencies after elevated levels of nitrate are

found:

2)

For community and non—transient, non—community

water systems, the repeat monitoring frequency for

ground water systems shall be quarterly for at least

one year following any one sample in which the

concentration is ?50 percent of the NCL.

The State may

allow a groundwater system to reduce the sampling

fre’quency to annually after four consecutive quarterly

samples are reliably and consistently less than the

MCL.

3)

For community and non—transient, non—community

water systems, the State may allow a surface water

system to reduce the sampling frequency to annually if

all analytical results from four consecutive quarters

are 50

percent of the MCL.

A surface water system

shall return to quarterly monitoring

if any one sample

is ?50 percent of the MCL.

Undefined Terms

611.604(b),

(c) and

(e)

In addition ‘to the~u’sual, such as “groundwater system”,

these provisions introduce several new undefined terms.

These

include “repeat monitoring frequency” and “round of quarterly

sampling”.

The Board has attempted’ to rewrite these provisions

using terms which are defined.’8

Baseline Requirements for GWSs and SWS5

611.604(b)

et seq.

As discussed above, under 40 CFR 141.23(d) (1)

611.604(a),

the baseline monitoring is annual for a GWS and quarterly for an

SWS

(or mixed system).

This causes the adjustment provisions for

GWS5 and SWS5 to have some basic differences.

For the GWS the

adjustment is from annual to quarterly based on bad samples, with

a possible return to annual.

For the SWS

(or mixed system) the

adjustment is from quarterly to annual, based on good samples,

with a possible return to quarterly.

Adjusted Nitrate Monitoring for GWSs

611.604(b))

40 CFR 141.23 (d) (2) governs adjusted nitrate monitoring for

‘8Soine of the undefined terms appear to be defined by the

provisions in which they appear.

The Board has used some of

these terms in subsection headings.

The result of this is an

implied definition of the term.

This should be helpful to

readers, since it preserves what may be USEPA’s pet term for the

provision.

13 1—164

---

97

nitrate:

2)

For

CWS

and NTNCWS5), the repeat monitoring

frequency for GWS5

shall be quarterly for at least

one year following any one sample in which the

concentration is ?50 percent of the MCL.

The State may

allow a

GWS

to reduce the sampling frequency to

annually after four consecutive quarterly samples are

reliably and consistently less than the MCL.

The’ baseline monitoring for GWS5 iâ annual.

If any one

sample is 50

or more of the MCL, quarterly samples are required

“for at least one year”.

The State is allowed to reduce this

back to annual monitoring after “four consecutive quarterly

samples” are “reliably and consistently” less than the MCL.

The USEPA rule requires quarterly monitoring “for at least

one year”,

and then establishes a procedure which allows annual

monitoring again only after at least four quarters with good

results.

The repetition of the four sample requirement without

the “good sample” language could be construed as allowing a

return to annual monitoring after bad samples.

The Board has

therefore proposed to combine these into a single standard.

This

will assure that the only way to return to annual monitoring is

with four good samples..~The Board solicits comment.

40 CFR 141.23(d) (2) depends on the “reliably and

consistently” language, which is discussed in

th’e general

introduction to this Opinion, and which is defined in Section

611. 600.

40 CFR 141.23(d) (2) also has the “Catch—22” problem, which

is

discussed above.

As the USEPA rule is

written,

the supplier

with,

for example,

60

of the MCL is caught in an infinite loop,

oscillating between annual and quarterly monitoring.

The Board

has proposed language addressing both the “reliably and

consistently” and the “Catch—22” problems.

GWS Adjustments:

Appropriate State Agency

611.604(b)

40 CFR 141.23 (d) (2)

starts with a quarterly monitoring

requirement for GWS5 if any sample is 50

of the MCL (or mdre).

The USEPA rule is worded as a self-implementing rule.

The Board

has proposed to follow this format in Section 611.604(b) (1)

40 CFR 141.23 (d) (2) then allows the State to allow a GWS

supplier to return to annual monitoring under certain conditions.

As is discussed in general in the introduction to this Opinion,

and in the foregoing discussions concerning similar conditions

above, these adjustments to monitoring frequency are decisions

which the Agency should make, by SEP.

The Board solicits

comment.

13 1—165

---

98

Proposed Language on Adjustments for GWSs 611.604(b)

The Board has proposed the following as equivalent to 40 CFR

141.23(d) (2)

611.604(b)):

b)

Quarterly monitoring for GWS5.

1)

A

CWS

or NTNCWS supplier which has any one

sample in which the concentration

is equal to

or greater than 50 percent of the MCL shall

initiate quarterly monitoring during the next

quarter.

2)

The supplier may request that the Agency

reduce the monitoring frequency to annual.

The request must be by way of a SEP

application pursuant to Section 611.110.

A)

The request must include the following

minimal information:

four quarterly

samples.

B)

The Agency shall,

by SEP, allow annual

monitoring at a sampling point,

if

it’

determines that the sampling point is

reliably and consistently below the MCL.

C)

In issuing the SEP, the Agency shall

specify:

i)

The level of the contaminant upon

which the “reliably and

consistently” determination was

based;

and

ii)

The level of the contaminant which,

if exceeded in any one sample,

would cause the supplier to

reinitiate quarterly monitoring.

Adjusted Nitrate Monitoring for SWS5

611.604(c)

SWS5 start with quarterly monitoring.

40 CFR 141.23(d) (3)

provides:

3)

For

CWSs

and

NTNCWS5),

the State may allow

a

SWS

to reduce the sampling frequency to annually if

all analytical results from four consecutive quarters

are 50

percent of the MCL.

A

SWS

shall return to

quarterly monitoring if any one sample is ?50 percent

of the MCL.

13 1—166

---

99

This allows the State to reduce the (baseline)

quarterly

monitoring to annual after four consecutive quarters at less than

50

of the MCL.

Thereafter,

if the system takes a single sample

greater than or equal to’9 50

of the MCL,

it goes back to

quarterly sampling.

Again,

this is’appropriate as an Agency decision.

For the

SWS5, the initial adjustment is a relaxation of the baseline

monitoring requirement.

This is appropriate as an Agency

decision by way of SEP.

The Board solicits comment.

The USEPA rule then reimposes quarterly monitoring based on

a bad sample.

It might be appropriate to write this as a self-

implementing provision,

like the rule for GWSs.

However,

in this

case the Agency has issued a SEP which originally allowed annual

monitoring.

The Board has written this as a condition of the

original SEP,

so that the supplier will automatically go back to

quarterly monitoring under the SEP.

The SWS rule differs from the GWS rule in that the “reliably

and consistently” language is missing from the SWS rule.

The SWS

is

allowed to move to annual monitoring after it has four

consecutive samples at less than 50

MeL, regardless of the

“reliably and consistently” factors.

The Board solicits comment

as to whether this might be an editorial error by USEPA.

The “Catch-22” problem is also absent from the SWS

provisions,

since the return to quarterly monitoring is triggered

by the same threshold as the original adjustment,, a single sample

greater than or equal to 50

of the MCL.

It is possible that a

supplier right at 50

of the MCL could oscillate between

quarterly and annual sampling, depending on random variation.

However, this would be much less of a problem than the ltCatch_22~~

situation,

in which anyone between 50

and 100

of the NCL would

oscillate.

Proposed Rule on Adjustments to SWS Nitrate Monitoring

611.604(d)

The Board has proposed the following equivalent for 40 CFR

141.23(d)(3)

611.604(c)):

C)

Reduction of monitoring frequency for SWSs and

mixed systems.

1)

CWS

and NTNCWS suppliers, which are SWS5 or

mixed systems, may apply to the Agency for a

‘9The Federal Register text used by the Board has a typo (or

misprint) which appears to require a return to annual sampling

only if a value is strictly greater than 50

of the NCL.

13 1—167

---

100

reduction in monitoring frequency by way of a

SEP application pursuant to Section 611.110.

2)

The Agency shall allow the supplier to reduce

the sampling frequency to annually if all

analytical results from four consecutive

quarters are less than 50 percent of the MCL.

3)

As a condition of the SEP, the Agency shall

require the supplier to initiate quarterly

monitoring, beginning the next quarter,

if

any one sample is greater than or equal to 50

percent of the MCL.

The equivalent of 40 CFR 141.23(d) (4)

is addressed above

with Section 611.604(a).