ILLINOIS

POLLUTiON

CONT~0LBOARD

October

5,

1989

IN

THE

MATTER

OF:

)

SAFE

DRINKING

WATER

ACT

)

P88-26

REGULATIONS

PROPOSAL

FOR

PUBLIC

COMMENT

PROPOSED

OPINION

OF

THE

BOARD

(by

J.

Anderson):

Pursuant

to

Section

17.5

of

the

Eniironmental

Protection

Act

(Act),

the

Board

is

proposing

to

adopt

regulations

which

are

identical

in

substance

to

USEPA

regulations

implementing

the

Safe

Drinking

Water

Act

(SOWA).

This

involves

the

repeal

of

existing

35

Ill.

Adm.

Code

604,

605,

606

and

607,

and

their

replacement

with

a

new

35

Ill.

Adrn.

Code

611.

The

Board

will

eceive

public

comment

for

45

days

after

the

date

of

publication

in

the

Illinois

Regi ster.

Section

17.5 of the Act p’~ovidesfor 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 llinois

Administrative

Procedure Act

(APA) shaH

not apply.

Because this rulemaking

is

not

subject

to Section

5

of the APA,

it

is

not

subject

to first

notice

or

to

second

notice

review

by the Joint

Cornittee

on Administrative Rules

(JCAR).

The

SDWA program

is drawn

from 40 CFR

141,

142 and 143

(1987).

These

have been amended

by USEPA

in

the following

actions:

52 Fed. Reg. 25712

July

8,

1987

52 Fed. Reg. 41546

October

28,

1987

53

Fed. Reg. 5142

February

19, 1983

53

Fed. Reg.

25109

July

1,

1988

53

Fed. Reg. 37410

September 26,

1988

54

Fed. Reg.

15188

April

17,

1989

54

Fed. Reg. 27526

June 29,

1989

54 Fed. Reg.

27562

June

29,

1989

The

last

two

page numbe~’s in this table are

not

a typographical

error.

The proposal

is drawn

from the

1987 edition

of the Code of

Feder&1

regulations,

as

amended from July

1,

1987 through June

30,

1989.

The 1987

edition

has been used

as

the base text,

rather than the current 1988 edition,

because the Board

has the

1987 text

in

its

word processing equipment.

The

1987

edition,

as

amended through June,

1989,

is equiva’ent

to the

1989

edition, which

should

be

available by the time this

proposal

is

adopted.

The

Board will

retain

the

“1987,

as amended

...“

format

in the proposal,

since

it

will

make

it

easier

for

commenters

to track

possible errors.

At

final

adoption,

the Board will

consider changing

all

references

to the

1989

edition.

104-- 09

---

—2-

ABBREVIATIONS

The USEPA rules

use

a

large number

of acronyms sporadically.

The Board

has moved these to the definitions,

Section 611.101,

and used the acronym

wherever appropriate.

One

effect of

this

is

to tighten the use of defined

terms.

For example,

the USEPA rules define

“public water supply”,

or

“PWS”,

but then

go

on

to

use many synonyms,

such

as

“supply”

or “system”, when “PWS”

is obviously

intended.

The Board

rules are clearer

in that they use the

defined acronym,

rather than undefined abbreviations.

Also,

because there are

a large

number of

long phrases which are frequently

repeated,

the acronyms

shorten the

rules.

However,

the number

of acronyms

in the resulting

rules are

apt to cause problems until

people get used to

them.

Since the acronyms

are

used in the Opinion

also, the Board

has

included the following table

of

acronyms:

Agency

Illinois Environmental

Protection Agency

“BAT”

Best available technology

“Board”

Illinois Pollution Control

Board

“CAS Mo”

Chemical Abstracts Services Number

“CT” or

“CTcalc”

The

product

of

“residual disinfectant

concentration”

(RDC or C)

in mg/L determined

before

or

at

the first

customer, and the

corresponding “disinfectant contact time”

(T)

in

mi flutes.

“CT99.9”

CT value

required for 99.9 percent

(3—log)

inactivation

of Giardia

lamblia cysts.

(See

Appendix B)

“CWS”

Community

Water

Supply.

‘GC”

gas chromatography’

or

‘gas—liquid

phasa

chromatography”.

“GC/MS”

GC

followed by mass spectrometry.

“HPC”

Heterotrophic plate

count, measured

as specified

in

Section 611.531(c).

Ai

Inactivation

Ratio:

Ai

=

CTcalc/CT99.9

B

The sum of

the inactivation

ratios,

or

“total

inactivation

ratio”

is calculated

by adding

together the inactivation

ratio

for each

disinfection sequence:

B

=

SUM(Ai)

“MAC”

Maximum allowable concentration,

the equivalent

of

an

“MCL”

in

the existing State regulations.

“MCL”

Maximum contaminant

level.

104—10

---

--s-

‘MCLG”

Maximum

contaminart

level

goal.

‘MTP”

Maximum

Total

Trihalomethane

Potential

“NTNCWS”

Non—transient

non—community

water

system.

“NPDWR”

National

primary

drinking

water

regulation.

‘NTU”

or

“TU”

turbidity

units

“P-A

Coliforni

Test”

Presence—Absence

Coliform

Test

“pCi”

Picocurie

Public

water

system.

Rem

The

unit

of

dose

equivalent

from

ionizing

radiation

to

the

total

body

or

any

internal

organ

or

organ

system.

A

“millirem

(mrem)”

is

1/1000

of

a

rem.

“SDWA”

Safe

Drinking

Water

Act,

42

U.S.C.

300f

et

seq.

“TTHM”

Total

trihalomethanes.

“THM”

Trihalomethane.

‘VOC”

Volatile organic compound.

GENERAL

APPROACH

TO

STRINGENCY

Section 17.5 of the Act

requires

the Board

to adopt

rules

which

are

“identical

in

substance” with USEPA Safe Drinking Water Act

rules.

These

rules are

found

at mainly

40 CFR

141.

These

rules

largely supersede the existing

PWS rules

in

35 Ill. Adm. Code

604 through

606.

The Board

has followed

a

plan of adopting the

larger body of

USEPA

rules

in

a new Part 611.

The more stringent and additional,

consistent

State

rules have been moved

into the body of the

federal

text.

Most existing State

requirements

are less stringent than,

virtually the

same

as

or

inconsistent with the

federal,

so that there

is

not

a large

amount

of text to

deal

with

in accommodating the more stringent and additional,

consistent

State requirements.

The existing State regulations

regulate more PWS contaminants than does

the

federal.

For

the contaminants

regulated

in

both rule

sets, the existing

Board

regulations

are mostly the

same or more stringent.

An exception

are the

new federal disinfection

requirements which

impose inconsistent,

and possibly

more stringent, microbial

standards.

The main difference

is that

the federal

rules

set standards based

on the presence

or absence

(P/A)

of

bacteria,

as

opposed

to

setting numerical

standards.

In that

it

is

not possible to make

a

104—li

---

-4-

stringency comparison,

the

Board

is

required to

adopt the federal

set

in lieu

of the existing State requirements.

(Section 7.2(a)(6) of

the Act allows

the

Board

to

retain only more stringent conditions which are consistent with

federal

law.)

Most

of the MCL’s,

both

federal

and

State, are associated with

sampling,

analysis and reporting requirements.

The Board

has made the

stringency determination with respect

to

the MCL,

and then retained the

associated sampling and

analysis requirement.

For example,

it

is arguable

that the existing Board

bacterial analysis

requirements, which

require counts,

are “more stringent”

than the

new federal

P/A

tests

(since they are harder

to

do).

However,

it

would

not make

sense

to adopt the P/A standard,

and then

go

on

to require bacterial

counts.

Most

of the MCL’s also have

a reporting and notice provisions.

The Board

has proposed to keep

the provisions

associated with the MCL.

It

is

a

little

simpler

with

respect

to

the

additional

MCL’s

in

the

Board

regulations.

The Board has

inserted these additional

MCL’s,

along with the

associated

analytical

and reporting requirements,

into

the body of the federal

rules.

The Board has used “Board Notes”,

or other devices,

to mark these

as

additional

State

requirements.

There

is

a

possible complexity

in

that this

may bring the additional

requirements

into the general umbrella of the

federal

program.

So far

no problems

in

this area have emerged.

AGENCY

OR BOARD

ACTION?

In the proposal,

the Board

has

almost always

changed

“Regional

Administrator”

to

“Agency”.

However,

in

some situations “Regional

Administrator”

has been changed

to

“USEPA”

or

“Board”.

Section

7.2(a)(5) of

the Act requires

the Board

to

specify which

decisions USEPA will

retain.

In

addition, the Board

is

to

specify

which

State

agency

is

to make decisions,

based

on

the general division

of

functions

within

the

Act

and

other

Illinois

statutes.

The

USEPA

rules

are

flexible

as

to

the procedural

context

for most

decisions.

Tne SDWA does

not require

a

construction

or operating permit

of

the type required

by

35 Ill. Adn. Code

602.

The

states have been left the

option

of

requiring

a complehensive permit,

or

of administering the rules

through

a

less formal

arrangement.

Since Illinois

has

a comprehensive permit

requirement,

the Board has generally placed the requirements

of

40 CFR

141

into the procedural

context of Agency action

on

a permit application.

The

Agency

has authority to administer

such

a permit

system under Sections

4

and

39 of the Act.

In

a few instances, discussed below, decisions

are not appropriate

for

Agency

action pursuant to

a

permit

application.

Among the considerations

in

determining

the

general

di vision

of

autho”i ty

between

the

Agency

and

the

Board

are the following:

1.

Is the

person making the decision applying

a Board

regulation,

or

taking action contrary to

(“waiving”)

a

Board regulation?

It

generally takes

some form of Board action

to “waive”

a Board

regulation.

For example,

the Agency

clearly

has

authority

to apply

a

104—12

---

—5—

regulation

which says

“If A,

do

X;

if

not A,

do

Y”.

On the other

hand,

regulations

which say

“If not A, the

state

shall

waive

X”

are

more

troubling.

2.

is the-c

a

clear standard for

action such that

the Board

can give

meaningful

review

to

an Agency decision?

3.

Is

there

a

right

to

appeal?

Agency actions

are generally appealable

to the Board.

4.

Does this action

concern

a

person who

is requied to have

a permit

anyway?

if

so there

is

a

pro-existing permit

relationship which

can

easily

be

used

as

a context for Agency decision.

If the

action

concerns

a person who does

not

have

a permit,

it

is more difficult to

place the decision into

a procedural

context which would

be within

the Agency’s

jurisdiction.

5.

Does the

action

result

in exemption from the

permit

requi-ement

itself?

if

so,

Board action

is generally required.

6.

Does the person

making the decision have to

be the State agency which

has

signed the memorandum

of agreement with USEPA?

If

so,

it would

be simpler

if the decision were taken

by the Agency.

7.

Does the decision

amount

to

“determining, defining

or implementing

environmental

control

standards”

within the meaning

of Section 5(b)

of the Act?

To the extent

a decision

is

similar

to

a Board

action

specifying

a numerical

standard

for protection

of public

health

or

the environment,

it

must

be made by the Board.

Once

it

is

determined that

a 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

a

regulation can be

“waived”

or adjusted to

meet specific situations.

Note that there

are differences

in

the nomenclature

for these decisions between the USEPA and Board

regulations.

These

differences have caused past misunderstandings with USEPA.

The variance mechanism

is the

simplest method

of

“waiving” or

adjusting

a

regulation.

The 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 conducts

a

public hearing

if there

is

an

objection to the variance.

Board variances

are:

temporary;

based

on hardship;

and,

require

a plan

for

eventual compliance with the general

regulation.

To

the extent

a USEPA

decision

involves these factors,

a Board

variance

is

an appropriate

mechanism.

The “variances”

in Sections 1415(a)(l)(A) and

1416 of

the SDWA,

which

are discussed

in Sections 611.111

and 611.112

below,

appear

to

be very

similar to Board

variances.

A variance

is

not an appropriate mechanism for

a

decision which

is not

based

on hardship,

or which

grants permanent relief without

eventual

104—13

---

-6—

compliance.

To grant

permanent relief

in

the absence

of hardship, the Board

needs

to grant

a

site specific regulation or an

adjusted standard pursuant

to

Sections

27

or

28.1 of the Act,

and

35 111. Adm. Code 102 or

106.

Unless the

Board

regulation specifies

a “justification”,

either mechanism may be

used.

As

noted above,

few regulations

channe

“Regional Administrator”

to

“USEPA”.

Some

regu’

cions

on their face specify that certain decisions will

not

be delegated.

If the—e

are

others, USEPA

is

invited to coment.

The

Board has changed

“Regional Administrator” to

“USEPA”

so

as

to

avoid

specifying which office within USEPA makes decisions.

SUMMARY OF FEDERAL ACTIONS

As

noted above,

the base text

is drawn

from 40 CFR

141,

142

and 143

(1987),

as amended through June

30,

1989.

the following

is

a summary

of the

federal

actions encompassed

in this time frame:

52 Fed. Reg. 25712

Synthetic organic

chemicals;

monitoring for

unregulated

contaminants

52 Fed. Reg.

41546

Public notification

53 Fed. Reg.

5142

Analytical

techniques

53 Fed. Reg.

25109

Correction

to

52 Fed. Reg. 25712

53 Fed. Reg. 37410

Indian tribes

54 Fed. Reg.

15188

Public notification

54 Fed. Reg. 27526

Disinfection and filtration

54 Fed. Reg.

27562

Total Coliform MCL

SECTION-BY-SECTION DISCUSSION

The following

is

a Section-by-Section discussion

of the proposal.

GENERAL PROVISIONS

Section 611.100

This Section

is

derived

from 40 CFR

141.1

(1987).

It

has

been largely

rewritten

to

state the purpose,

scope and applicability

of

the State

program.

This Part

is

intended to

satisfy the requirement of Section 17.5 of

the Act

that the Board adopt regulations which are identical

in substance with

federal

regulations promulgated

by USEPA pursuant to

the SDWA.

This Part

includes both national

primary drinking water

regulations,

and additional,

more stringent State

requirments, which

have been moved from old Parts

604

through

607.

This Part mainly applies

to

“P~’JS’s”,which are defined below.

There are

a

few other provisions which

appy

to persons other

than the system itself,

such

as

the prohibition

on

the use

of lead solder

and flux.

This Section

is

related

to existing

35

Ill.

Adm. Code 604.405.

Section 611.101

This

is

the definitions

Section.

The Board

has

added definitions

of

“Act”,

“Agency”

and

“Board”,

shortened forms

of

commonly used State

terms.

l0!~—14

---

—7—

Note

that

the

USEPA

rules

use

“Act”

to

mean

“SDWA”.

The

Board

has

defi

ned

and

used

the

later acronym for the fede’~al Act.

The Board

has

added

a

Board

Note”

after each federally derived

definition.

This will

make

it easier

to

find the sources

of these

definitions,

many

of

which

have

recently

been

added

or

amended.

The

USEPA

rules

adopted

at

54

Fed.

Reg.

27526,

June

29,

1989,

include

a

definition

of

“CT”,

meaning the product

of

‘RDC”

times

“disinfectant contact

time”.

This,

and

rd

ated

definitions,

are

important

for

determining

compliance

with

the

new

disinfection

standard

in

Section

611.141

below,

which

req,Jires

99.9

removal

or inactivation of

G.

lamblia cysts.

The

definition

of

“CT” includes two subsidiary definitions

which

have

been

factored

out

armd

stated

separately

for

greater

clarity.

These

are

“CT99.9”

and “inactivation ratio”.

These have been placed

in quotes

to

make

it

clear

that

they

are

defined

elsewhere,

and

their

Board

Notes

mdi cate

that

their

origin

is

in

the defin~tionof

“CT”.

The

‘definition

of

“CT”,

and

do—i

ved

definitions,

md

ude

suhscri pts

and

formulas

which

are

difficult

to

place

into

the

format

required

by

the

Administrative Code Unit.

The

literal

text of the USEPA definit~onwould

have

to

he moved

to

an

appendix,

which

would

be unsatisfactory for

an

important

definition.

The

Board

has

therefore

broken

the

definition

up,

and

changed

the

format

of

the formulas,

so

as

to comply with Code Unit requirements.

‘CT99. 9”

is

the value for

“CT” which

achi eves 99.9

removal

or

inactivation

of G.

lamblia

cysts.

These

values are

found

in Appendix

B.

The Board

has

added

a definition for

“community water supply”

(‘CWS”).

This

is hard to

find

in

the USEPA

rules,

since

it

is defined within the

definition

of

“PWS”.

The Board

has defined

“GC”

and

“GC/MS”,

which are undefined acronyms used

in the USEPA

rules.

“GC” means

“gas chromatography”,

which

is

actually

an

abbreviation

for “gas—liquid phase

chromatography”,

since

column temperatures

are generally kept below the boiling point

of the material

being

analyzed.

“GC/MS’

is

GC,

follwed

by

mass

spectrometry.

The USEPA

rules make frequent

reference to

the “Groundwater Supply

Survey”.

The Board

has

added

a tautological

definition,

and solicits coninent

as

to what this means.

The definition

of

“halogen”

is

drawn from the USEPA rules.

Note that

it

excludes

a

common

halogen, fluorine.

The Board

has

added

a

definition for

“HPC”,

or “heterotrophic plate

count”.

This

is defined

by reference

to

its measurement method.

This

definition avoids having

to repeat

“heterotrophic plate count, measured

as

specified

in Section 611.531(c)” many times

in

the body of the

regulations.

The definition

of “inactivation ratio”

is

derived from the definition

of

“CT”

as

discussed above.

The inactivation

ratio

is

a measure

of the

success

of

a single disinfection operation.

The inactivation

ratio

is:

104--iS

---

-8-

Ai

=

CT/CT99.9

The

“total

inactivation

ratio” of

a series

of disinfection operations

is:

B

=

SUM

(Ai)

The Board

has defined

shorter symbols

for the inactivation ratio and

total

inactivation

ratio.

It

is

impossible to meet Administrative Code Unit

requirements

with the symbols used

in the USEPA rules.

It

is evidently

impossible for the

USEPA to work with them also,

as

evidenced by

54 Fed.

Reg.

27534,

in which the text of

40 CFR

141.74 collapses into utter chaos,

partly

because

of

the problems these

symbols cause.

The Board

has

added acronyms

for “national primary drinking water

regulation”

(“MPDWR”), turbidity units

(“NTU”

or “TU”)

and “Presence-Absence

coliform test

(“P-A coliform test”).

These acronyms

are used

in

the

USEPA

rules,

but not

defined.

With respect

to

turbidity

units,

is there

a

difference between

“MTU”

and

“TU”?

If they are the same,

one acronym should

be used.

The Board solicits coment.

A

“PWS”

is

a

system with

at least

15 service connections,

which serves

at

least

25

individuals

on

a daily basis for

at

least

60 days out

of the year.

A

“CWS”

is

a

“PWS” which serves the same number

of people

on

a year—round

basis.

Note that

“CWS”

is

defined,

in

a

similar manner,

in the Act.

However,

the Board

believes that,

pursuant to

an

identical

in

substance mandate,

it

must adopt the definitions with

the associated USEPA rules.

To do

otherwise

would change

the scope

of the identical

in substance

regulations,

violating

the mandate

of Section 7.2(a)

of

the Act

that the Board adopt

regulations

regulating the same activities and persons

as

would the USEPA program.

In the text of 40 CFR

141,

USEPA defines

“PWS”

and

“CWS”,

but then uses

a

large

number

of

synonvos

,

such

as

“supply”

and

“system”.

The Board

has

attempted

to

change

all

of

these

to

“PWS”,

“CWS”,

‘non—CWS’

or

“NTNCWS”,

whichever

is

appropriate.

This

makes

the

rules

clearer

and

shorter,

and

avoids

ambiguities

which

arise from the use of

the undefined synonyms.

One problem arises from USEPA’s use of the term “system”

as

a

synonym for

‘PWS”.

In some Sections, this term

is used

both to mean

“PWS”

and to mean

“distribution system”,

i.e.

plumbing.

Generally the Board

has attempted

to

use “system” only

in

the latter sense.

Another problem arises from the use

of

“supply”.

This could

mean either “PWS”,

or the

source

of raw water.

USEPA

uses

“system”

or

“supply”

as

a

generic

term

to

mean

“PWS,

CWS

or

whomever the above provisions

apply to”.

In many Sections below,

the Board

has

used

“PWS”

in this sense.

For example,

a USEPA provision may “This

Section

applies

to

CWSs.

...

Supplies may use Standard

X

to comply.

The Board

has

attempted

to

use

the

more

limited

terms,

such

as

CWS,

where

appropriate.

However,

in

sonic

cases

it

is

not

obvious

that

the

USEPA

rule

is

referring to

the

limited

class.

In

these situations

the Board

has

used

“PWS”

as

a generic

term.

Generally,

after

a narrower term has been used,

“PWS” should

not

be

costrued

as expanding the scope

of

a provision.

The Board

solicits coment

as

to whether any

“PWSs”

need to

be narrowed.

104—16

---

-9-

40 CFR

141

is

ambiguous

as

to

whether

“PWS”

means:

the

waterworks,

distribution

system, etc.;

the entity which owns the waterworks;

or,

the

owner

of that entity.

in almost

all

of

40 CFR

141

it

is

clear that JSEPA

means

the entity, together with

its

owner.

However,

as noted above,

the

rules

sometimes get

confused

as between

the

entity and the plumbing.

Also,

a

few

provisions speak

of the

“owner

of the

supply”

or “owner

of the PWS”,

implying

that

“PWS” may not

include the owner

of

the

entity.

Howeve”,

a

better reading

of these

is that USEPA means

“entity which

owns

the

plumbing”,

which

is

a

long

way to

say

“PWS”.

The Board

suggests that

the

best interpretation

is

that,

as

actually used by USEPA,

“PWS”

includes both

the

entity and the

owner

of

the

entity,

but solicits coment.

The

Board

has

added

an acronym for “VOC”, which

is

used

in the USEPA

rules without definition.

The Board assumes

this means

“volatile organic

compound”.

However,

it

is not clear what VOC’s

have to

do with the Sections

in which

the acronym is

used.

(Section 611.180,

40 CFR 141.100 and Section

611.340

and 611.648,

40 CFR

141.61

and 141.24(g).)

The USEPA

rules make repeated references

to

“wellhead protection programs

developed

under Section

1428”

of the SDWA.

In R89-5 the Board

is

proposing to

adopt

in

35 Ill. Adn. Code 615 through 617

a

set of groundwater protection

regulations which

it

believes will

be

approvable under Section

1428.

The

Board

has provided

a cross

reference to these

proposed regulations,

but

solicits coment.

Section 611.102

This

is the incorporations

by

reference Section.

40 CFR

141 contains

more than 43

incorporations by

reference.

The

Illinois Administrative Procedure Act

(APA),

and derived regulations,

restrict the use of

such references

in rules.

(Ill.

Rev.

Stat.

1987,

ch.

127,

par.

1006.02)

An

Illinois agency may incorporate

such standards or

guidelines

into

a

rule without publishing the

standard

or guideline

in

full

if:

1.

The standard

is from

a

federal

agency

or

a

nationally recognized

organi zation.

2.

The

rule contains the address

of the

agency

or organization

for

purposes

of ordering

the standard.

3.

The

agency

or organization makes copies

readily available to the

public.

4.

The

rule includes the date

of the standard.

5.

The

rule states

that

it

does not

include

later editions

or

amendments.

6.

The agency maintains

a

copy of the standard

in

its files

for public

inspection and copying.

The Board

has assembled

the incorporations

by reference into this

Section,

in

a manner similar to that employed

in many other

identical

in

104—17

---

-10-

substance rulemakings.

This will allow the Board to use

an abbreviated form

of

reference

in the remainder of the regulations, making the proposal much

shorter and clearer.

This will also allow

it

to periodically update the

references without having to

repropose the substantive regulations.

Many

of the materials which

are incorporated

by

reference into this Part

have very long titles.

Section 611.102(a)

contains

a

list of abbreviated

names, which are used

in the ensuing Sections.

For example,

“Standard Methods

for the Examniniation

of Water and Wastewater”

has been shortened

to “Standard

Methods”.

This

subsection also serves

to cross

reference from name of

document into name of

publisher,

by which the next subsection

is

arranged.

For example, Standard Methods

is available from the American Public Health

Association.

The incorporations by

reference fall

into

six major categories:

1.

ASTM Standards

2.

Standard

Methods

for

the

Examination

of Water and Wastewater.

3.

Other nationally

recognized

organizations

4.

Government publications, including USEPA and USGS Test Methods

5.

Journal

articles

6.

Miscellaneous.

The ASPI standards

are the easiest

to

deal

with.

The problem

is that

USEPA

is

referring to out

of date standards.

An

example

is the

the use of

ASTM D1O67-70B,

used

in

40 CFR

141.42.

The

final

two digits

indicates

the

1970 edition.

ASTM updates

its standards on

a five year cycle,

so that this

reference

is

probably three

or four revisions out

of print.

It

is

very

difficult to

locate old

ASTM

standards.

Furthermore,

it

is

doubtful

whether

they meet the

“publicly available”

criterion under tne APA, since

a member

of

the

public

cannot

simply order

a copy of

the out—of—print

standard.

The

Board

has

proposed

to

utilize

the

current

editions

of

the

ASTM

standards, from the 1989 Annual Book of ASTM standards.

The Board

solicits

coment comment from USEPA and others

as

to whether any of the

older standards

are actually necessary for the rules.

The Board

also notes

that 40 CFR

136 specifies analytical

methods

for the

Clean Water Act

related

rules.

40 CFR

136

is

in turn referenced

in the SDWA

rules.

It

generally references newer editions of the ASTM standards,

although

not as new as the current

editions.

Does USEPA perhaps

regard

40 CFR

136

as

controlling instead?

The ASTM standards are available either

as individual

standards or

through the annual

book.

The Board

has followed the course of

incorporating

the individual

standards,

rather than the

1989 annual

book.

This avoids

incorporating extraneous material,

it will

also simplify the

routine updating

of standards

as

they are revised.

Note that most

of the

referenced standards

will appear

in

the

1990 and 1991 annual

books,

but

all will

eventually

be

104—l’l

---

-11-

replaced

by revised

standards.

Another

problem

has

to

do

with

references

to specific methods within

an

ASTM

method.

This

is

usually

indicated

by

a

letter

following

the

date

designation.

The

Board

has generally dropped

these

subdesignations,

on

the

assumption that they are

no

longer valid with respect

to the

newer editions.

However, the

Board

solicits coment as which submethods need to

be

specified.

Note that

it

may be better

to

incorporate the entire method, and

specify

the

subniethod

at

the point

where used.

Following are

specific problems with individual ASTM standards.

ASPI D992-71

is

a method

for

determination

of

nitrate.

This standard has

been replaced with ASTM 03867, which

is

also cited

in

the

USEPA

rules.

(40

CFR

141.23 and Section 611.606)

The Board

has proposed to

drop the citation

to

the earlier method,

since

it

is

no

longer publicly available.

ASTM 02459,

“Gamma Spectrometry

in Water”, was discontinued

in

1988.

The

Board has proposed to

cite to

the most recent edition,

but solicits coninent

as

to whether this

is

still

“publicly available”.

The Board

has added

references

to ASTM D858,

D1068,

01691, 01688 and

02036.

These are standard methods for manganese,

i—on,

zinc,

copper,

and

cyanide, the

additional

inorganic parameters regulated by Illinois,

as

discussed

below

in Section 611.300.

The references

are to

the current

editions of the ASTM standards used

in

40 CFR

136.

The

references

to

“Standard Methods”

are also fairly

easy to deal with.

The

USEPA

rules

use

at

least

three editions of

“Standard Methods

for the

Examination of Wate

and Wastewater.”

The

17th Edition

is

expected very

soon.

The Board

has proposed to

reference only this Edition.

Again,

it

is

doubtful

whether Editions earlier than the

16th

are still

“publicly

available”,

since members

of the public

could

not order them.

Again,

the

Board

solicits coninent

as

to whether

certain Methods have to

be

referenced to

the

older works.

Note that there

is

a difference betwen the way in which the ASTM

standards and Standard Methods are handled.

The Board

has incorporated the

entire edition

of Standard Methods, because

it

is

a

publication which

is

completely

replaced

every

few

years,

and because individual

standards are

not

separately available.

The

proposal

assumes that the numbers

of

the methods

(and submethods)

will

remain the

same throughout these editions.

Comnmenters

are urged

to

review these

to make certain this

is the

case.

Standard Methods

is

co—published

by the American

Waterworks Association

(AWWA),

which

is

a member

of the American National Standards Institute

(ANSI).

Although Standard Methods

itself

is

not

an American National

Standard,

the Board believes that A~4WA’sparticipation

in ANSI,

together with

USEPA’s

use of

its

standards,

establishes

it

as

a

“nationally recognized

organization”.

However,

as

discussed below,

there may be problems with the

use

of AWWA journal

articles.

104—19

---

—12-

The third category

is

to

standards of other

nationally recognized

organizations.

This includes only AWWA C-400,

a standard for asbestos—cement

pipe.

This

is

a joint ANSI/AWWA standard, and

hence

is clearly “nationally

recognized”.

40 CFR

141.42 cites

to the

1977 Edition.

The Board

has cited to

the current

1980 Edition, which

is publicly available.

Although the CFR cites

to the

1977 Edition,

it

is using the title

of

a

still

earlier edition.

In 1977 the scope of this standard was narrowed from 4

to

24

inch pipe to 4 to

16 inch pipe.

However,

the CFR

still

cites the title

as

4 to

24

inches.

If USEPA needs

to

reference a

standard for the

16

to

24

inch pipe,

it

needs to

reference ANSI/AWWA C-403,

or related

standards.

The

Board solicits

coninent.

The

fourth category of incorporations

by

reference

is

government

publications, including the USEPA and USGS documents.

The APA authorizes the

use

of federal

government

publications

under similar conditions

to private

documents.

The main problem

is whether the documents are publicly

available.

USEPA has promised

to assemble

all

of the referenced materials for the

Board.

However,

the Board did not receive these

in advance

of the proposal.

The

Board

therefore made an

effort

to independently locate these documents.

The Board attempted to

locate

these documents through

the University

of

Illinois Documents Library.

This

is

a United States Government Depository

Library,

into which United States Government publications

are supposed to

be

archived.

It

is

a part

of one of the

largest university libraries

in

the

United States.

It

is

staffed with professional

librarians who deal with

Government documents

on

a

full

time basis.

They were

not very successful

in

locating

the

USEPA

documents.

This

raises

a

question

as

to

whether

these

documents

are indeed

“publicly available.”

The Board

has made

sonic

effort

at directly locating the

documents.

There

are

three

major

sources

from

which

Government

documents

can

be

purchased:

The

National Technical

Information Service

(NTIS);

the Government Printing Office

(GPO);

and,

the

agency

itself.

To

order

the

documents,

one

needs

to

know

the

stock

number.

The information provided

in

the USEPA

rules

is nowhere near

sufficient

to

order these

documents.

The operators

at the federal

numbers are

not

very helpful

if one doesn’t have sufficient

information.

For

a few

documents, however,

the results

of the University

of Illinois search, combined

with telephoning, produced some results, mostly

negative.

“Methods for Chemical Analysis

...“,

“Procedures for Radiochemical

Analysis...”

and the “USGS Methods” are definitely out of print,

according to

the GPO.

“Methods

for Chemical Analysis”

and “Microbiological

Methods”

are

available from NTIS.

The remaining USEPA documents

are definitely

not

available from GPO.

It

was not possible to get

a definite answer from

HC~1) ~

U

.

L

r

M.

Two of

the USEPA documents

(THM Methods) are apparently present

as

an

Appendix

to

40 CFR 141,

although the Appendix

is

not cited

in

the body of the

rules.

Similarly,

“Inductively Coupled Plasma—Atomic Emission Spectrometric

Method...”

is

apparently present

as

40 CFR

136, Appendix

C.

The Board has

cross

referenced

into these CFR cites,

which are

incorporated

by

reference in

1OA-20

---

—13—

subsection

(c).

The Board solicits conmient as to whether these are correct.

The USEPA -ules apparently reference nine USEPA documents.

One problem

may

be

that

some

of

these

references

are

to chapters within other

references:

i.e.,

there

may

actually

be

fewer

than

a

total

of

nine

references.

Another posssibility

is

that some references may

be to

preliminary drafts which

are now finalized under

a different

title.

The Board

has

proposed

to use

all

of the USEPA references,

in hope that

they will

be

completed during the

comment period.

However the difficulty

in

locating these

documents

casts

doubt

on whether they are “publicly available”

within

the meaning

of the APA.

The Board notes

that these documents generally

set

forth alternative methods

for parameters which are

also covered under ASTM

and Standard Methods.

To the

extent these documents

are redundant,

it

may be

better

to omit them from the

final

rules.

If they are

indeed

essential

to the

rules,

it may be necessary to

set them forth

at length

as

an

appendix to

the

rules.

Since

this will

be

a difficult, expensive task,

the Board solicits

connient

as

to whether any of these documents contain methods for which there

is

no

alternative.

The Board

has added

a

reference to the draft Guidance Manual

for the

filtration

and disinfection

requirements discussed

below.

It may be necessary

to

reference this

for complete standards

for the

“under the influence

of

surface water”

and “filtration” determinations.

It will

probably

not be

possible

to reference the

draft document

in the adopted

rules.

The reference

is

included

in the proposal

in hope that the Guidance Manual

will

be finalized

in

time for adoption

of the

rules.

The USGS publications

are confirmed

as

out of

print

by the GPO.

The

Board

has deleted

the GPO stock

numbers, which

are given

at

40 CFR

141.23 and

141.24,

since they are no longer

valid.

The Board

has replaced GPO with USGS

as the

source of this document, since GPO was

unable

to find

a more current

version.

However,

the availability will

need to

be completed before this rule

is

filed.

Note that similar sounding, more recent USGS publications are cited

in

40 CFR

136.

Another Government publication

is NBS Handbook

69, which

is

involved

in

interpreting

radiological

standards.

This

is

also confirmed

as

out of p’int

by the

GPO.

The fifth

category is Journal

articles.

These

relate

to two articles

concerning P—A Coliform tests

in

the AWWA journal

“Applied

and Environmental

Microbiology”.

The APA definitely does

not authorize incorporation by

reference of journal

articles.

Hopefully the contents of these will

be

in the

17th Edition

of Standard Methods.

If not, the Agency

and USEPA will

need to

obtain permission

from the authors and publisher to

reprint

the articles

in

the

rules.

The

sixth

category are items which appear

to

be

proprietary.

The fifth

category includes:

Amco Standards;

HASL Procedure Manual,

SPE Test Method;

Indigo Method;

and, Technicon Methods.

Although the

Board

has

not conducted

a detailed

investigation of these items,

on their

face they do not appear to

be publicly available.

The Board has included them

in the

proposal

for the

purposes of

comment, but intends

to

strike them on

final

adoption, unless

104-2 1

---

—14-

comenters show that the

items are

“available

to the public”.

An alternative

would

be

to

set them forth

at

length, for which commenters would need to

obtain permission

from the authors

and publishers.

There

is

a question as

to whether publication

of

a copyrighted item in

a

rule would place

the item into the

public domain.

The Board proposes that

it

could

include

a copyright notice

in such an item,

but solicits

coninent.

However,

the Board’s

rules would

be reprinted by the Agency,

by the

Administrative Code Section and by several

private publishers, such as BNA.

The Board could

not guarantee that they would retain

the copyright notice.

Furthermore,

the public may have

a

fundamental

right

to copy administrative

rules, which

right would

be

inconsistent with the copyright.

The Amco Standards reference

has

a deeper problem.

It

is

a reference to

a commercially

available chromatography standard

column.

This probably cannot

be

referenced.

For one thing,

the the APA authorizes incorporation only of

documents.

Furthermore,

the column

could not be dated.

Referencing the

column would therefore subdelegate

governmental

authority

to

a

private entity,

which could change the properties

of the standard column,

thereby essentially

changing the MCL’s.

The Board solicits

coninent

as

to whether their might

be

an

objective description

of

the column which could

be substituted for the

reference to the

commercial

product.

Section 611.103(c) references federal

regulations.

These

are “abonormal”

incorporations by

reference,

i.e.

federal

rules other than

the rules which

have to

be

adopted

as

identical

in substance rules.

These are grouped here

in

order to ease the problem of

routine updating of

the

references.

40 CFR

141.136, Appendix

B

is cited

in

40 CFR 141.24 and 141.40.

It sets

laboratory approval

standards.

40

CFR

141.136,

Appendix

C,

and

40

CFR

141,

Subpart

C,

Appendix

C

contain

analytical

methods

which

are

discussed

above.

Note

that

the

latter may be

a

“normal’

incorporation,

which

should

be

moved

into

the

body

of

the

rules.

However,

it

seems

to

be

floating

in

the

body

of

40

CFR

141

without

any

mention

of

it

in

the

text

of

the

rules

proper.

Section 611.108

This Section provides that the Agency may subdelegate portions of its

functions

to units

of

local

government

pursuant to Section 4(r)

of the Act.

This Section

is

a dummy

Section

to hold

the reference to Section

4(r).

This

allows

the

Board

to

use

a

shorter

form

of

reference

to

this

Section

in

the

body

of the

rules.

Also,

in

the event Section

4(r)

is

renumbered, the problem

will

be localized

in

the rules.

Section 611.109

This Section

is

derived from 40 CFR 141.22(e)

(1987),

as

amended

at

54

Fed.

Reg.

27526,

from

40

CER

141.23(e)(4),

as

amended

at

53

Fed.

Reg.

5146,

February

19,

1988,

and from numerous similar provisions scattered throughout

40 CFR

141.

These

all

provide that an MCL

is enforceable,

and that the

results

of required monitoring may be used

in

an enforcement action.

This

is

obvious

as

a matter

of Illinois

law.

The numerous provisions have been

I04—22

---

—15-

consolidated

into

a

single

Section

to

make

the

regulations

more

readable.

Section

611.110

This Section

is

derived from 40 CFR

141.3

(1987).

This Section

is

entitled “Coverage”,

which

is

somewhat misleading.

Actually

it

is

a

narrow

exemption

for systems which consist only

of distribution and storage, which

obtain

all

their water from

a

PWS, which

do

not sell

water and which

are not

interstate carriers.

The Board solicits

coninent

as

to whether this

last

provision

is appropriate

in the State program, since

interstate carriers are

going to be federally regulated anyway.

Section 611.111

This Section

is derived

from

40

CFR

141.4

(1987),

as amended

at

54 Fed.

Reg.

27562, June 29,

1989;

it

is

intended

as

a State equivalent

of Section

1415(a)(1)(A) of the SDWA.

Section 611.111(a) provides procedural

guidelines

to the

PWS

in

filing

a

variance petition pursuant to

35

Ill. Adm. Code

104.

Section

611.111(b) discusses

the findings the Board must find before allowing

a variance.

The PWS must demonstrate that

it

cannot

meet an MCL because of

source water characteristics;

that

it has applied BAT;

and, that

a

variance

will

not

impose

an unreasonable health

risk.

Subparts

(c)

and

(d)

detail

the

compliance

and implementation schedules to

be issued

by the Board.

Subpart

(e) provides for

a public hearing

on the merits

of the request.

Subpart

(f)

specifies situations

when the Board will

not

grant

a

variance.

The Section

1415,

and 1416 variance discussed below,

are referenced

into

40 CFR

141.4.

Rather than

adopt

a reference

in Board regulations,

the Board

has proposed to adopt

text which

is equivalent

to

the SDWA provisions.

The

references are

similar

to

incorporations by reference

in that they defer to

another document for the standard for decision.

Section 6.02

of the

Administrative

Procedure

Act

neither authorizes

nor prohibits this type of

reference to

a federal

statute.

However,

in

that these

references are just

like incorporations

by

reference, they have the same problems:

the reference

would leave the

regulation

incomplete

to the

reader, and would subdelegate

State rulemaking authority to Congress

in the event

of future amendments.

In

addition, the Board

has had cases

in

the past dealing with federal

variances

which,

at

a minimum, would have been simpler

if the

federal

variance and

federal/State interaction were dealt with explicitly

in the regulations.

(Stepan Chemical

v.

IEPA, PCB

79-161;

39 PCB

130, 416, July 24

and September

4,

1980)

For these

reasons, the Board has proposed

to

set forth text which

is

equivalent

to the SDWA provisions.

Section 1415(a)(1)

speaks

of the State granting “one or more”

variances

to

“one or more”

PWS’s.

The Board’s implementing

language

is worded

in the

singular.

However,

under the Board’s general

procedural

rules

a PWS with

multiple problems

could combine them into

a

single variance petition,

or could

file

a separate petition with respect

to

each MCL.

Likewise, PWS’s with

similar problems could

request that

the Board consolidate their

petitions.

Section

1415(a)(1) also requires

the Administrator to

“promulgate” his

findings of BAT with respect

to each MCL.

There

are several BAT findings

in

the USEPA rules

reflected

in Section 611.300 et

seq.

(For example,

see

Section 611.340(b)).

It

is

possible that USEPA has also specified BAT by way

104-23

---

-16-

of guidance documents.

If this

is the case,

these should

be incorporated

into

the regulations

by reference to make this variance procedure work.

The Board

solicits

cournent.

Section 1415(c)

of the SDWA requires the State

to act-”within

a

reasonable time” after

receiving

a “variance”

request.

As

noted

above, the

Board

has proposed to use its variance procedures

to consider such requests.

Section 38(a)

of the Act

requires

the Board

to

act within 120 days on a

variance petition.

This is almost certainly

a

“reasonable period”.

However,

the Board notes

that Section

38 of the Act provides

for

a

one

year

default

variance if the Board fails

to act within the time period.

The

Board also

notes

that no special

legislative provisions are

included

for the variances

for the RCRA,

UIC or NPDES

programs.

Although defaults

are rare,

the Board

solicits

corriiient

on this issue.

The Board

has proposed to use its variance mechanism as the State

equivalent.

This

is

discussed

in

general

above.

In

addition,

there

is

ample

precedent

for the Board

granting variances from State MCL’s which are the same

as

the USEPA MCL’s, consistent with Section

1415 of the SDWA.

(Geneva

v.

IEPA,

PCB 86—225;

79 PCB 45, 60,

July 16,

1987.)

Section 35(a)

of the Act allows the Board

to

grant

variances upon

a

finding

of “arbitrary

or unreasonable hardship”.

The

Board construes the SDWA

standards for granting Section 1415(a)(1)(A) and

1416 variances as

a

lesser

type

of hardship which goes into the arbitrary or unreasonable hardship

finding under State

law.

The wording

of Sections

1415,

and 1416,

of the SDWA are difficult to

understand.

It appears that the basic

1415 standard,

“because

of the basic

characteristics

of

the

raw

water

sources

which

are

reasonably

available”,

is

a

hardship

standard.

(Section

1415(a)(1)(A))

It

also appears

to require

a

compliance

plan

and

eventual

compliance

with

the

general

regulations.

(Section 1415(a)(1)(i) and

(ii))

However,

these

could

be

read

as

asking

fo~

an alternative MCL,

and

a

plan

for complying

with

the

alternative.

lhis

interpretation

is more consistent with

the requirement that

the

PWS meet BAT

before

applying.

How

could

the PWS comply with the

gene—al

MCL

if

it

has

already used

BAT and failed?

If this “variance”

is

to

lead to

an alternative

MCL,

an adjusted standard would

be more appropriate.

However,

these

variances

are discussed at

52

Fed. Reg. 25692, July 8,

1987.

This appears

to say that

compliance with the MCL

is

ultmately required.

The Board solicits

cotrinent,

especially from USEPA.

40

CFR

141.4

provides

that

the

State

cannot

grant

an

SDWA

variance

with

respect

to

the MCL

for total

coliformn or the filtration and disinfection

requirements, which are

in Subpart

B below.

The Board

has repeated this

in

this and

the following Section.

However,

it

is possible that in the overall

scheme

of things,

this language could apply

to only

one or the other type of

“variance”.

The Board

solicits comment.

Finally,

Section

1415(a)(3)

contains

what

appears

to

be

a

second

“variance” procedure which requires

an adjusted standard.

This

is

discussed

in Section 611.113.

Section 611.112

104

24

---

-17-

This Section

is

intended as

a State equivalent

of Section

1416 of the

SWDA.

Subsection

(a) provides procedural

guidelines

to the PWS

in applying

for an

“exemption”.

Subsection

(b) discusses the findings the Board must find

before

allowing

a

variance.

The Board

must find that

the PWS is unable to

comply with an MCL or treatment requirement

“because of compelling

factors

(which may

include economic factors)”.

This “variance”

is

available only to

a

PWS which was

in

operation before the MCL,

or which

has

no

other “reasonable

alternative souce”

of raw water.

Subsection

(c) details the compliance

and

implementation schedules

to

be issued

by the Board.

Subsection

(d) provides

for extensions

on the

variance.

Subsection

(e)

is

a

public hearing

provision.

Subsection

(f) notes

the USEPA

shall

be notified of

all

petitions

and

shall

notify

the Board

of

requests that do

not

meet

the requirements

of

the

Section.

Subsection

(f) specifies situations

when the Board

shall

not

grant

a

variance.

The Section

1415

and

1416

variances

are

very similar.

The following are

differences:

1.

While

the

1415

variance

depends

on

raw water characteristics,

the

1416 variance depends

on

economic factors.

2.

The 1415 variance

is

available only to

a PWS which

has applied BAT.

3.

The

1416

variance

is

available

only

to

existing

PWS’s,

or

to

those

with

“no reasonable alternative source”

of

raw water.

4.

While

the

1415

variance

requires

compliance

“as

expeditiously

as

possible”,

the 1416 variance has definite time limits.

5.

A 1416 va-iance

is subject

to USEPA

review.

(see below).

Section 611.112(d) generally limits compliance schedules to

a maximum of

12 months.

Subsections

(d)(1)

and

(d)(2)

allow extensions

under certain

conditions.

These are derived from Section 1416(a)(2)(B) and

(C).

Subsection

(d)(1)

is

a general

three year extension for

PWS’s which need to make capital

improvements.

Subsection

(d)(2)

is

for

small

PWS’s

which need improvements.

At

the

end

of

Section

1415(a)(2)(B)(iii)

is

a

requirement

that

the PWS

take

“all

practicable steps

to meet the

standard.”

There

is

a question

as

to

whether this modifies only subsection

(iii),

or

subsections

(i)

through

(iii).

In the version

of the SDWA the Board

is working from,

the text returns

to the preceding

level

of

indentation,

as though this was

a

(one line)

“hanging” paragraph,

at

the (a)(2)(B) level, modifying all

three

subsections.

The Board

has followed this reading, which makes more sense than

the limited

reading.

However, “hanging” paragraphs

are prohibited

by the Code

Unit.

This condition has therefore

been moved

up to

(d)(1)

level,

so that

it

governs Section 611.112(d)(1)(A) through

(C).

Section 1416(c)

and

(d)

of the SDWA require the State to

notify the

Regional Administrator of Section 1416 variances,

and create

a system

by which

USEPA

is

to

review

variances,

with possible revocation.

Most of this applies

to

USEPA, and

should not be

adopted

as

a State regulation.

(Section

7.2(a)(1))

However, the Board

has

fashioned

a procedure which carries

out the

1fl4--25

---

-18-

State’s obligations under these provisions.

(Section 7.2(a)(3) of the Act.)

Section 611.112(f) requires the Agency

to send USEPA

a copy

of each

variance.

The Board may reconsider and modify

a

grant

of

variance, or

variance conditions,

if the Administrator notifies the Board

of

a finding

pursuant to Section 1416 of the SDWA.

Section 611.113

As

is discussed

below, USEPA regulates some contaminants

by establishing

an MCL, and

others

by

requiring

a certain

treatment technique.

Section

1415(a)(3) of the SDWA

allows the Administrator

to approve alternatives

to

treatment technique requirements

upon a showing that an alternative technique

is

“at

least

as effective

in

lowering

a contaminant”

as the required

technique.

The Board

has proposed

to use the adjusted standard mechanism of

Section 28.1 of the Act and 35

Ill.

Adm. Code

106.

Variances

are

not

appropriate

since the PWS

is not expected to

come into eventual

compliance.

Neither the regulations

nor the SDWA specify

that this procedure

can be

delegated to

the States.

The Board

has proposed

a mechanism on

the assumption

that the mechanism is

delegatable.

If

it

is

not, there will need

to

be

a

mechanism by which the Board passes USEPA’s

“variances”

into State

law.

The

Board solicits

coninent

on

this.

Section 611.114

This Section

is

derived from 40 CFR

141.5 (1987).

This

is

a

regulation

restricting

the location of new PWS structures

in locations subject

to

earthquakes,

floods

or other disasters.

The USEPA rule merely

requires notification

of the State

before

construction.

The

Board has

referenced the construction permit

requirement

of

Section

602.101.

The USEPA rule includes restrictions

on

t:ne location of structu”es below

high

tide

marks.

For

geographical

reasons

these

are

not

applicable

in

Illinois.

The

USEP.A rules

also require the PWS to

avoid locating

at

a

site which

is

subject

to

a

significant

risk from earthquakes,

“to the extent practicable”.

This

may also

be

inapplicable

in Illinois

for geographical

reasons.

Large

areas

of Southern Illinois are

subject

to

a

significant

risk of

earthquakes.

However, unlike California

earthquakes, these are from deep faults which are

not associated small

areas

of especially high

risk

at

the

surface.

The effect

of

this provision

seems

to

be just

to establish

a presumption

against new

construction

in the southern third

of the State.

However,

the PWS regulations

fundamentally assume

that

a water supply will

be

built

in each community,

and

expanded

as necessay

to

serve the community’s

needs.

The

Board

solicits

comment

as

to whether

this provision ought

to

be deleted

as geographically

inappropriate

for

the

Illinois

program.

The

final

sentence of this Section provides that USEPA will

not seek

to

override State

or

local

land use decisions.

The Board

has proposed

to delete

this,

because

it

governs actions

to be taken

by USEPA.

An alternative

10’5—26

---

-19-

interpretation

is that this

is

a

pattern rule which the

states

are supposed to

adopt,

after shrinking

it

to State size.

The Board solicits coment.

While Agency

or Board

actions

do

not

in

and

of themselves

“seek

to

override”

local

land

use

decisions,

they

can

have

the

practical

effect

of

superseding

the

exercise

of

local

land

use

decisions.

For

example,

pursuant

to Board

regulations,

the Agency

is

required to place

a water

supply

on

restricted status,

thus disallowing construction

of water main extensions,

for

non-compliance

with

State standards.

As

another example,

the Agency and Board

are

in the process

of implementing the State’s Groundwater Protection Act,

which

includes restrictions

on the

location of

certain facilities within set-

back zones around wellheads.

Section 611.120

This Section

is derived from 40 CFR 141.60

(1987),

as amended

at

52

Fed.

Reg. 25712, June

8,

1987

The USEPA rules

list past effective dates for many

of

the USEPA provisions.

The

Board has deleted these

since they

all

are

past.

PWSs will

be

required to

comply with these provisions,

as

State

regulations,

upon

the

date

these

regulations

are

filed.

Note

that

many

of

these

provisions

have

earlier

effective dates under old Parts

604

through

607.

Also,

federal enforcement

remains possible

for

past

violations

under

40

CFR

141.

The

newer

USEPA

provisions

include

effective dates with

the

provisions,

and

are

contained

in other Sections

of the proposal.

Section 611.124

The

Board

has

proposed

to

move

the

prohibition

on

cross

connections from

existing

35 Ill.

Adm.

Code

607.104.

An

alternative

would

be to

leave this

in

Part

607.

The

Board solicits coment.

This

Section

is

subject to major

revision

in

an

Agency

proposal

in

R87—37.

The

Board

has proposed to

reword

this Section

to

comport with

the usage

of

terms

in

this Part.

The Board does

not

intend

to

change the meaning

of

these

requi rernents.

Subsections

(a)

and

(b) have been placed

into active voice.

As construed

in

the

proposal,

these

are

prohibitions

which

could

be

violated

by

any

person,

not

just

the

PWS.

The

word

“permitted”

has

been

construed

to

mean

“allow”,

as

opposed

to

“approve by permit condition”.

As

used

in this Part,

“permitted”

always

refers

to approval

by permit

condition, which

is not intended here.

Subsection

(a) authorizes connection between supplies of equal

quality

“as determined

by inspection

and analysis by the Agency”.

This

has been

deleted

as

unneccesary,

since the MCL’s

and methods

of analysis are

set forth

at length

in

this Part.

The existing Section suffers from the ambiguities

in the use of

“supply”

which

are discussed

above

in

the definition

of

“PWS”.

Generally

the Board has

proposed to

terms

as

discussed above:

“PWS”

includes the

“owner or official

custodian”;

and, “supply”, meaning the plumbing,

has

been replaced with

“distribution system”.

Section 611.124(c) concerns connection to “privately owned water

104-- 27

---

-20—

supplies”.

First,

there

is

an

ambiguity as

to whether this

is

referring to

PWS’s which

are privately owned,

or

to “supplies” which are too small

to

be

PWS’s.

Note that public

v.

private ownership

is not

a part of the definition

of PWS.

Second, There

is

a possibility that

the subject matter of this

paragraph

is addressed

in

Section 611.500.

The Board solicits coninent.

Existing

35 Ill.

Adm. Code 607.104(d) allows the Agency to adopt

“specific conditions for the control

of unsafe cross connections”.

Consistent

with the general approach taken

in

this Part,

the Board

has proposed to

specify that this be done by

permit

condition.

The Board

has proposed to drop

the reference to existing

35

Ill.

Adm. Code 602.115,

out of concern for

statutory authority for

that Section under the APA as currently interpreted.

Although the APA requires

the Agency

to follow APA rulemaking procedures when

it

makes

a

“statement

of general

applicability that implements, applies,

interprets,

or prescribes

law or policy”

(Section 3.09 of the APA),

the APA

does not confer jurisdiction

on the Board

to

require the Agency

to do

so.

Section 611.125

The Board

has moved the mandatory fluoridation

requirement from 35

Ill.

Adm.

Code

604.405.

This

is

an

additional

State

requirement.

Since

mandatory

fluoridation

is

enforced

by the Department

of Public Health, the Board

solicits coment

as

to whether

it shoud

retain this provision in the

regulations.

Section 611.126

This Section

is

derived from 40 CFR

141.43

(1987).

It

prohibits the

use

of

lead

pipes,

flux

or

solder

in

a

PWS,

and

in

connected

private

plumbing.

This has

been moved

to the front

of

the

regulations,

since

it

is

a prohibition

which any member of the

public

could violate.

FILTRATION AhO

DISINFECTION

Section

611.128

This Subpart addresses filtration and disinfection.

it

is

drawn from 40

CFR

141.70

et

seq,

as

adopted

on June 29,

1989.

This Subpart establishes

mandatory equipment and operating regulations which

function as MCLs.

Tnese

have

been

moved

toward

the

front

of

the

Part

in

that

they

establish

requirements

which

logically

precede

the

MCLs.

This Section addresses several Agency determinations which are

referenced

at

several

points

in

the

USEPA

rules,

but

which

are

not

explicitly

stated.

The

Board

has

collected

these into

a single Section

to efficiently

specify the

standards and

procedural

context for Agency action.

The standards are drawn

from the

body of the

federal

rules,

from the preamble

to the federal

rules

and

from

USEPA

guidance

documents.

The Board

has proposed

to

incorporate the

Draft

Guidance

Document

by

reference

in

Section

611.102.

However,

it

probably

would not be

acceptable

to do this

in the adopted

regulation,

as

provided by

Section 6.02 of the APA.

The Board will drop this from the regulations

if the

Guidance has not been finalized by the time of

final

adoption.

The Board

solicits coment

as

to

the status

of the Guidance Document.

104—2 S

---

-21-

The

Agency

will

make

the

determinations

in

the

context

of

a

modification

of

the

operating

permit

required

under

35

Ill.

Adm.

Code

602.102.

The

determinations

will

be

subject

to

appeal

to

the

Board.

The

Board

notes

that,

in

the

event

the

Board

fails

to

reach

a

decision

on

the

permit

appeal

within

the

120

day

time

limits,

Section

40

of

the

Act

provides

for

a

mandamus,

rather

than

a

“deemed

issued”

default,

only

for

RCRA,

UIC

and NPDES permits,

not

SDWA,

air

permits

or

non-hazardous

waste

permits.

The

Board

notes

that

a

default

permit

does

not

excuse

the

permittee

from

compliance

with

the

Act

or

Board

regulations;

enforcement

is

precluded

only

insofar

as

operating

without

a

permit

(Marquette Cement

v.

PCB

(1980),

84

1.11.

App.

3d 434, 405

NE

2d

512;

Illinois

Power

v.

PCB

(1983),

112 Ill.

App.

3d

457,

462,

445

NE

2d

820,

824.)

The Board

also notes

that,

pursuant to Section

39

of the Act,

failure

of

the

Agency

to

timely

act

regarding

RCRA

pernhits

has

been

construed

by

the

Board

as

not leading

to

a default,

in

part based

on the Board’s

“identical

in

substance” mandate.

(Marathon

v.

1EPA,

PCB

88-179;

~July27,

1989)

The Board

strongly

urges

the

Agency

and

USEPA

to coment, particulary

if there may

be

a

need

for

statutory

clarification.

This

Subpart

includes

other

determinations

which

appear

only

once,

or

a

few times.

These remain

in

the body of the

regulations.

Most of these are

determinations

which

are

subsidiary

to

the

determinations

which

are

addressed

in

these

regulations.

For

example,

in

Section

611.132,

the

Agency

may

determine that,

as

a part of

a determination

as

to whether filtration

is

required,

that

a

failure of disinfection

equipment was “caused

by

circumstances

which

were

unusual

and

unpredictable.’

The

Board

has

proposed

to

have

the

Agency

make

these

determinations,

consistent

with

the

general

discussion

above.

These

determinations

apply

to

PWS’s

which

already

are

subject

to

the

permit

requirement.

They

include

specific

standards.

The

Agency

has

authority,

pursuant

to

Section

39

of

the

Act,

to

apply

these

standards

in

the

context

of

permit

issuance,

subject

to

Board

review.

As

is

discussed

below,

the

new

federal

disinfection

rules

emphasize

filtration

as

a means

of

achieving microbial

quality

in water, discouraging

the

use of disinfectant

on

unfiltered water.

Section 611.128(a)

is the

determination

as

to

whether

filtration

is

required.

This depends

on

eight

criteria

for

avoiding

filtration

which

are

set

forth

in

detail

in

Section

611.131

and 611.132, which

are drawn from 40 CFR

141.71.

These

include:

coliform and turbidity standards

in

source water;

adequate disinfection;

a

watershed control

program;

annual

inspection;

absence

of disease

outbreaks;

and,

compliance with the

total

coliform and THM MCLs

in the

distribution

system.

The filtration determination

is back—referenced

at numerous points

in the

June

29,

1989

Federal

Register.

40

CFR

141.71

is

entitled

“Criteria

for

Avoiding Filtration”.

However,

the USEP~Arule does

not ever get around to

saying:

“The State

shall

determine that filtration

is

required based

on the

following criteria...”

Rather, this

is stated

in the preamble

at

54 Fed.

Peg.

27505.

Fortunately,

the

preamble

references

into

the

body

of

the

rules.

The

Board

has

placed

a

“Board

note”

after

the

text

of

Section 611.128(a)

indicating that

it

is

drawn from the Preamble,

rather

than the

rules.

Where

the USEPA rules

back-reference the filtration determination, they

104—29

---

-22-

repeat

the following

litany:

“...

determined,

in writing pursuant

to Section

1412(b)(7)(C)(iii)

(of the SDWA),

that filtration

is

required.”

For example,

see the preamble

to 40 CFR

141.71.

The cited SDWA Section merely

confers

jurisdiction

on the Administrator and autnorized states

to make the

determination;

it does not specify

any standards for the determination.

The

Board

has

rnitted this reference

si-ce

it

is

confusing and irrelevant

at the

State

le-

1.

At the hicK—reference points

the

Board

hac

cited

instead

to

Section

611.128(a).

Also,

the

“in writing”

requirement

is

replaced with the

permit action

requirement

in Section

611.128(d),

and stated

only

once.

The disinfection rules, discussed

below, generally

require

filtration

of

surface water sources and “groundwater sources

under the direct

influence of

surface

water”.

The Board

has added Section 611.128(b)

to

specify

the

criteria which

the Agency

is

to use to make this determination.

Again,

the

federal

rules

make numerous back references

to the determination,

but

fail

to

state

the criteria.

The term “groundwater under the direct

influence of

surface water”

is

defined

in

40 CFR

141.2.

However, the preamble has

additional,

and more specific criteria.

(54 Fed.

Reg.

27489).

The preamble

also refers

to

a draft Guidance Manual.

The Board

has consolidated the

criteria

in

the definition

and preamble into Section 611.128(b).

The definition

in

40 CFR

141.2 includes

two main criteria:

significant

occurrence

of

insects,

algae

or large—diameter pathogens,

such as

G.

lamblia;

or

significant and relatively

rapid shifts

in

in water

characteristics,

such

as

turbidity, temperature,

conductivity

or

pH, which

correlate with climatological

or

surface characteristics.

The determination

is

to

be based

on site-specific measurements of water quality

or documentation

of well

construction characteristics

and geology.

The preamble,

54 Fed.

Reg.

27489,

adds two other criteria which have been added

to the Board

regulations.

The determination may consider structural modifications to

eliminate the direct

influence of surface water

and prevent G.

lamblia cyst

contamination.

(Section

611.128(b)(3)(C))

Also, the potential

for

contamination

by

small —diameter

pathogens

,

such

as

vi ruses

or

bacteria,

does

nut

alone

render

the

source

“under

the

direct

influence.”

(Section

611. 128(b) (4) ).

The Guidance Manual

has

a number

of other criteria,

and

is more specific

as

to the criteria above.

The Board

has proposed language which attempts to

place

all

of the

decisional

criteria into the regulations,

but

without

being

overly

specific.

The Section

has

been worded

as

“The Agency

shall

determine

based

upon

...“,

in order

to allow the Agency freedom to weigh

these

factors to make an

overall evaluation

of whether

a source

is

“under the

influence”.

The Guidance Manual

is

written from the

point

of view of

a cost-effective

decision

tree,

so

that

the

State

can

determine

obvious

cases

without

requiring

the collection

of

immaterial

data.

For example,

the process

starts with

observing

whether

the source

is

a

lake.

if

so,

there

is

no

point

in

collecting

further

data.

The

Board

has tried

to preserve this hierarchy

in

the order

in which criteria are presented,

but without

setting out

the full

complexity

of

the

decision

process.

The

major

headings

of

the

criteria

address,

in

the following order:

physical

characteristics;

well

construction;

water quality records;

rapid shifts

in

water quality;

correlation with surface

conditions;

and particulate

analysis.

104—30

---

—23-

Section 611.128(b)(4)

is

the criterion that

a source

under the influence

of

surface

water

is

likely

to

have

significant

and

relatively

rapid

shifts

in

water characteristics,

including turbidity and

temperature.

The Guidance

Manual

specifies

a

range

of

0.5

to

1

NTU

and

15

to

20

of

temperature

change

as

indicative

of surface

influence.

There are problems with these

standards.

First,

does this mean that sources

with even larger

changes are

not

under the

influence?

Second,

what does

it

mean

for sources within the

range?

The Board

has avoided these problems by

proposing

a

regulation

which

uses the

lower value

of the range

as

indicative

of

surface

influence.

This

is

probably what USEPA means.

There

is

a

worse

problem

with

the

temperature

range.

USEPA

does

not

specify what units are to

be used.

Note that,

since the Fahrenheit

and

Cel si us

scales

are

arbitrary

units

with

arbitrary

starting

points,

“15

to

20”

is going

to

represent

a different physical

situation depending

on

which scale

is used.

Moreover,

a percentage change

in temperature

has meaning only

in the

absolute

scales,

such

as

Kelvin

or

Rankin.

The

following

discussion

assumes

that groundwater

has

a temperature of

around 60°F

or 15°C. This would

be

around 288°K.

A 20

change would

be

58 Kelvin

(which equal

Celsius) degrees,

a range

that

is

larger than most encountered

in surface water temperatures

from

season

to season anywhere

on

the planet.

Obviously the

rianual means

to

use Celsius

or Fahrenheit.

The Board has proposed to use

2 Celsius degrees ~s

the standard, corresponding to

15

of 15°C, but solicits coninent.

The

alternative would

be

9 Fahrenheit degrees

(15

of 60°F), which

is equivalent

to

5 Celsius

degrees.

As

noted,

the Board

has proposed to place this determination into the

context

of

permit modification.

There are other alternatives.

If

“direct

influence”

is

intended to cover only the situation

in which PWS5 draw water

from shallow, fractured limestone,

such as

a

karst terrain,

the occurrence

in

illinois

is

very

limited.

An

efficient

alternative

might

be

to

adopt

a

regulation which

lists the areas

of the State

and/or formations which

are

likely to be

“under the influence”.

Other areas would

be

presumed to be

not

“under

the influence”, minimizing the number of specific permit

actions.

This

approach appears

to

be consistent with the USEPA guidance.

However,

it would

require factual

input

so

as

to

identify these

areas.

The Board

solicits

coment.

The new disinfection

regulations, which are discussed below,

include

requirements that

a PWS maintain

a measurable

residual

disinfectant

concentration

(RDC)

in the distribution system.

RDC is measured either

directly,

or

by

a heterotrophic bacteria plate

count

(HPC).

An HPC

less than

500/ml

implies

a measurable RDC.

(See Section 611.141(d)).

HPC samples must

be refrigerated

and analysed within

a limited

time.

(Standard methods, Method

9O7A).

Several

of the regulations below include

an exemption from HPC

sampling

if the PWS has

no means

of analyzing for HPC

and

is providing

adequate disinfection.

For

example,

see 40 CFR 141.72(a)(4)(ii).

The Board

has collected these determinations into Section 6c1.128(c), which

is back-

referenced

instead

of repeating the lengthy

federal

language

at

each point.

This

determination

has

been

proposed

as

an

Agency

determination.

However,

it

is

less clearly

an Agency permit determination than the two

discussed above.

Whereas the

others

allow the Agency to make

a determination

which

places

the

PWS

into

the

regulations

for

filtered

or

unfiltered

supplies,

104--31

---

-24-

this determination exempts the PWS from the requirement to monitor the

distribution

system for RDC.

As

is

discussed above, exemptions may require

Board action.

However, the PWS

is

still within

the permit

system.

In

order

to

obtain

the

exemption,

the

PWS

has

to

make

an

alternative

showing

which

includes demonstrating indirectly

that

it

is maintaining

a. residual.

Also,

the

exemption

is

from

a

detailed

mon~.oringreqjirement,

rath’-

than

from

a

standard.

The Board

has therefore proposed this

as

an Agen:y determination.

The alternative would

be

an

adjusted standard.

The Board solicits coment.

The USEPA rules

do

not

give

any

criteria

for

making

the

HPC

determination.

The

criteria

are

discussed

in

the

preamble

at

54

Fed.

Reg.

27495.

Section 611.128(c)

is

largely based

on the preamble.

The

HPC

determination

has

two

major

components:

the

inability

to

measure;

and, maintenance of adequate RDC

in the distribution system.

The

former

has

been

phrased

in

terms

of

the

inability

to

measure

with

time

and

temperatures

specified

in Standards Methods, Method

90Th.

It would

be easy to

go

on

and

state the time and temperature conditions.

However,

the Board

has

avoided

doing

this

out

of

fear

that

these

might

change

in

the

future.

Citing

to

Standard

Methods

avoids

this problem,

since the Board will

routinely update

the

incorporations

by

reference

Section

to

include

revised

methods.

The

time and temperature

showing includes consideration

of transportation

time

to

the

nearest

certified

laboratory.

(Section

4(o)

of

the

Act)

In

addition,

the

Agency

is

to

consider

whether,

based

on

the

size

of

the

PWS,

it

ought

to

establish

in-house

laboratory

facilities.

See

the

preamble

at

54

Fed.

Reg.

27495.

This

is

not

further elaborated.

The second

portion

of the showing includes

a demonstration that the PWS

is providing adequate disinfection

in the distribution

system.

Note

that

the

RDC

level

in

the

distribution

system may

not correlate with the RDC

at

the

point

of

disinfection,

since

the

former also depends

on:

the presence of

oganic

nate”ial

in

the finished

water;

the

residence

time

in

the

distribution

system;

and

contamination

from

cross

connections.

In

riaking

the

disinfection

portion

of

the

determination,

the

Agency

is

to

consider:

other

measurements

which

show the presence of RDC

in

the distribution system;

the

size

of

the

system;

and

the

adequacy

of

the

cross

connection

control

program.

See

54

Fed.

Reg.

27495.

The

HPC

showing

has

a

cart—before—the—horse

problem.

The

HPC monitoring

is

supposed

to

show

an

adequate

residual

in the distribution system.

Howeve,

to avoid HPC monitoring,

the PWS has

to

show an adequate residual.

As

is

discussed

below

in

connection

with Section 611.141(d)(2),

the

entire

HPC

showing

could

be

an

error

in

the

USEPA

rules.

HPC

monitoring

is

an

optional

requirement

in the first

place:

the PWS can either measure RDC or

HPC

to

measure

the

presence

of

RDC.

There

is

really

no

necessary

connection

between the inability to

measure HPC and the inability

to measure

the presence

of RDC:

the PWS

can

easily measure RDC directly.

However,

the

HPC

demonstration

is

structured so

as

to exempt the PWS

from RDC measurement

as

well.

However, the

PWS has

to measure ROC to

get

the exemption.

It’s

possible that this whole procedure

should

be

removed

from the rules.

The

Board

solicits coninent.

104-32

---

—25-

Section

611.129

This

Section

is

derived

from

40

CFR

141.70

(1987),

as

amended

at

54

Fed.

Reg.

27526,

June

29,

1989.

It

sets forth the general

requirements

for

filtration and disinfection.

These apply

to PWSs using

a

surface water

source

or

a

groundwater source under the direct

influence of

surface water.

The PWS

must

achieve

a

99.9

removal

or

inactivation

of

G.

lamoblia

cysts,

and

a

99.99

removal

or

inactivation

of

viruses,

as

between

the

raw

water

source

and

the

first

customer.

A

PWS

is

considered

to

be

in

compliance

if

it

either

meets

the

requirements

for

avoiding

filtration,

or

if

it

meets the specific

filtration and disinfection requirements

discussed below.

40 CFR 141.70(c) requires that each PWS using

a

surface water source

or

groundwater under the

direct influence

of surface water

be

operated

by

personnel

who

meet

requirements

speci fied

by

the

State.

The

Board

has

referenced

the existing certification requirements

of

35

ill.

Adm. Code

603. 103.

Section

611.130

This

Section

is

derived

from

the

preamble

to

40 CFR

141.71,

as

adopted

at

54

Fed.

Reg.

27526,

June

29,

1989.

It

specifies

times

by

which

PWSs

must

meet

the filtration requirements.

Dates depend

upon when the Agency determines

that filtration

is

required,

or that

a

groundwater source

is under the direct

influence of

surface water.

Section 611.131

This Section

is derived from 40 CFR 141.71(a)

(1987),

as

amended

at

54

Fed.

Reg.

27526,

June 29,

1989.

It

specifies

the

source

water

quality

conditions which the Agency considers

in

determining,

pursuant to Section

611.128(a),

that filtration

is

required.

The conditions are that the source

water must be

less than 20 fecal

coliform bacteria

per 100 ml,

or

less than

100 total

coliform per 100 ml,

and have

a turbidity

less than

5 NTU.

Section 611.131(b)(1) includes

an exception from the turbidity condition

if the Agency determines that

the event was

caused

by

“ci rcumstances

which

were

unusual

and unpredictable”.

This determination would

be made subsidiary

to the determination

as

to whether filtration

is

required.

(Section

611. 128)

This Section

is

related

to existing

35

Ill.

Adm. Code 604.501(a—c)

and

6O4.5O2(a-c).

Section 611.132

This Section

is derived from 40 CFR 141.71(b)

(1987),

as amended at

54

Fed. Reg. 27526, June 29,

1989.

It sets forth the “site-specific conditions”

by which

a

PWS may

avoid filtration.

This

is

a pa~’tof the showing which the

PWS must make pursuant to Section

611.128.

As

provided by

Section 611.132(a),

a system which wants

to avoid

filtration must meet

the disinfection requirements

in Section 611.141,

subject

to certain exceptions.

These Agency

determinations

are subsidiary to the

104—33

---

-26-

filtration determination

in Section 611.128.

The disinfection requirements

are:

inactivation

of cysts

and

viruses;

redundant disinfection equipment;

an RDC of 0.2 mg/L entering the distribution system;

and,

a detectable RDC

in

the distribution system.

(Section

611.142(a)

—

(d))

As

provided

by Section

611.132(b),

system which wants

to avoid filtration

must maintain

a watershed control program which minimizes the

potential

for

contamination by

G.

lamblia

cysts

and viruses

in

the source water.

This

includes

a

requirement

that the PWS acquire land or control

rights

in the

watershed.

40 CFR 141.71(b)(2)

includes

a determination

as

to the adequacy

of the

program, which

is

made subsidiary

to the filtration determination

in Section

611.128.

This includes

a

restatement of

the purpose

of the program to

minimize cysts

and

viruses.

The Board

has deleted

the second statement,

and

placed

the final

sentence into active

voice.

As

provided by Section

611.132(c),

a system which wants

to avoid

filtration must have

an

annual

on—site inspection

to assess

the disinfection

process

and watershed control

program.

This

includes two subsidiary

demonstrations.

The

USEPA

rules

require

that

either

the

State

“or

a

party

approved

by

the

State”

perform the on

site

inspections

(40

CFR

141.71(b)(3)).

It

is

not

obvious

how

this

approval

is

to

be

given

in

Illinois.

The

Board

has

cited

to

Section

611.108,

which

allows

units

of

local

government

to

enter

into

delegation agreements

pursuant to Section

4(r)

of

the

Act.

40

CFR

141.71(b)(3)

also

requires

that

the

inspection

“indicate

to

the

State’s satisfaction” that the watershed

control

program and disinfection

process

are

adequately designed

and maintained.

The Board

has

replaced this

with

“demonstrate”

to

avoid

implying

an

unusual

burden

of

proof

or

subjective

St

a ~da

rd.

As provided

by Section 611.132~d), a system which

wants

to avoid

filtration must not

have

been identified

as

a sou~ce

~f

a waterborne disease

outbreak.

Tne

system can continue

to

avoid filtration

by modifications

to

prevent another such

occurrence.

The

phrase

“as

determined

by

the

State”

has

been deleted

as

redundant,

in

that this determination

is made as

specified

in

Section 611.128(a).

As

provided

by Section 611.132(e),

system which wants

to

avoid

filtration

must meet

the total

coliform MCL of Section 611.360.

This

MCL

involves

a

demonstration

of the

absence

of

colform

bacteria,

rather than

a count

standard.

This includes an exemption by way of

a

subsidiary demonstration

that the violation

was

not

caused

by

a deficiency

of treatment.

As

provided

by

Section

611.132(f),

system which wants

to avoid

filtration

must meet

the MCL

for TTH~1 in Section 611.310.

Note that filtration would

remove organic material which interferes with disinfection

and produces

unnecessary

THM.

This Section

is

related

to existing 35

Ill.

Adm. Code 6O4.501(a,b,d).

104-34

---

-27—

Section

611.133

This

Section

is

derived

from

40

CFR

141.71(c)

(1987),

as

amended

at

54

Fed.

Reg.

27526, June 29, 1989.

This states

the treatment technique rule,

which may

be the subject

of

a violation.

Under Section 611.133(a),

a PWS

violates

the treatment technique -equirement

if

it

fails

to

install

filtration

by the date specified

in Section 611.130,

and

either the Agency

has

determined

that filtration

is

required,

a’-

the

PWS fails

to meet

one of the above

criteria

for avoiding disinfection.

Note that Section 611.130 allows time for

installation

of

equipment

after

the Agency makes

the determination.

Under Section

611.133(b),

a PWS also may violate the treatment technique

requirement

if the

source water turbidity exceeds

5 NTU,

or

if the

system

is

a

source

of

a waterborne disease outbreak.

This Section

is

related

to existing

35

Ill.

4dm. Code 6O4.203(e,1 a-e)

Section 611.140

This Section

is derived

from 40 CFR

141.72 preamble

(1987),

as amended

at

54 Fed.

Reg.

27526,

June 29,

1989

This Section

specifies effective dates for

the disinfection

requirement.

These

run

through

1991 and

1993 for various

sources, or

18 months

afte’- Agency determinations regarding filtration

or

groundwater influence.

Section 611.140(c)

allows the Agency

to

set

interim disinfection

requirements applicable

between the

time filtration

is

required

and

installed.

This will

be done by permit

condition,

as

part of

the filtration

determination discussed

above.

This Section

is

related

to existing

35

Ill. Adm.

Code 604.401(a),

(b),

(d), 604.402(b),

604.403(a)

-

(h),

604.404,

604.501(e),

and 605.101.

As

noted,

toe USEPA rules

specify effective dates

for disinfection,

depending on the various Agency determinations.

The USEPA rules

are vague

as

to when and whether

a groundwater

source which

is

not

“under the influence”

has to add disinfection.

Existing

35 Ill. 4dm. Code 604.401

et

seq. require

chlorination, unless

the CWS obtains

an

exemption pursuant to

35 Ill. 4dm.

Code 604.403.

Howeve—,

this exemption procedure

has been superseded

by the

referendum procedure

of Section

17(b) of the Act.

One

of the

conditions

for

obtaining

an exemption

is

that the CWS draws

water

from “a

confined geologic

formation”.

(Section

17(b)(2)).

How does this relate

to the

USEPA

“under the

influence”

standard?

As discussed

above,

the USEPA rules will

require filtration

and

disinfection

of

surface water sources

and “groundwater sources under

the

direct

influence of

surface water”.

The remaining class

of water sources

is

groundwater

sources

not

“under the influence”.

Does this include

all

“confined

geologic

formations”,

or

are

there

some

“confined

geologic

formations”

which are

“under

the influence”?

The Board

suggests that

the

former alternative

is the

case:

i.e. “confined geologic formations”

is

a more

stringent standard than not

“under the influence”.

Assuming this

is

true,

there

are the following categories

of

sources:

1fl4

-35

---

-28-

1.

Surface

water

sources.

2.

Groundwater

sources

under

the

direct

influence

of

surface

water.

3.

Groundwater

sources

not

“.~nderthe

influence”,

but

not

into

“confined

geolog~:formations”

4.

Groundwater sources

into “confined geologic formations”.

The

following

discussion

assumes

that

the

USEPA

rules

require

disinfection

of

all

but

classes

3

and

4.

Existing

Board

regulations

require

disinfection

of

all

but

class

4,

and

then

only

after

meeting

certain

additional

conditions,

in

Section

17(b)

of

the Act, which themselves

serve to

amend

the

existing

Board

rule

which

requires

universal

disinfection.

The

existing Board

regulation

requires disinfection

of more sources,

and

is

in

this sense

more stringent.

Section

7.2(b)(6)

of

the

Act

requires

the

Board

to

retain

more

stringent

regulations which

are consistent with USEPA rules.

Is

the disinfection

requirement,

and statutory exemption, consistent with the USEPA

requi rements?

Under the existing regulations, while the disinfection

requirement

is

in

the Board

regulation,

the exemption

is

in

the statute.

The statute provides:

The

Agency

shall

exempt

from

any

mandatory

chlorination

requirement of

the Board any community

water

supply

which

meets

all

of

the

following

conditions.

(Section

17(b)

of the Act)

The

language

is

keyed

to

“any

mandatory

chlorination

requirement

of

the

Board”.

It

therefore

appears

that

the

exemption

is

not

necessarily

linked

to

tho existing

regulations,

but

could

carry

over

to

future

chlorination

requi rements,

md

uding

any

di sin

fecti on

requi remerit

in

this

rulemaking.

Existing 35 111. Ado. Code 60d.401 arguably can

be construed

as

requiring

“cnlorination”.

However,

the

USEPA rules

require only “disinfection”.

It

is

clear

from several

references

in the

rules

and preamble that USEPA

contemplates

disinfection through

the use of

chlorine, chloramines, chlo’-ine

dioxide

and/or

ozone.

The

Board

has

the

opportunity

to

clear

up

any

ambiguity

by

construing

its

existing

35

Ill.

Adm.

Code

604.401

as

allowing

any

form

of

disinfection,

so long

as

a protective residual

is maintained

in

the

distribution

system.

35

Ill.

Adm.

Code

604.401(a)

requires

the

supply

to

maintain

“residuals

of

free

or

combined

chlorine

at

levels

sufficient

to

provide

adequate

protection”.

While

the

Board

rules

may

accommodate

the

use

of

ozone

as

a

disinfectant,

they

do

require the

use of

a

chlorine residual.

However,

the

USEPA rules

include

specific standards requiring the PWS to demonstrate the

presence of

RDC

in the distribution

system.

However,

“RDC”

is defined

in

a

manner which does not

specify

a

chlorine residual.

Furthermore,

the presence

of RDC can be

shown

by

an HPC bacteria count

less than 500/ml.

This gives

systems freedom to

use alternative disinfection strategies, while being more

specific

as

to

the required

level

of RDC.

Again,

the Board

construes

its

10t~.-3(~

---

-29—

existing

rule

as

allowing

any

showing

of

a

residual

which

provides

protection

equivalent

to

a chlorine residual.

The

USEPA

disinfection

rules

are

a

part

of

a comprehensive set

of

filtration/disinfection

rules.

Among other things,

they are aimed

at

protecting

public

health from large-diameter pathogens which are resistant

to

chlorination,

such

as

G.

lamblia,

and

at

limiting

THM

formation

from

chlorination

with

inadequate

filtration.

The

Board’s

simpler

chlorination

requirement

does

not

adequately

address

these considerations.

It

is

possible

to

make

a

simple

change

in

existing

35

Ill.

Adm.

Code

604.401,

and

make

it

consistent with the

new USEPA

requirements.

The Board

has

proposed

to

add language requiring “disinfection”,

rather than

“chlorination”

of

all

sources,

unless

the

CWS

obtains

an

exemption

pursuant

to

Section

17(b).

The

Board

solicits

coninent

as

to

whether

there

is

any

provision

which

is

inconsistent

with

statutory

provisions.

Section

611.141

This Section

is derived from 40 CFR 141.72(a)

(1987),

as

amended

at

54

Fed.

Reg.

27526, June 29,

1989.

This specifies

the disinfection

requirement

for

PWSs which

do

not

provide filtration.

The system must meet the

general

disinfection

standard discussed above,

i.e.

inactivation

or

removal

of

99.9

of

cysts and

99.99

of

viruses.

These are calculated

as

specified

in Section

611.141

and Appendix

B.

Section 611.141(a)(1), derived from 40 CFR 141.72(a)(1), provides that,

if

a system uses

a disinfectant

other than chlorine, which

is

the disinfectant

addressed

by the

larger tables

in Appendix

B,

the PWS:

may demonstrate

to the Agency,

through

the use of

an Agency-approved protocol

for on-site disinfection

challenge studies

or other

information,

that

values

other than those

specified

in Appendix

B

...

or

other ope~’ational parameters

are adequate to

demonstrate

that

the

system

is

achieving

minimum

inactivation

rates

This

provision

allows

the

Agency

to

approve

an alternative method

of

demonstrating compliance with the inactivation

standard specified

in

the

Board

regulation.

The Board

has proposed to eliminate subjective language from the

USEPA

rule

(information

“satisfactory

to

the

Agency”).

So

modified,

the

regulation sets

an objective standard which the Agency may apply

in

the

context

of

permit

issuance

or

modification,

subject

to

Board

review.

The

Board has proposed to add Section 611.141(a)(2)

to

so provide.

Section 611.141(b)

requires that

a

PWS which

does

not provide filtration

must

have

either

redundant

disinfection components,

or

an automatic shutoff

of

water

in

the event

the RDC

falls below 0.2 mg/L.

The latter alternative

is

not

allowed

if

automatic shutoff would

“cause

an unreasonable risk to health

or

interfere

with

fire

protection.”

Section

611.141(c)

requires

that,

in

a

PWS

which does

not provide