ILLINOIS POLLUTION CONTROL BOARD

November

21,

1985

IN THE MATTER

OF:

AMENDMENTS TO CHAPTER

3

)

R77~12

WATER POLLUTION (Effluent

)

Docket D

Disinfection)

)

FI1’~ALRULE.

PEREMPTORY RULEMAKING.

ORDER OF THE BOARD

(by J.D, Dumelle):

On October 14~1982,

the Board adopted rules repealing

the

fecal coliform water quality standard for general use and

secondary contact waters

(35 III, Adm,

Code 302.209

and 302~406)

and amending

the

fecal eoliform effluent standard

(35 Iii, Mm,

Code

304,121),

These

rules became effective on October

26,

1982.

However, on November

15, 1983,

the First District

Appellate Court reversed the Board~sOrder repealing

the

fecal

coliform water quality standard

for general use waters

(35

Ill.

Mm,

Code 302~209)and amending the fecal coliform effluent

standard

(35 Ill. Adm.

Code 304.121),

The court, however,

affirmed

the Board’s Order repealing the

fecal coliform water

quality

standard for secondary contact waters

(35 Ill, Adm. Code

302,406),

~

Control Board,

et

al., 119 Ill, App.3d 561,

75

Ill, Dec.

88, 456

N,E,2d 909.

On October

3,

1984,

the Illinois Supreme Court affirmed the

Appellate

Court’s decision regarding

the repeal of

the fecal

coliform water quality standard

for general use waters

(35 Ill,

Mm, Code 302,209)

and the amendment of

the fecal coliform

effluent standard

(35

Ill.

Adm. Code 302.121),

The People

of the

State of Illinois

v. The Pollution Control Board,

et

al,,

103

I11~2d

441, 469 N.E.2d 1102,

Pursuant

to the Supreme

Court’s

opinion,

the Board,

on August

1, 1985,

readopted by

peremptory

rulemaking

the fecal coliform water quality standard for

general

use waters and

the fecal coliform effluent standard

as they

existed prior

to the Board’s October

26,

1982 action.

However,

the

Board never filed those peremptory rules,

since

it became

aware that the proposed action actually exceeded what was

required under

the courts~orders,

The Appellate Court,

in affirming the Board’s

repeal

of the

fecal coliform water quality standard for secondary contact

waters,

stated

that “in secondary contact waters, contact

with

the water

is either incidental or accidental

and

,,.

the

probability of ingesting appreciable quantities of water

is

minimal”.

~!2~v.P2!luti2~controlB~oard,

119 111, App.3d

at

566.

The

court

found no evidence

in the record

to suggest that

repeal of the fecal coliform water quality standard

for secondary

contact

waters will affect

the purposes

for which secondary

---

contact waters are used.

Consequently,

the court

held that

disinfection of fecal coliform bacteria will

no longer

be

required

of secondary contact waters.

Id.

The fecal coliform effluent standard readopted on August

1,

1985,

states that “no effluent governed by this Part shall

exceed

400

fecal coliform per

100 ml”

(35 Iii. Mm. Code 304.121),

As

it

now stands,

this effluent standard applies

to discharges

to

general

use and secondary contact

waters,

Yet,

no fecal coliform

water

quality standard exists

for secondary

contact waters,

since

the Board repealed

35

Ill. Mm.

Code

3c~2.406

and

that action was

UL)held

on appeal.

~

119

Ill.

App.3d

at 56L

Since no fecal colirorm water quality standard

exists for secondary contact waters,

the Board believes

it makes

little sense to have

a fecal coliform effluent standard

applicable to secondary contact waters.

The Board recognizes

that

a potential problem may exist at the

point

in

a stream

reach

where secondary contact waters become general use waters,

However,

the Illinois Environmental Protection Agency can

mitigate this problem through

its

permitting process

by imposing

permit conditions upon discharges

to

ensure

that

general use

water quality standards are met.

Under State law,

the Board

is required

to designate uses

for

various waters of the State and prescribe water quality and

effluent standards to protect those uses.

(Ill.

Rev.

Stat.

1983,

ch.

111—1/2, par.

1011(b);

35

Iii.

Mm.

Code 301,102),

At

a

minimum,

effluent standards are

imposed upon discharges

to ensure

bhat water quality standards are met.

However,

in

some cases

(i.e.,

the discharge

of metals)

the effluent standard

is more

stringent than is necessary

to meet

the

water quality standard

or

no water quality standard may exist

at all.

The imposition of

a

more stringent effluent standard

is necessary to allow

for

potential growth and to

avoid

the

synergistic effects associated

with some discharges.

This situation does not apply

to

feca.

coliforrn bacteria,

Under current

law,

no fecal coliform water quality standard

exists

for secondary contact waters

and no corresponding fecal

caliform effluent standard need be

met,

The Board believes

35

Ill. Mm, Code 304.121 should

be

modified to

reflect

this fact.

The Board,

therefore, hereby modifies its August

1,

1985

peremptory rulemaking action regarding 35

Iii. Mm.

Code

304.121.

Also,

the Board affirms

its August

1,

1985 peremptory

rulemaking regarding 35

Ill. Mm,

Code 302.209.

This peremptory

rulemaking will accurately reflect

the current law by revising

35

Ill. Adm.

Code 304.121

to exclude

the

applicability of

the fecal

coliform effluent standard

to secondary contact waters and by

adopting 35

Iii. Adm. Code 302.209

as

it existed prior

to

the

Doard’s October

26,

1982 action,

The Board hereby adopts

the

following amendments

t:.o

35

Iii.

Mm.

Code 302.209

and 304,i2~:

66-458

---

—3—

Section

302.209

Fecal Coliform

Based

on

a

minimum

of ~

than

a30

fecal

coliforms

(STORET

number 31616)

shall

not

exceed

a

geometric

mean

of

r

100_ml,

nor

shall

more

than

fö~of

the

sam~1es durin~~

30

~i

period exceed

40 0

pe r

100

Section

304.121

Bacteria

Noetf

1 uent

9ove

med

b

Part whIch ~L chat~esLo~nera1

use

waters

shall

exceed

~O

fec-i

~

~m~j’flflm1

No pef’een sha~ eeuee e~

a~4ew~ee~

ee~fe*~m

+~9R~n~m~e~

3~6~6+

~e exeee~&49Ee~ ~99 m~

any e~uen~wh4eli

~sehafgee

~e the

?e~ew4nq

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a~

Bu~4n~

the ~anths of May

ieew~be~3tem~e~7

w4thth ~O

~~ee

esthth4~em4~es~u~e~eamof

a

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ek~

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~7’~27

pa~s~l~9~-422~i~

~

2~s~ea~m~es+s~ath~em~eo~

~pe?~eem

of

a

wa~e~

~n~ake ~oe~

fe~

~e

eo

feo~p~eeees~~ng

wa~e~

S

upp~yt

e+

Any

~eea~en

where

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~ay ea~se

e~ee~t~e

~e

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ef anethe~e1~a~e1swath~p~a~~y

S~aft~a~5

4n~e~e~a~e

IT

IS

SO

ORDERED,

Board Member

~.

Theodore Meyer abstains.

I, Dorothy

M.

Gunn, Clerk of

the Illinois

Pollution Control

Board,

hereby certif;

that the above Order was adopted

on

the

~/~“

day

of

~

1985 by

a vote of

~

/h~

/

___

J~)

Dorothy

N. Gunn, Clerk

Illinois

Pollution Control Board

66~

457