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ILLINOIS POLLUTION CONTROL BOARD

June 20, 2002

Proposed Rule. First Notice.

OPINION AND ORDER OF THE BOARD (by G.T. Girard, R.C. Flemal, M.E. Tristano):

BACKGROUND

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 The Agency’s proposal amends the Lake Michigan water standards in Section 302.504 for arsenic, cadmium, lead, and other metals to the dissolved conversion factor based on the previous discussion. Prop. at 11. In addition, the Agency is correcting the calculation of the total species value (TSV) equation. Id. The Agency also “elected” to use a new conversion factor in some cases rather than the GLI values. Id. Finally, the provisions of the new section 309.157 will also apply to Lake Michigan. Id.

CBOD₅ instead of BOD₅

 The Board’s water rules at Section 304.120 provide general effluent standards for deoxygenating wastes. According to the current rules, effluent limits are stated in numerical units (mg/l) of biochemical oxygen demand (BOD₅). BOD₅ measures the carbonaceous demand in a sample to measure the efficiency of a treatment process. Tr.1 at 36-37. The Agency is proposing additional language at Section 304.120(g) which would require compliance with the BOD₅ numerical standards in Section 304.120 to be determined by analyzing carbonaceous biochemical oxygen demand (CBOD₅) in the effluent. The Agency is proposing changing the rule to allow for the regulation of CBOD₅ instead of BOD₅ in NPDES permits. Prop. at 12. The CBOD₅ method provides a more direct reliable measure of carbonaceous oxygen demand according to the Agency and has been allowed by federal regulations adopted in 1984. See 40 C.F.R. 133. Id. The Agency has used CBOD₅ in setting permit limits for effluent since 1986, but has not updated the Board’s rules until now. Id; Tr. 1 at 35.

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PUBLIC COMMENTS

 The Board received 21 public comments in this matter. The following table lists all the comments.

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DISCUSSION

 The Agency proposed changes in five areas to the Board’s water regulations. Those areas are: BETX; changes to General Use Water Quality Standards for zinc, nickel and cyanide; the dissolved metals standard; GLI corrections; and a change from regulating BOD₅ to CBOD₅. The following discussion will summarize the support in the record for the addition of BETX substances, the change to the Zinc and Nickel General Use Water Quality Standards, and the changes based on GLI. These proposed changes are unopposed by the participants. Next, the Board will elaborate on the issues surrounding dissolved metals, cyanide and dissolved oxygen and explain the Board’s decision on each of those issues.

BETX

 BETX is an acronym for four volatile organic substances commonly present in petroleum products. Those four substances are benzene, ethyl benzene, toluene, and xylenes. BETX substance found in petroleum storage facilities may endanger groundwater supplies. Prop. at Exh. F at 2. In some cases groundwater can then infiltrate into surface waters to endanger aquatic life. Id. The Agency proposed General Use Water Quality Standards and Lake Michigan Water Quality Standards for these substances giving both an acute and a chronic value. Tr.1 at 15. The Agency had in the past derived the standards for the BETX substances under the Board’s rules at 35 Ill. Adm. Code 302.210. Tr.1 at 50. Section 302.210 does not contain specific water quality values for each of the BETX compounds, but, instead delineates procedures for determining acute and chronic toxicity values for “other toxic substances.” 35 Ill. Adm. Code 302.210. However, the Agency found that these four substances were used over and over again. Tr.1 at 51. Therefore, the Agency proposed the standards be included in the Board’s rules. Id.

 The Agency developed the standards for the BETX substances using the procedures set forth in Guidelines for Deriving Numerical National Water Quality Criteria for the Protection of Aquatic Organisms and their Uses, USEPA 1985, NTIS PB85-227049 (Guideline). Prop. at Exh. E; Tr.1 at 25. The Agency used the Tier II procedure that involved several steps. Tr.1 at 27. First, data was obtained from a USEPA database and other sources on the substance and the data was verified using the Agency’s library sources. Id. Next, the data was tabulated as required by the Guideline. Id. Statistical calculations were made and documents were prepared for each substance. Tr.1 at 27-28. The Agency provided copies of those documents to the Board as a part of the Agency’s proposal. See Prop. at Exh. J, M, O, and R. The actual standards proposed by the Agency are similar to the numbers derived under 35 Ill. Adm. Code 302.210.

 The Board finds that the record supports the Agency’s proposed addition of water quality standards for the BETX substances. Therefore, the Board will propose for first notice the Agency’s proposed changes Section 302.208(e) and 302.504(a).

Zinc, Nickel and Cyanide

 One goal of triennial review is to update and review existing toxic metal standards. Tr.1 at 15-16. These metals have “one number standards” adopted in the 1970s as opposed to the “two number standards” that have been preferred method for the last fifteen years. Tr.1 at 16. Nickel and Zinc fall into this category. Id. Therefore, using the Guideline and the procedure discussed above, the Agency developed the proposed acute and chronic General Use Water Quality Standards for Zinc and Nickel. Tr.1 at 28; Prop. at Exh. S and V. The Board finds that the record supports the Agency’s proposed addition of acute and chronic standards for Zinc and Nickel. Therefore, the Board will proceed to first notice with that proposed change in Section 302.208(e). The Agency’s proposal to change the cyanide standard is more controversial, and will be discussed in detail in the issues section below.

 The Agency testified that the GLI rulemaking (R97-25) intended to list metals in the dissolved form, but the conversion factors were inadvertently left out. This proposal would correct that omission at Section 302.504. Tr.1 at 21. In addition, information was left out in Section 302.575 and that information is added here. Id. The Board finds that the record supports these proposed changes and will proceed to first notice with the changes.

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Issues

 As discussed above, three areas of concern have been raised. First is whether the Board should require the Agency to provide implementation rules regarding hardness, reasonable potential testing, dissolved oxygen and the metals translator prior to proceeding to first notice with the Agency’s proposal. Second is whether the Board should adopt the cyanide standard. Third is whether compliance with the BOD₅ effluent limits in Section 304.120 should be determined by measuring CBOD₅. The public comments and testimony of the participants will be discussed where appropriate.

Agency Implementation Procedures

 The Agency indicated in the proposal that the Agency would draft implementation rules to allow the administration of the metals translator process for determining water quality based permit limitations for NPDES permits. Prop. at 11. At hearing, Mr. Robert Mosher testified on behalf of the Agency that the implementation rules were still under development, and the rules would be presented at the second hearing. Tr.1 at 41. Mr. Mosher went on to testify that the Agency needs to provide instructions on several aspects of the proposed Board rules. Tr.1 at 42. Specifically, Mr. Mosher indicated that the Agency needed to provide information on where the Agency would get “hardness data” and on how the Agency will do “a reasonable potential analysis to determine if a certain substance needs to be regulated in the NPDES permit.” Tr.1 at 42-43. Mr. Mosher also indicated the Agency will have instructions on how the Agency will do the metals translator. Tr.1 at 43-44.

 At the second hearing, the Agency did not provide copies of the draft implementation rules. Tr.2 at 10. The Agency declined to provide the implementation rules for three reasons. Id. First, the Agency indicated that this rulemaking process should concentrate on the process used by the Agency to develop the standards. Id. Second, the Agency rules are still a work in progress, and third, the Agency will follow a separate public process for development of the rules. Id. In addition, the Agency noted that it intends to follow the procedures outlined in USEPA guidance documents ³ in developing the implementation procedures. PC 21 at 4.

 The Environmental Groups argue that the Board should not proceed with the proposal absent implementation rules on hardness, reasonable potential testing, dissolved oxygen, and metals translator. PC 18 at 2. The Environmental Groups argue that it is critical for the Board to see the implementation rules as such rules often make the difference as to whether the standard is protective of aquatic life, overly stringent, or useless. Id. The Environmental Groups use hardness as one example and note that where instream hardness is measured and what figure for hardness is used in calculating permits can make a large difference in permit limits. Id. Dr. Cynthia Skrukrud testified to the importance of seeing the Agency’s implementation rules. Tr.2 at 90. Dr. Skrukrud indicated that the only way to understand the proposed changed to the Board’s rules is to understand how the Agency will write the permits. Id.

Discussion. In general, the Board agrees that seeing implementation procedures for the water quality standards is important. The Board’s hearing officer strongly urged the Agency to provide the Board with copies of the implementation rules as a part of the Agency’s comments. Tr.2 at 149. The Agency chose not to do so. While it would be helpful to know the implementation procedures in developing comprehensive water quality regulations, in this proceeding the Board believes that the Agency has sufficient federal guidance and experience to develop implementation procedures which ensure that water quality standards are protective of aquatic life.

In this regard, the Board notes that the Agency has been issuing permits implementing the General Use Water Quality Standards, including standards based on hardness for a number of years. Further, the Agency has already developed detailed procedures for implementing the Lake Michigan Basin Water Quality Standards that address reasonable potential determination. See 35 Ill. Adm. Code 352. The Board expects the Agency to develop similar procedures for the implementing the General Use Water Quality Standards that are consistent with the USEPA’s guidance. ⁴ In light of this, the Board believes that it would be prudent to move the proposed water quality standards, with the exception of cyanide, to first notice and allow the Agency to develop their own implementation rules in a separate rulemaking.

 The Board will also proceed to first notice with proposed Section 309.157. That section of the proposal addresses permit limits for total metals. Again, while the Board recognizes the Environmental Groups’ concern regarding the lack of specific Agency implementation procedures for the calculation of permit limits based on site-specific data, the Board believes that the USEPA’s metals translator document (Prop. at Exh. A) provides sufficient guidance for determining site-specific metals translator. In this regard, the Agency maintains that it will follow the federal guidance in developing the implementation procedures for calculating permit limits. See PC 21 at 4. In view of this, the Board adopts Section 309.157 with some minor clarifying changes that require the Agency to develop implementation procedures for developing site-specific metals translator that are consistent with the federal guidance. The Board invites the participants to comment on this change to proposed Section 309.157.

Cyanide

 As indicated above the Agency proposed for amendment the acute and chronic water quality standards for cyanide in Section 302.208. Prop. at 10. The Agency indicates that while the standard as originally adopted was derived using cold-water species, the standard is being applied to Illinois waters that do not support cold water species. Id. The Agency proposes a standard that “corrects this error” and is intended to be protective of all species found in General Use waters. Id

 The Environmental Groups are joined by the Illinois Department of Natural Resources (IDNR) in opposition to the change proposed for cyanide. The Environmental Groups point out that Mr. Mosher testified that the Agency knows of no discharger who will be helped by adopting the “less protective standard” proposed. PC 18 at 3, citing Tr.2 at 61. The Environmental Groups agree that adjusting a national criteria to eliminate protection for species that do not live in Illinois makes sense “when there is relevant data for all of the more sensitive species in Illinois.” PC 18 at 3. And as long as the relevant data indicates that the resulting standard will still be protective of the species in Illinois. Id. The Environmental Groups point to the testimony of Agency witness Clark Olsen that there is no data on cyanide toxicity to mussels, and the Agency is proceeding with the standard without knowing if the standard will protect endangered and threatened mussels in Illinois. Id.

 The Environmental Groups are also concerned that no cool-water fish have been taken into account, even though the fish may be present in Illinois. PC 18 at 4. The Environmental Groups also feel that the Agency reliance on the antidegradation rules to protect these species may be misplaced. Id.

 IDNR maintains that there is not enough scientific evidence that the proposed cyanide standard will be protective of all species in General Use Waters, including cool-water fishes, and unionid mussels. PC 19 at 3. IDNR comments that cool-water species rainbow trout (Oncorhynchus mykiss) and brown trout (Salmo trutta) have been stocked to maintain recreational fisheries in Illinois. PC 19 at 1. Rainbow trout have reproduced at a lake in southern Illinois and brown trout may have reproduced in an Illinois stream. PC 19 at 1. According to IDNR, there are a number of fish species in northern Illinois that could be considered cool-water species, and therefore, cyanide toxicity test data on cool-water species, such as trout, would be more appropriate in developing a protective cyanide standard. PC 19 at 1-2. IDNR also has concerns based on the USEPA document, Ambient Water Quality Criteria for Cyanide – 1984, which is the source of the cyanide standard. PC 19 at 2. First, no data on cyanide toxicity for unionid mussels was used in setting the cyanide standard, yet, IDNR notes that Illinois has 27 species of unionid mussels that are listed as state or federal endangered or threatened species. PC 19 at 2. Second, the USEPA document references a study which found adverse effects on bluegill (Lepornis macrochirus) spawning for cyanide concentrations near the range of the proposed standard. PC 19 at 2. For the reasons listed above, IDNR opposes the change to the cyanide standard.

 Mr. Mosher testifying on behalf of the Agency concedes that to the best of the Agency’s knowledge there are no studies which evaluate the effect of cyanide on mussels. Tr.2 at 139. Mr. Mosher further testified that “in the science of aquatic life toxicity testing, studies on mussels are not yet an established and reliable procedure.” Id. Mr. Mosher stated that there is no approved methodology for conducting toxicity tests on mussels, however the USEPA has been experimenting with mussel toxicity testing. Id. The USEPA does not “require or endorse the use of mussel toxicity data at this time,” according to Mr. Mosher. Tr.2 at 139-140. Mr. Mosher testified that if toxicity testing for mussels becomes an approved and standardized process, the USEPA will incorporate mussel data into national criteria and the states will be “obliged” to use mussel data. Tr.2 at 140. When and if this occurs Mr. Mosher indicated that Illinois can update the water quality rules in Illinois to reflect the new data. Id. Mr. Mosher stated that until then, the Agency must use approved data in deriving the water quality standards. Id.

Discussion. The Board is convinced by the comments and testimony regarding the relaxation of the cyanide standard that such a relaxation is not warranted at this time. The Agency based the proposed amendment of the cyanide standard on the assumption that Illinois does not have native cold-water species of fish outside of Lake Michigan. However, IDNR has indicated that stocked cold-water species have reproduced in Illinois. This is information that the Agency did not have when considering the relaxation of the standard for cyanide (see Tr.1 at 62). The Agency also testified that a cool-water species (sculpin) are present in Illinois, but those streams “are not now thought to contain significant amounts of cyanide,” and the Board’s antidegradation rules can be used to evaluate the streams. Tr.2 at 141. The Board notes that while antidegradation evaluations provide additional protection to a water body in a permitting context, such an evaluation should not be used as a justification to relax water quality standards.

 The Board is also concerned with the lack of information regarding mussels in Illinois. At this time there are no studies that either the Agency or the participants are aware of which review the effect of cyanide toxicity on mussels. The Agency relies on the fact that the USEPA does not use mussel data to support the Agency’s proposal. However, USEPA’s lack of information is not scientific support for relaxing the standard. There are many endangered and threatened species of mussels in Illinois and no evidence to establish that relaxation of the standard will have no effect on those species. Furthermore, the relaxation of the standard will not help any Illinois dischargers. Therefore, the Board at this time finds that the proposed cyanide standard is not justified, and the Board will not proceed with the change. In addition, the Board will not proceed with the Agency’s proposed repeal of Section 303.444, and the caption will be amended to reflect that change.

CBOD₅ Instead of BOD₅

 The Agency’s proposal amends Section 304.120 of the Board’s regulations to allow the use of CBOD₅ instead of BOD₅ in NPDES permits. The Agency asserts that this amendment will ensure compliance with the effluent limitations provided under Sections 301 and 302 of the Clean Water Act. Prop at 9. The purpose of the BOD₅ test is to measure the efficiency of the wastewater treatment process. Tr.1 at 36. The Agency argues that the BOD₅ test may not provide useful information on the removal efficiency of the treatment process. Tr.1 at 37. The testimony of Michael Callahan, on behalf of IAWA (Tr.2 at 114), and the three attachments to his testimony (Exh. 14, 15, and 16) provide considerable scientific evidence to support the Agency’s position. The Agency maintains that the most logical way to measure the quality of the effluent is to assess and control components individually. Therefore the Agency testified that using the CBOD₅ test “to measure carbonaceous demand and where ammonia nitrogen effluent standards are appropriate[,] use the ammonia nitrogen test to measure nitrogenous demand” is appropriate. Tr.1 at 38.

 The BOD₅ test is designed to measure the carbonaceous oxygen demand in a sample and to measure the efficiency of a treatment process by comparing the carbonaceous oxygen demand before and after the treatment process. Tr.1 at 36-37. In treatment processes that do not nitrify or completely nitrify the use of the BOD₅ test on both influent and effluent will provide information on the efficiency of the treatment process. Tr.1 at 37. However, if the system only partially nitrifies, the use of the BOD₅ test will compare the carbonaceous demand in the influent with both the carbonaceous and nitrogenous oxygen demand in the effluent. Id. This does not provide useful information on the removal efficiency of the treatment process. Id.

 The Agency suggests that the best way to judge the quality of the effluent is to use the BOD₅ test on influent and, on the effluent, the CBOD₅ test to measure carbonaceous oxygen demand and the ammonia nitrogen test to measure nitrogenous demand. Tr.1 at 38. The Agency also believes this procedure is more logical than trying to measure the combined carbonaceous oxygen demand and nitrogenous oxygen demand with the BOD₅ test which has proven to provide misleading and inconsistent results. Tr.1 at 38. In 1984, the USEPA amended the federal regulations to allow for the use of CBOD₅ and since 1986 the Agency has used CBOD₅, in lieu of BOD₅ in NPDES permits. Tr.1 at 35. The Agency also incorporates ammonia nitrogen water quality based effluent limits where appropriate. Tr.1 at 35-36.

 The Environmental Groups oppose the proposed change to CBOD₅ from BOD₅ because they believe CBOD₅ does not measure the total oxygen demand of the discharge. PC 18 at 5. Specifically, the Environmental Groups are concerned that dissolved oxygen standards are being violated in Illinois and will continue to be violated with this change in standard. PC 18 at 6. The Environmental Groups are also concerned that the proposal ignores nitrogenous oxygen demand. PC 18 at 7.

 The proposal by the Agency to replace the limits for BOD₅ with limits for CBOD₅ is supported by IAWA, Metropolitan Water Reclamation District of Greater Chicago, Wheaton Sanitary District, Lake in the Hills Sanitary District, Greater Peoria Sanitary District, Springfield Metro Sanitary District, Fox Metro Water Reclamation, Rock River Water Reclamation District, City of Elmhurst, Urbana & Champaign Sanitary District, Glenbard Wastewater Authority, North Shore Sanitary District, Rochelle Municipal Utilities, City of Naperville Department of Public Utilities, Downers Grove Sanitary District, DeKalb Sanitary District, and Thorn Creek Basin Sanitary District. Specifically, IAWA comments that the Agency’s proposal is not a mechanism to relax existing effluent standards. PC 20 at 1. IAWA opines that the proposed change is an attempt to more clearly define wording and terminology of the existing rule. Id.

Discussion. The Environmental Groups primary concern is that using CBOD₅ to measure the efficiency of wastewater treatment facilities may not be fully protective of dissolved oxygen levels in Illinois waters, because CBOD₅ does not measure nitrogenous oxygen demand. However, the evidence in the record, such as IAWA’s Exhibits 14, 15 and 16, document that the BOD₅ test in many cases does not accurately represent wastewater treatment efficiency or the actual oxygen demand experienced in the receiving stream. The record supports the Agency’s position that combined effluent testing for CBOD₅ and ammonia nitrogen provides a more representative measure of treatment efficiency. In addition, the Agency has been using CBOD₅ since 1986 in NPDES permits, yet stream studies provided by the Agency indicate that streams regulated for CBOD₅ are “generally not suffering from low dissolved oxygen problems.” PC 21 at 3. Furthermore, the record demonstrates that public wastewater treatment facilities throughout Illinois support this change. Therefore, the Board finds that the record supports proceeding to first notice with the change in Section 304.120 allowing the use of the CBOD₅ to determine compliance with the BOD₅ numerical standards found in Section 304.120. Participants are encouraged to provide additional comment on this change.

SECTION 302.105

 The Board is opening this section to correct typographical errors from Revisions to Antidegradation Rules 35 Ill. Adm. Code 302.105, 303.205, 303.206, and 102.800-102.830 R01-13 (Feb. 21, 2002). This section is opened only to address typographical errors and no substantive changes will be considered in this rulemaking.

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The Agency’s proposal also addressed the economic reasonableness and technical feasibility of the proposal. The Agency indicated that this proposal contains no new regulatory requirements under the Illinois’ water quality standards. Prop. at 15. The Agency maintains that the proposal revises and updates existing standards based on new scientific information. The Agency asserts that the regulated community has been complying with the BETX standards for some time. Id. Other than comments discussed above, the Board has received no comments which indicate that the proposal is not economically reasonable and technically feasible. Therefore, the Board finds that the rule is economically reasonable and technically feasible.

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CONCLUSION

 The Board today proposes for first notice amendments to the Board’s water rules. The Board is adopting the proposal as filed by the Agency with minor changes except the Board will not proceed with the proposed cyanide standard. The Board will schedule an additional hearing by hearing officer order at a later date.

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ORDER

 The Board directs the Clerk to cause the publication of the following rule for first notice in the Illinois Register.

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE C: WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 301

INTRODUCTION

Section

AUTHORITY: Implementing Section 13 and authorized by Section 27 of the Environmental Protection Act [415 ILCS 5/13 and 27].

SOURCE: Filed with the Secretary of State January 1, 1978; amended at 3 Ill. Reg. 25, p. 190, effective June 21, 1979; amended at 5 Ill. Reg. 6384, effective May 28, 1981; codified at 6 Ill. Reg. 7818; amended in R88-1 at 13 Ill. Reg. 5984, effective April 18, 1989; amended in R88-21(A) at 14 Ill. Reg. 2879, effective February 13, 1990; amended in R99-8 at 23 Ill. Reg. 11277, effective August 26, 1999; amended in R02-11 at Ill. Reg.             , effective                                         .

Section 301.106  Incorporations by Reference

"ASTM" means American Society for Testing and Materials

"GPO" means Superintendent of Documents, U.S. Government Printing Office

"NTIS" means National Technical Information Service

"Standard Methods" means "Standard Methods for the Examination of Water and Wastewater", available from the American Public Health Association

"USEPA" means United States Environmental Protection Agency

b)  The Board incorporates the following publications by reference:

American Public Health Association et al., 1015 Fifteenth Street, N.W., Washington, D.C. 20005

Standard Methods for the Examination of Water and Wastewater, 16th Edition, 1985

ASTM. American Society for Testing and Materials, 1976 Race Street, Philadelphia, PA 19013 (215) 299-5400

ASTM Standard E 724-80 "Standard Practice for Conducting Static Acute Toxicity Tests with Larvae of Four Species of Bivalve Molluscs", approved 1980.

ASTM Standard E 729-80 "Standard Practice for Conducting Static Acute Toxicity Tests with Fishes, Macroinvertebrates, and Amphibians", approved 1980.

ASTM Standard E 857-81 "Standard Practice for Conducting Subacute Dietary Toxicity Tests with Avian Species", approved 1981.

ASTM Standard E 1023-84 "Standard Guide for Assessing the Hazard of a Material to Aquatic Organisms and Their Uses", approved 1984.

ASTM Standard E 1103-86 "Method for Determining Subchronic Dermal Toxicity", approved 1986.

ASTM Standard E 1147-87 "Standard Test Method for Partition Coefficient (n-Octanol/Water) Estimation by Liquid Chromatography", approved February 27, 1987.

ASTM Standard E 1192-88 "Standard Guide for Conducting Acute Toxicity Tests on Aqueous Effluents with Fishes, Macroinvertebrates and Amphibians", approved 1988.

ASTM Standard E 1193-87 "Standard Guide for Conducting Renewal Life-Cycle Toxicity Tests with Daphnia Magna", approved 1987.

ASTM Standard E 1241-88 "Standard Guide for Conducting Early Life-Stage Toxicity Tests with Fishes", approved 1988.

ASTM Standard E 1242-88 "Standard Practice for Using Octanol-Water Partition Coefficients to Estimate Median Lethal Concentrations for Fish due to Narcosis", approved 1988.

ASTM Standard E 4429-84 "Standard Practice for Conducting Static Acute Toxicity Tests on Wastewaters with Daphnia", approved 1984.

NTIS. National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161 (703) 487-4600

SIDES: STORET Input Data Editing System, January 1973, Document Number PB-227 052/8

Water Quality Data Base Management Systems, February 1984, Document Number AD-P004 768/8

USEPA. United States Environmental Protection Agency, Office of Health and Environmental Assessment, Washington, D.C. 20460

Mutagenicity and Carcinogenicity Assessment for 1,3-Butadiene, September 1985, Document Number EPA/600/8-85/004A

Procedure 5.b.2 of Appendix F of 40 CFR 132 (1995)

40 CFR 136 (1996)

40 CFR 141 (1988)

40 CFR 302.4 (1988)