1. Dorothy M. Gu?n, Clerk
      2. Illinois Pollution Control Board
ILLINOIS
POLLUTION CONTROL BOARD
December
6,
1989
IN
THE MATTER OF:
AMENDMENTS TO
35
ILL.
ADM.
)
R84-12
CODE 604.203 AND 605.104 OF
SUBTITLE F:
PUBLIC WATER
SUPPLIES
(Trihalomethanes)
ADOPTED RULE.
FINAL NOTICE.
OPINION AND ORDER OF THE BOARD
(by J.D.
Dumelle):
On October
5,
1982 the Board adopted amendments
to Chapter
6:
Public Water
Supply (now
35
Ill. Adm. Code Subtitle
F)
in
R8l—ll
(49 PCB l0l).*
That action established a maximum
allowable concentration of
0.10 mg/l for Total Trihalomethanes
(TTHM)
in finished drinking water
(35
Ill. Mm.
Code 605.104).
Those
rules,
however, applied only
to water supplies serving over
10,000 individuals.
In the Second Notice Opinion issued on July
21,
1982
(47 PCB 453),
the Board
stated:
Since these smaller supplies generally use
groundwater sources and have shorter transport
time,
they are considerably less likely to
have TTHM levels exceeding the 0.10 mg/l
standard.
At the same time,
universal
applicability would greatly increase the
number of water sample analyses which Illinois
Environmental Protection Agency would have
to
perform.
After more data are gathered
on
existing TTHM levels,
the Board may consider
an additional rulemaking
to
protect public
water supplies serving
less than 10,000
people.
Thus,
on May
3,
1984,
the Board entered an Order authorizing
inquiry hearings “to consider expanding
the applicability of
35
Ill. Adm.
Code 604.203 and 605.104.”
Two such hearings were held
on August
16 and 28, 1984.
Procedural History
On April
4,
1985,
the Board adopted an order proposing
to
amend
35
1??. Adm.
Code 604.203 such that
the
THM
standard of
35
Ill. Mm.
Code 604.202 would be made applicable
to all public
water supplies and to amend
35
Ill. Adm. Code
605.104 such that
I
06—127
—2—
the sampling requirement would be extended
to surface water
supplies
serving
fewer
than
10,000 people.
Public hearings on
the proposed
rule were held
on
May 31,
1985, and October 22,
1985.
On June
27,
1986,
the Illinois Environmental Protection
Agency
(Agency) submitted its proposal
to amend
35
Ill.
Adrn. Code
604.2~3and 605.104 and to add
35
Ill.
Adm.
Jode 601.105.
A
public hearing
was held on June
20,
1986
to support and
to
question the Agency proposal.
On October 22,
1986,
the Depart:ent
of Energy and Natural
Resources
(DENR)
submitted
its determination that an Economic
Impact Study
(E0IS) was necessary and would
he prepared.
On
October
7,
1987,
DENR submitted the complete
EcIS
to the
Board.
Hearings on the EcIS were conductec
on April
27,
1988
in
Carbondale,
Illinois, and on May 12,
1988
in Chicago,
Based on the record that had been prepared,
the Board on
December
15,
1988 adopted
for First Notice the Agency’s proposal,
with
certain modifications,
to amend
35
Ill. Adm. Code
601.105,
604.203, and 605.104.
Federal Drinking Water Regulations Status
As a preliminary matter, both at hearing on June
30,
1986,
and
in comments submitted June
13,
1988,
the Agency stated that
USEPA is
in the process
of proposing and promulgating
new
drinking water standards
for disinfection byproducts including
the four limitations for trihalomethanes and suggested that the
Board wait until USEPA has acted.
In the June,
1988, comments,
the Agency stated “tjhe
proposed regulations were to have been
completed last month and may
be imminent.”
On October
24,
1988,
USEPA published its semiannual Regulatory Agenda
(53 Fed,
peg.
42492).
USEPA’s current
timetable for proposing criteria for
disinfection treatment processes
is as follows:
Notice of
Proposed Rulernakings
-—
September,
1990,
Final Action
——
September,
1991.
As the Board can complete this proposed rule
change well before that September 1991 date
the Board
is not
persuaded to await federal action.
If and when federal action
is
completed,
the Board’s regulations can
be
reviewed for
consistency, and
if necessary, can be up-dated at that
time.
Background
Trihalomethanes are organic chemicals consisting
of one
carbon atom, one hydrogen atom and three halogen atoms
(R8l—ll,
21).
These are formed when free chlorine reacts with naturally
occurring compounds which are generally produced
by decaying
vegetation
(R8l—ll,
21).
Research by the National Cancer
Institute and
the National Academy
of Sciences shows
that TTHMs
may be carcinogenic and
carl lead to liver
or kidney disorders,
birth defects and central nervous system damage
(R81—ll,
23 and
R81—ll,
Ex.
9).
I06-12~
—3—
In recognition of these possible adverse health effects,
the
United States Environmental Protection Agency
(USEPA) promulgated
federal regulations
(44 Fed. Reg.
68624, R81—ll, Ex.
4, RBl—ll,
23—24) establishing a maximum allowable concentration of total
trihalometihanes of
0.10 mg/l and monitoring schedules.
The
federal regulations are part of
the Interim Primary Drinking
Water Regulations
(40 CFR Part
141) under
the Safe Drinking Water
Act (42 U.S.C.
300f
et
seq.) which requires states to adopt
rules
at least
as stringent
as the USEPA rules
to retain primary
enforcement
responsibilities
(R8l—ll,
27).
If primacy
is not
retained,
federal funding of the program could be
lost for
the
entire public water supply program
(R8l—ll,
28—29).
The present TTHM standard of
0.10 mg/l applicable
to public
water
supplies serving over 10,000 people was set
on
the basis of
the USEPA standard which
in turn was at
a level which was
estimated
to allow for
“one excess cancer death
for every 10,000
to 100,000 people with
a
lifetime exposure to this
in their
drinking water”
(R8l—ll,
24).
This standard has allowed the
state
to retain primacy.
Board Proposal
As previously
stated,
the Board adopted on April
4, 1985,
a
proposal
to make the 0.10 mg/l TTHM standard currently applicable
to public water supplies serving over 10,000 people also
applicable to public water supplies serving fewer than 10,000
people.
The Board believes that people served by small public water
supplies should
be afforded the same protections as those served
by larger suppliers.
To this end,
the Board proposed essentially
two amendments
to the existing public water supply regulations
(35 Ill. Mm.
Code 604.203 and 605.104).
Generally speaking,
the
amendments are explained as
follows:
Section 604.203:
The Board proposed to amend
subsection
(d)(2), which currently states
that
the 0.10 mg/l TTHM standard “does not apply to
supplies serving less than 10,000
individuals.”
The Board proposal deletes
that
exclusion and
would require compliance
to be
achieved by the small water supplies by a date
certain,
i.e., January
1,
1992.
Section 605.104:
The Board proposed to add a
new subsection
(b)
relating
to “surface water
supplies for supplies serving
fewer than
10,000 individuals.”
The proposed subsection
would require the surface water supplier
to
submit at
least one initial sample per
treatment plant
for maximum total
106~129
—4—
trihalomethane potential
(MTP)
(defined at 35
Ill. Mm.
Code 601.105) analysis.
After
that,
the supplier could request
the Agency to
determine that the results
of the sample and
the local
conditions indicate that the supply
is not likely
to
approach or exceed the
Maximum Allowable Concentration, such that
the
supply could continue
to submit one annual
sample.
If the sample exceeds
the Maximum
Allowable Concentration or
if
it
cannot
be
analyzed for MTP,
the supplier must
submit
samples
quarterly
in
accordance
with
35
Ill.
Adm. Code 605.104(a),
i.e.,
the
recruirernent
for supplies serving 10,000 people
r more.
The Board’s
rationale,
with
respect
to Loth the technical
feasibility and economical reasonableness,
for proposing the
amendments
is adequately set
forth
in the April
4,
1985
Opinion.
That rationale
is incorporated herein.
Agency proposal
On June
27,
1986,
the Agency submitted its own proposal to
amend the trihalomethane regulations with respect
to supplies
serving less than 10,000 people.
The Agency proposal was the
subject
of public hearing on June
30, 1986
~
tended by Board
staff, Agency staff, and members
of the public.
The Agency
proposal differed from the Board proposal
in certain fundamental
respects.
Section 106.105:
The Agency proposed
to add
a
definition
of
“Maximum Residence Time
Concentration”
for use as an alternative
analysis
to the MTP analysis proposed by
t. a
Board.
The definition
is set forth
in the
proposed amendment to Section 601.105 in the
Or~1er.
Section
604.203:
The Agency proposed no
change
to subsection
(d)(2).
The Agency would
c~ntinue to exempt supplies serving
fewer than
10,000 people from compliance with
35 Ill.
Adm. Code 605.104.
Section 605.104:
The Agency proposed to
require supplies
(of less than 10,000)
to
submit
at least one initial
sample per
treatment plant
for “MRTC analysis between May
1,
1987 and October
31,
1987.”
Thereafter,
much like the Board proposal,
the supplier can
request the Agency to determine that only one
annual sample per treatment plant need be
106 130
—5—
submitted to the Agency between May
1 and
October
31.
In support of
its proposed amendments to the Board proposal,
the Agency indicated that revision was necessary to lessen the
impact on smaller water supplies and on the Agency.
At hearing
on June
30,
1986,
the Agency stated that further revision
is
necessary to remove
the requirement
for measuring the
“Maximum
Trihalomethane Formation Potential
(MTP).”
R84—l2,
R.
at
226.
The Agency stated that:
The MTP analysis
is extremely labor—intensive
and expensive, and results will certainly
require further THM testing.
In view of the
evidence presented,
the Agency strongly
recommends
that the MTP requirement be deleted
and replaced with
a sampling program to
determine THM levels
in samples collected from
points
in distribution systems having maximum
residence time.
The rule change
the Agency
is proposing
provides that surface and surface—connected
water supplies serving
less than 10,000 people
initiate sampling
to determine the extent
to
which THMs may be forming
in the distribution
system.
This will allow collection of
information
to
determine the prevalence of small supplies
which may have THM5
in excess of the
standard.
It will also allow time for those
supplies which exhibit
a tendency to have THMs
in excess of the standard
to take steps
to
achieve voluntary compliance by making
adjustments
to the treatment process.
R84—l2,
R.
226—227.
Consistent with this position,
the Agency proposed that the
smaller water suppliers submit samples for “Maximum Residence
Time Concentration”
(MRTC)
analysis.
For clarity,
the Agency
proposed a definition of MRTC,
i.e.,
“the concentration of total
trihalomethanes found
in a water sample
taken at
a point
of
maximum residence time in the public water
supply system.”
Economic Impact
The Economic Impact Study
(EcIS)
submitted by the Department
of Energy and Natural Resources
(DENR) addresses
the economic and
operational implications of both the Board and the Agency
proposals.
DENP. found that there are 381 Illinois public water
supplies potentially affected by the proposed regulations.
1fl6~131
—6—
Further,
DENR determined that
these
381 public water supplies
serve a total
of 846,432 individuals.
That
is, 846,432 more
people will
be protected against
trihalomethanes
in public
drinking water supplies.
DENR estimated that the annualized
monitoring
costs incurred under
the Board proposal would be
$131,612
($103,981 incurred by the State,
$27,631
incurred by the
public water supply), and that
the annualized monitoring costs
incurred
~.nder the ~gency proposal would be $113,562 ($85,930
incurred by the State,
$27,631
incurred by the public water
supply).
Thus,
the Agency monitoring proposal would cost
approximately $18,050
less per year
than the Board proposal.
This works
out
to
a total direct cost of conducting
a MTP test
(Board proposal)
at $125.80 compared with $78.40
for
a one—sample
TTHM test
(Agency proposal).
EcIS at
37.
In light
of the
fact that USEPA and the State
have
previously concluded that the potential health effects were great
enough to warrant adoption of
trihalomethane regulations
for
public water supplies serving more than 10,000 people,
the Board
does not believe that
the costs associated with either
of the
proposals
is unreasonable~
However,
to minimize the impact
upon
the public water supplies and upon the Agency,
the Board will
proceed with the less expensive proposal,
i.e.,
the Agency
proposal.
However, the Board believes
that certain revisions
to
the Agency proposal are necessary
(1)
to accomplish the goal of
reducing the amount of
the trihalomethanes
to acceptable
levels,
and
(2)
to comply with the rulemaking requirements of the
Administrative Procedure Act.
Revisions To Agency Proposal
First,
the Board notes that the Agency proposed
a definition
for “maximum residence time concentration”
of
total
trihalomethanes
found in
a water sample taken at
a point
of
maximum residence time
in the public water supply.
At hearing,
Board staff questioned the definition of “maximum residence time”
and questioned
the possible value
in proposing
a definition
for
it
as well.
Thereafter,
the Agency suggested as
a
definition
for
maximum residence
time:
“an active part
of the distribution
system remote from the treatment plant.’
The Board amended this
proposed definition
at First Notice.
Secorui,
the Agency proposed no amendment
to
35
Ill.
Adm.
Code 604.203(d)(2),
i.e., which excludes from the 0.10
rng/l
standard supplies serving less than 10,000 people.
The Board
believes that this subsection must be amended
if supplies serving
fewer than 10,000 people are to meet
the 0.10 mg/i
standard,
which
is the goal
of this rulemaking proceeding.
Therefore,
this
subsection
is amended
to require compliance by supplies serving
fewer than 10,000
by a date certain.
The date
of January
1,
1992,
is the date proposed so as
to provide notice to public
water supplies well
in advance,
and to provide time for
completion of this rulemaking proceeding.
106
132
—7—
Third, the Board has amended the second sentence of Section
605.104(b)
of the Agency proposal
as follows:
“After written
request
by the supply and the determination by the Agency that
the results of the sample am~~ea+
e~e~
indicate that the
supply
is not likely
to epp~o~eh~r exceed
.
.
.“
The Board
believes
that “and local conditions” and “approach” are terms
too
uncertain and would only confuse
those who must comply with the
regulation.
Fourth,
because
the final two sentences proposed
in Section
605.104(b)
were the same as the existing language in 605.104(a),
the Board has simply referenced Section 605.104(a)
rather than
restate
the language.
FIRST
NOTICE COMI~ENT
On December
15,
1988,
the Board proposed for First Notice
amendments
to
35
Ill. Adm.
Code Subtitle
F which would expand the
0.10 milligrams per liter
(mg/l) standard
for total
Trihalomethanes
(TTHM)
in finished drinking water currently
regulating public water supplies serving over
10,000 individuals
to public water supplies serving
fewer
than 10,000 individuals.
The proposed amendments were published
in the Illinois Re9ister
on January
13,
1989
at
13
Ill. Reg.
255,
262,
and 269.
On
February
24,
1989
(13 Ill. Reg.
2539)
a Notice of Correction was
published because two of the existing subsections
(now being
relabeled as subsections
(e) and
(f)) were inadvertently omitted
from the First Notice publication.
The Notice of Correction
merely corrected that oversight and adds no new substance to
the
proposed amendments.
The 45—day public comment period expired on
March
1,
1989;
five public comments were submitted.
The five public comments were submitted as follows:
Public
Comment number
(“P.C.”)
4,
from the Northern Illinois Water
Corporation,
P.C.
5 from the Administrative Code Division of the
Office of the Secretary
of State,
P.C.
6 from the
Illinois
Environmental Protection Agency
(“Agency”),
P.C.
7 from WSCO
Development,
Inc., and P.C.
8 from Hickory Highlands Water
Company.
The Northern Illinois Water Corporation stated that the
proposed amendments will cause
no problem because
it
is
already
performing the required tests.
WSCO Development stated that
it
is
a
“small family owned and operated water company supplying
approximately 200 customers.”
Hickory Highlands Water Company
stated that
it
is
a “small family owned and operated water
company supplying water
to approximately
86 customers.
The water
is purchased from the City of Bloomington.”
All of the comments set forth
in P.C.
5 from the
Administrative Code Division were incorporated into the Second
Notice Order.
106
133
—8—
The majority of the substantive comments were submitted
in
P.C.
6 by the Agency.
The Agency’s first comment
is that it
cannot provide
the laboratory analyses
to implement proposed
Section 605.104(b).
At First Notice Section 605.104(b)
stated
that
a public water supply shall submit
at least one initial
sample per treatment plant
to the Agency for analysis,
and then
submit either one sample annually
or one sample quarterly
thereafter depending
on the results.
The Agency argues that
it
cannot provide any sampling analysis whatsoever
to implement
proposed Section 605.104(b)
because
it does not have available
funds
for such laboratory analyses
in
its current budget.
Thus,
the Agency suggests changing the requirement
to reflect
that
the
sample shall be collected by the water supply,
analyzed by a
certified laboratory,
and then reported to the Agency,
thereby
transferring the costs to the water supplies.
The Board
is sympathetic but not altogether persuaded
by
this position.
Although the Board appreciates the Agency’s
concerns,
the Board does not believe that
it
is,
or ought
to be,
precluded from adopting a necessary regulation
for the sole
reason that
the Agency possesses scarce resources with which to
implement the regulation.
The Board notes that Section
14 of the
Act states:
The General Assembly finds
that state
supervision of public water supplies
is
necessary
in order
to protect the public from
disease and to
assure an adequate supply of
pure water for all beneficial purposes.
It
is
the purpose of this Title
to assure adequate
protection of public water supplies.
To that end, Section 17
of the Act states:
The Board may adopt regulations governing the
location,
design,
construction, and continuous
operation and maintenance
of public water
supplies installations, changes or additions
which may affect the continuous sanitary
quality, mineral quality,
or adequacy of the
public water supply, pursuant
to Title VII
of
the Act.
Section
27
of Title VII states that
in promulgating regulations
the Board shall take into account:
the existing physical conditions,
the
character
of the area involved,
including the
character of surrounding land uses,
zoning
classifications,
the nature of the existing
air quality,
or
receiving body of water, as
the case may be, and the technical feasibility
106~134
—9—
and economic reasonableness of measuring or
reducing the particular
type of pollution.
Clearly Section
14 of the Act articulates a policy of protecting
the public from disease and contaminants
in
its public water
supplies.
Since 1982, Board regulations have established
a
maximum allowable concentration for TTHMs
in the finished
drinking water
of public water supplies serving
over 10,000
individuals.
The
Board believes
that individual consumers of
public water supplies serving
fewer
than 10,000 are equally
entitled
to the same protection.
Thus,
the Board believes that
the scope of the existing rules must be extended to cover
supplies serving
fewer
than 10,000 individuals.
That
this will
increase
the workload of
the Agency as a result
is true~ most
Board rulemakings do.
However,
the Board
is sympathetic to the Agency’s
concerns.
Consistent
with
the Board’s statutory responsibility
to adopt economically reasonable regulations which assure
adequate protection of public water supplies the Board has
revised the language of
Section 605.104(b).
The Board has
rewritten Section 605.104(b)
to parallel the language of Section
605.104(a), which requires
the submission of either
the sample or
the analytical results
of a sample from
a certified laboratory.
Were
the Board to decline altogether
to adopt
a regulation
simply because
the Agency states that
it cannot afford to
implement
it, the Board believes that
it would be tantamount to
delegating
its rulemaking authority to the Agency
in
violation of
the Act.
For all effective proposes,
the Agency would be
deciding which rulemakings would proceed and which would not.
But where,
as here,
the Board believes that the proposed rule
is
necessary to protect
the public
(served by supplies serving fewer
than 10,000)
and that
it
is technically feasible and economically
reasonable,
the Board will proceed to fulfill
its
responsibility
under Sections 14,
17, and
27
of
the Act.
Cost of Compliance
The Agency’s next comment
is that the Board
“has not
adequately considered
the costs of
the proposed regulation.”
In
addition
to
its previously addressed argument,
the Agency
states
that another
significant and unavoidable immediate cost
to
the
Agency would be the revision of the Agency’s data system to
include supplies under
10,000.
The Agency argues that the record
maintenance for TTHM for supplies under 10,000 would have to be
manually kept
or revision of the present data system would
be
required.
To revise
the present data system to include the
smaller
supplies,
the Agency estimates
a cost
of
$5,000.
The
Agency also maintains
that
to implement
the sampling
in
accordance with the proposed schedule,
a general mailing
to all
supplies under 10,000 needs
to be done.
The Agency points
out
106
135
—10—
that this mailing will be costly, another expense not provided
fur
in
the Agency budget.
The Board is not unaware
that the implementation of a
regulation requires expenditures.
The $5,0~0 cost
to revise
the
data system and the unspecified cost of prcuiding
notice
to the
supplies does not appear
to be unreasonable
in light
of the
benefits derived.
The Board points out that the Department
of
Energy and Natural Resources (DEN~), in its Economic Impact Study
(EcIS),
found
that the cost per examination
(which includes
4
samples)
is $215.40 and that the proposed rule potentially
affects
381 public water supplies which
in turn serve a
total
of
846,432 individuals.
TL~yalso estimate that less than 20
of
the sources are likely to be out of compLance with the proposed
total TTHM standards.
Nothing submitted in the Comments suggests
that this estimation
is
in error.
Thus,
in light
of the
protection afforded those potential
846,432 individuals,
the
Board believes the expenditures estimated above are reasonable.
The Agency also states that the costs
to public water
supplies will be greater
than those considered
by the Board.
As
the Board has revised
the text
of Section 615.104(b),
as noted
above,
the Agency’s comments on the costs of analysis
to the
supply merit attention.
The Agency states that one of the
greatest costs
to the supplies will
be the costs of upgrading the
treatment plant.
The Agency maintains
that some satellite
supplies may
have no equipment at
all,
and
will
have
to fund,
design and construct equipment
to
come into compliance.
The
Agency, however,
does not provide cost estimates.
The Board
is not persuaded.
The EcIS provides approximately
fourteen
(14)
alternative strategies available
to public water
supplies for reducing TTHMs and
the costs associated with each.
(EcIS,
pp.
45—73).
Cost estimates vary depending on the strategy
employed and the number
of people served~ Two of the strategies,
“Control of Precursors at the Source” and “Moving the Point of
Chlorination Downstream” require no direct capital costs and a
minimal amount of labor time and resources
to implement.
Also,
the costs associated with the other strategies do not appear to
be unreasonable.
The Board notes
that the many variable factors,
such as
control strategies,
population served,
etc., can result
in many
cost scenarios,
some of which,
if all else fails, may appear
to
be unreasonable.
The Board notes
that where compliance with this
regulation would impose an unreasonable hardship upon the water
supply,
the Environmental Protection Act provides certain forms
of relief.
Sampling and Compliance Dates
lfl’- 136
—11—
The Agency’s next comment
is that the May—October,
1989
initial sampling date and the January
1,
1990 compliance date are
arbitrary and unreasonable.
The Agency argues that for
at least
a portion of
the May-October,
1989 sampling period,
it
is likely
that no adopted
regulations will exist.
The Agency believes that
public water
supplies may be unwilling to initiate sampling
in
response to proposed regulations.
Further, the Agency argues,
even
if
the samples can be collected
then more sampling wIll
be
required for many supplies.
Further,
the Agency argues
If the initial sample exceeds 0.100 mg/l,
one
year
of quarterly sampling must still
be
done.
Requiring compliance
by January
1,
1990
will
put many supplies out
of compliance with
Board
regulations even when sampling has not
shown them to
be
in violation of
the
standards!
The number of supplies
in that
situation could
be significant,
prompting a
rash
of variance applications whose compliance
plan would consist of
a
request for one—year
sampling.
(P.C.#6,
at p.4)
The Agency believes that the first practical compliance date
would be January
1,
1992.
To a certain extent,
the Board
is persuaded
to extend the
dates
for sampling and compliance.
The Board agrees that the
rulemaking proceeding may not become finally effective,
i.e.,
through Second Notice review by the Joint Committee on
Administrative Rule (JCAR),
final adoption,
and filing with the
Secretary of State, until
after November
1,
1989.
So as to
provide adequate time in which to provide notice
to the supplies
and an opportunity
to prepare to comply,
the Board has amended
the initial sampling dates
to May
1,
1990 through October
31,
1990.
Moreover,
the Board believes that this extension will
provide the Agency with adequate time to seek the resources
necessary to implement the rule,
as previously discussed.
Similarly,
the date of
required compliance has also been
extended.
The Board believes that
a compliance date of January
1,
1992
is reasonable.
As samples will be submitted between May
and October,
1990,
the supplies should be aware by late 1991
whether
or not they are
in compliance,
such that they can begin
the intended process of coming into compliance.
Given the compliance schedule,
the Board
is not persuaded to
await
the federal Disinfectant Byproduct Regulations.
The Agency
states that USEPA may adopt more stringent standards for TTHMs
and that these regulations are due for publication
in early
1990.
The Agency believes apparently that
for purposes of
106—137
—12—
consistency with federal requirements, Illinois would do well to
await federal action.
As the Board stated
in its first Notice
Opinion,
USEPA’s current
timetable,
as articulated
in its
semiannual Regulatory Agenda
(53 Fed. Reg.
42492),
is as
follows:
Notice of proposed Rulemaking
in September,
1990, and
Final Action on the rulemaking
in September,
1991.
The Agency
has offered no support
for its statement
that the federal
regulation
is “due
for publication in early 1990.”
Further,
the
Board notes that USEPA’s timetable
is speculative
as the proposal
itself
is
a year and half
away.
Finally, even i~USEPA adheres
to its articulated schedule,
it
is unlikely that
public water
supplies will be
required
to begin sampling untIl
the
summer of
1992,
thereby extending
a compliance date
to
possibly 1993.
Based on these considerations the Board
finds
that awaiting
federal action
is not
in the best
interest of the public.
State Mandates Act
The Agency’s next comment
is ttat the State Mandates Act
(Ill.
Rev. Stat.
ch.
85, para 2201
et seq.
(1987)) will likely
apply.
The Agency states that in
this proceeding
the Board
is
proposing
to extend the existing TTHM regulations beyond the
scope of the federal mandate
(40 CFR 141.30)
to apply
to surface
water supplies serving fewer than 10,000 people.
The Agency
argues that becaus?~ the Board’s action exceeds the federal
mandate and requires expansion of services and additional
expenditures of
local government,
the Board
is creating
a state
mandate.
The Agency’s argument on this point is
as follows:
Section 6(b) of the State Mandates Act
requires that
the General Assembly shall
reimburse the local government
at least
50
but not more than 100
of the increase
in cost
attributable
to the mandate,
unless
thE
service mandates meets one of the exclusion
requirements.
The most applicable of the
service mandate exclusions would likely be
that excluding annual net costs of
less than
$1,000.
If the mandated testing costs less
than $1,000,
the exclusion may apply.
Interpretation of
the Board rule may or may
not include the cost
of control
for TTHM as
being mandated by the regulation.
Ostensibly,
the regulation only mandates a TTHM standard,
not installation of control equipment.
But,
in reality, imposition of any standard does
mandate for some community water supplies the
installation of control equipment.
A question regarding the actual enforceability
of this regulation would exist
if the State
Mandates Act does apply.
Section
8 of the Act
106—130
—13--
states that if the General Assembly has not
made the necessary appropriations to implement
the service mandate, the local government
is
relieved of the obligation
to implement the
service mandate.
Court interpretation of the applicability of
the State Mandates Act on
a case—by—case basis
could impose some formidable
legal burdens on
the enforcement of
these regulations.
(P.C..#6 at
p.
7)
The Board concurs with the Agency inasmuch as the Board
believes that the State Mandates Act may apply.
However, the
Board does not share the Agency’s apparent position that the
possible application of the State Mandates Act should have a
chilling effect on the progress
of
Board rulemakings.
Despite the existence of the State Mandates Act since
1981,
the Board notes that
the issue of its applicability to a
particular
Board rulemaking proceeding
is here of
first
impression.
Although the Board complies with Section
5 of the
State Mandates Act by preparing a statement of Statewide Policy
Objectives
for each of its rulemakings,
the Board has not been
called upon
to address the interplay,
if any,
between the Board’s
rulemaking authority and the provisions of the State Mandates
Act.
As previously set forth
in the Opinion,
the Board’s
rulemaking authority
is generally set forth
in Section
27
of the
Act.
Section 27 requires the Board to consider
certain aspects
of
the proposal.
With regard
to State Mandates Act
interplay,
the most relevant consideration is that of “economic
reasonableness of measuring or reducing the particular
type of
pollution.”
In this rulemaking,
the Board has found that the
implementation of the regulation will
be economically
reasonable.
The Board believes that this finding of economic
reasonableness exists whether
or not the State Mandates Act
applies and
its provisions are carried out.
The Board believes
that the regulation is necessary
to protect the public -and that
the costs
to those
who
must comply are
reasonable.
That
the
State Mandates Act may provide assistance
to local governments
in
the implementation
of
this regulation
is well and good;
however,
it
does not figure into the Board’s consideration of economic
reasonableness.
In other words,
if the State Mandates Act does
not operate
to provide assistance
to a
local government,
that
does not change the finding of economic reasonableness.
It does
not make
an economically reasonable rule economically
unreasonable.
Thus,
the Board does not believe that,
in this proceeding,
the States Mandates Act merits further
consideration; the Board
has found the rule to
be economically reasonable in and of
itself.
106 139
—14—
As its final comment,
the Agency responded
to three
questions raised in the First Notice Opinion.
F~rst,
the Agency
stated that the language of Section 605.104(a)
should not be
amended
to clarify specifically where samples should be
taken.
The Agency argues that because each supply
is different,
no one
specific place
for sampling can be identified for all systems.
The Agency maintains that it must work
with
the supply to
determine the appropriate sampling points.
The Board accepts the
Agency’s position and will not change
the
language.
Second,
the Agency states that it
is unaware of any
circumstances when a sample cannot
be analyzed for maximum
residence time concentration
(MRTC),
except where collection or
lab errors
occur
as
a result of air bubbles
in the sample.
Thus,
it
is the Agency’s position that no other method of testing
should be specified.
Here,
too,
the Board accepts the Agency
position and will not change
the language.
Finally,
the Agency states that because
it cannot perform
analyses
for the supplies but forsees a possibility
of private
backlog,
the phasing
in of the regulation should be provided such
that all sampling must be completed within
18
months
of
the May
following adoption.
As the Board extended the deadlines for
sampling and compliance,
as discussed above,
the Board believes
that
a phasing—in period
is no longer warranted.
SECOND NOTICE REVIEW
On October
19,
the Board submitted the proposed rule,
as
amended after
First Notice
comments,
to the Joint Committee on
Administrative Rules
(JCAR)
for
its Second Notice review.
During
the Second Notice period, JCAR suggested certain non—substantive
drafting and editing changes
to the text of
the amendments.
Also,
JCAR suggested the addition of
a cross reference
in Section
605.104(a)
to Section 604.202 where the “Maximum Allowable
Concentration”
is set forth.
The Board agreed
to each of these
suggestions.
At
its meeting on November
16,
1989, JCAR issued a
Certificate of No Objection
to the proposed amendments.
As
a
result,
the Board hereby proceeds
to Final Adoption.
The Board notes that these amendments will need to be later
recodified
in order
to be made compatible with the “identical
in
substance” amendments recently proposed in R88—26
to implement
Section 17.5 of the Envronmental Protection Act
see
Proposal for
Public Comment,
Illinois Register:
Vol.#l3,
Issue#48 (December
1,
1989)
pp.
18668
(Part
604);
18822
(Part
605);
18816
(Part
606);
18683
(Part
607);
18690
(Part 611).
ORDER
The following amendments are hereby proposed for Final
Adoption
The Clerk of the Board
is directed
to submit these
106~-140
—15—
proposed amendments to the Secretary of State for publication
in
the Illinois Register.
TITLE
35:
ENVIRONMENTAL PROTECTION
SUBTITLE F:
PUBLIC WATER SUPPLIES
CHAPTER
I:
POLLUTION CONTROL BOARD
PART 601
INTRODUCTION
Section
601.101
General Requirements
601.102
Applicability
601.103
Severability
601.104
Analytical Testing
601.105
Definitions
Appendix
References
to Former Rules
AUTHORITY:
Implementing Section
17 and authorized
by Section
27
of the Environmental Protection Act
(Ill.
Rev.
Stat.
1987,
ch.
111 1/2, pars.
1017
and 1027).
SOURCE:
Filed with Secretary of State January
1,
1978;
amended
at
2
Ill. Reg.
36,
p.
72, effective August
29,
1978;
amended at
3
Ill.
Reg.
13, p.
236, effective March
30,
1979;
amended and
codified at
6 Ill.
Reg.
11497,
effective September
14,
1982; amended at
6
Ill. Reg.
14344,
effective November
3,
1982;
amended
in R84—l2 at
Reg.
________
,
effective
Section 601.105
Definitions
For purposes of this Chapter:
“Maximum Residence Time Concentration”
(MRTC) means the
concentration of total trihalomethanes
found
in
a water
sample taken at a point of maximum residence time
in the
public water supply distribution system.
“Point Of Maximum Residence Time”
means
that part
of
the active portion of
the distribution system remote
from the treatment plant where
the water has been
in the
distribution system for the longest period of time.
(SOURCE:
Amended at
—
Ill. Reg.
effective
__________
TITLE
35:
ENVIRONMENTAL PROTECTION
SUBTITLE
F:
PUBLIC WATER SUPPLIES
CHAPTER
I:
POLLUTION CONTROL BOARD
PART 604
106—14 1
—16—
FINIShdD WATER AND RAW WATER QUALITY AND QUANTITY
SUBPART A:
BACTERIOLOGICAL QUALITY
SUBPART B:
CHEMICAL AND PHYSICAL QUALITY
Section
604.201
Finished
Water Quality
614.202
Contaminants and Maximum Allowable Concentrations
6L4.203
Exceptions
to Maximum Allowable Concentrations
604.204
Action Pursuant to Exceedance
of Maximum Allowable
Concentrat ion
AUTHORITY:
Implementing Section 17 and authorized by Section
27
of the Environmental Protection Act
(Ill.
Rev.
Stat.,
1987,
oh.
111 1/2,
pars.
1017 and 1027).
SOURCE:
Filed with Secretary of State January
1,
1978;
amended
at
2
Ill. Reg.
36,
p.
72, effective August
29,
1978;
amended at
3
Ill. Reg.
13,
p.
236,
effective March
30,
1979;
amended and
codified
at
6
Ill.
Reg.
11497,
effective September
14,
1982;
amended at
6
Ill. Reg.
14344,
effective,
November
3,
1982;
amended
in R84—l2 at
—
Ill. Reg.
effective
________________
Section 604.203
Exceptions
to Maximum Allowable Concentrations
The following supplementary conditions apply to the concentra-
tions listed
in Section 604.202.
d)
Total Trihalomethanes:
2)
Supplies serving
~s7eee
10,000 or more individuals
shall comply with the Total Trihalomethanes
standard listed
in Section 604.202 b~the effee~ve
date
t~f
these ~e~a~i~ns.
Supplies
serving
±e7eee
~ô
~4~-999
fewer than 10,000
individuals shall
comply with this standard by Ne~ember 5-~ ~983
January
1,
1992.
Ph~ ~dar~
does n~ app~yth
~ppHe9
~e~v~r~g ie~ ~ha~ ~ø7~ø9
(SOURCE:
Amended at
Ill. Reg.
effective
_________
TITLE
35:
ENVIRONMENTAL PROTECTION
SUBTITLE
F: PUBLIC WATER SUPPLIES
CHAPTER
I:
POLLUTION CONTROL BOARD
PART 605
SAMPLING AND MONITORING
106-142
-17—
Section
605.101
Frequency of Bacteriological Sampling
605.102
Minimum Allowable Monthly Samples
for
Bacteriological Analysis
605.103
Frequency
of Chemical Analysis Sampling
605.104
Frequency of Trihalomethane Analysis Sampling
605.105
Monitoring Requirements for Radiurn—226,
—228, and
Gross Alpha Particle Activity
605.106
Monitoring Frequency
for Radium—226,
—228,
and
Gross Alpha Particle Activity
605.107
Monitoring Requirements
for Man—Made Radioactivity
605.108
Monitoring Frequency for Man-Made Radioactivity
605.109
Surface Water Supplies Additional Monitoring
Requirements
605.110
Modification
of Monitoring Requirements
Appendix
References
to Former Rules
AUTHORITY:
Implementing Section
17
and authorized by Section
27
of the Environmental Protection Act (Ill.
Rev.
Stat.
1987,
ch.
111
1,/2, pars.
1017 and 1027).
SOURCE:
Filed with
Secretary of State January
1,
1978;
amended
at
2
Ill. Reg.
36, p.
72, effective August
29,
1978;
amended and
codified at
6
Ill.
Reg.
11497,
effective September
14,
1982; amended
at
6
Ill. Reg.
14344,
effective November
3,
1982;
amended
in R84—l2
at
____
Ill.
Reg.
____
,
effective
___________
Section 605.104
Frequency of Trihalomethane Analysis Sampling
a)
Surface Water Sources for Supplies Serving 10,000 or
More Individuals:
Supplies serving 10,000 or more indi-
viduals shall submit at least four samples per treatment
plant per quarter
for analysis or analytical results
from a certified laboratory for Total Trihalomethanes
to
the Agency.
After results of four consecutive quarters
demonstrate consistent Total Trihalomethanes
concentrations below the Maximum Allowable
Concentration,
as set forth
in
35
Ill.
Adru.
Code
604.202, and upon written application by the supply,
the
Agency may reduce the samplin~frequency to one ~
per quarter until
the Maximum Allowable Concentration
is
exceeded or until
a significant change
in source or
treatment method
is made.
b)
Surface Water Sources for Sup~iesServing
Fewer than
10,000 Individuals:
Supplies serving
fewer than 10,000
individuals
shall submit at least one initial sample per
treatment plant
for ~
rana~~J~resuits from
a certified laboratory for Maximum Residence Time
Concentration
(MRTC)
taken between May
1,
1990 and
October
31,
1990.
After written request
by the supply
106—1L~3
—18—
and the determinatio
the Agency that the results
of
the sample
indicate that
the supply is
not
likely
to
exceed the Maximum Allowable Concentration the
5U~~i~
shall continue
to submit one annual sample per treatment
plant
for analysis or analytical results
from a
certified laboratory
to the Agency taken between May
1
and
October
31
of succeeding years.
If the sample
exceeds the Maximum Allowable Coriventration,
the supply
snail submit
to the Agenc1
samples
in accordance with
the sampling frequency specified
in Section
605.104(a)
above.
bc)
Groundwater Sources for Supplies Serving
10,000 or More
Individuals:
Supplies serving 10,000 individuals
or
more shall submit at
least one sample per treatment
plant
for MTP analysis.
After written request by the
supply and the determination by the Agency that the
results of the sample and local conditions indicate that
the supply
is not likely to approach or exceed the
maximum allowable concentration, the supply shall
continue to submit one annual sample per treatment
plant,
or report of analysis
by
a certified laboratory
to the Agency.
If the sample exceeds the Maximum
Allowable Concentration or cannot be analyzed for MTP,
the supply shall submit samples
in accordance with
Section 605.104(a).
~j
Groundwater Sources
for Supplies Serving Fewer Than
10,000 Individuals
—
Supplies serving
fewer
than 10,000
individuals are not required
to submit samples for
trihalomethane analysis under this Section.
ee)
Significant changes
in water
sources or
treatment will
require testing
in accordance with Section 605.104(a).
~f)
If the result of an analysis made pursuant
to the
reduced monitoring schedules provided by Section
605.104(a)
indicates that the level
of Total
Trihalomethanes exceeds
the Maximum Allowable
Ccricentraoion listed
in Section 604.202,
the owner
or
operator
of the supply shall initiate analysis of one
check sample promptly after the exceedance
is reported
to the supply.
If the check sample confirms that the
level
of Total Trihalomethanes
exceeds
the Maximum
Allowable Concentration,
the supply shall sample
in
accordance with the frequency set out
in Section
605.104(a),
for at
least one year.
(Source:
Amended at
Ill. Reg.
effective
_________
)
IT
IS
SO ORDERED.
106 144
—19—
I,
Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify that the above O~inionand Order was
adopted on the
______________
day of ~
,
1989 by a vote
of
~
Dorothy M. Gu?n, Clerk
Illinois Pollution Control Board
10f~-145

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