P97025.PDF

ILLINOIS POLLUTION CONTROL BOARD

December 18, 1997

IN THE MATTER OF:

CONFORMING AMENDMENTS FOR THE

GREAT LAKES INITIATIVE: 35 ILL.

ADM. CODE 302.101; 302.105;

302.SUBPART E; 303.443 AND 304.222

)

R97-25

(Rulemaking - Water)

Adopted Rule. Final Order.

OPINION AND ORDER OF THE BOARD (by G.T. Girard, C.A. Manning, J. Yi):

On March 21, 1997, the Illinois Environmental Protection Agency (Agency) filed a

rulemaking proposal to amend the water quality standards for the Lake Michigan Basin in

conformance with the federal Great Lakes Initiative (GLI). Along with the proposal, the

Agency filed a statement of reasons (Reasons) and a certification pursuant to Section 28 of the

Environmental Protection Act (Act) (415 ILCS 5/28 (1996)) that the amendments are federally

required. The Agency also asked the Board to waive certain filing requirements. On April 3,

1997, the Board accepted the Agency’s proposal for hearing, accepted the certification that the

rule was federally required, and granted the motion to waive certain filing requirements.

The first hearing was held in this matter on May 19, 1997, before Board Hearing

Officer Marie Tipsord. At that hearing, the Agency presented testimony to support the

proposed rules. On June 19, 1997, the Board adopted a first notice opinion and order based

on the Agency’s proposal, the first hearing, and the two public comments filed by the Agency

prior to first notice.

On July 28, 1997, a second hearing was held in this matter. At that hearing additional

testimony by the Agency and testimony from Mr. Jeffrey Smith from Commonwealth Edison

on behalf of the Illinois Environmental Regulatory Group (IERG) was presented. The Board

has received numerous public comments in this matter

On October 16, 1997, the Board proceeded to second notice pursuant to the Illinois

Administrative Procedure Act (5 ILCS 100/5-5

et seq

. (1996)) for review by the Joint

Committee on Administrative Rules (JCAR). On December 16, 1997, JCAR issued a

certification of no objection to this rulemaking. The Board agreed to make several changes

requested by JCAR and those are discussed in detail below. In the sections that follow, the

Board will discuss certain procedural issues including a motion to create a subdocket. The

The Board received several public comments after the second notice was adopted. The Board

acknowledges the receipt of those comments; however, the comments were not considered in

making the Board’s determination.

Board will also discuss issues which have arisen since the first notice opinion and order and the

changes to the rules which will be made in response to those issues.

PROCEDURAL MATTERS

On September 18, 1997, the Board granted several motions which had been filed in this

proceeding regarding the filing of comments and supplementing the record. After that order,

the Board received three filings asking to file comments instanter: on September 26, 1997,

from R. Lavin & Sons; and on September 29, 1997, from Illinois Environmental Regulatory

Group and from the National Wildlife Federation. All three motions to file instanter were well

beyond the date the hearing officer had set for closing this record and well beyond the Board’s

normal seven day response time. See 35 Ill. Adm. Code 101.241. Therefore, the Board

denied the motions to file instanter, and the comments were not considered in preparing the

rule for second notice.

CREATING A SUBDOCKET

On September 4, 1997, IERG filed a motion (IERG Mot.) seeking the establishment of

a subdocket. On September 12, 1997, the Agency filed a response to the IERG motion (Sept.

12 Ag. Resp.). Although the Board received no additional filings specifically characterized as

a response to the motion, other commentors did discuss the issue raised in the motion and

those comments will be discussed below.

IERG was asking the Board to create a subdocket for the purpose of addressing the

issue of mixing zones under the GLI. In support of the request, IERG argued that the

Agency’s proposal was based on the federal GLI proposal, and on June 6, 1997, the D.C.

Circuit Court of Appeals issued an opinion which vacated several provisions of the federal GLI

including the phase out of mixing zones for Bioaccumulative Chemicals of Concern (BCC).

American Iron and Steel Institute v. USEPA et al

1997 WL 297251 (D.C. Cir June 6, 1997)

(Exh. 9). The Court vacated the phase out of mixing zones finding that USEPA had failed to

consider the enormous costs that would be imposed on dischargers because of the phase out.

Exh. 9 at 12.

IERG maintained that since the phase out of mixing zones contained in the Board’s

proposed rule is based on the federal GLI provision struck by the court, the record in this

matter lacked economic justification for the phase out. IERG Mot. at 2-3. IERG argued that

the Agency relied on the economic analysis conducted by USEPA in support of the Agency’s

assertion that the GLI provisions are economically reasonable. IERG Mot. at 2-3, citing

Agency Reasons at 9-10. IERG continued its argument stating that as the United States

Environmental Protection Agency (USEPA) record does not address the economic impacts of

the mixing zone phase out, the Board’s record was also “void of economic data for the Board’s

consideration.” IERG Mot. at 3.

IERG also believed that a subdocket would be helpful to address the human health and

wildlife standards for polychlorinated biphenyls (PCBs) which were also vacated by the Court.

IERG Mot. at 3. IERG argued that although USEPA has promulgated revised human health

and wildlife criteria in March of 1997, USEPA would be further revising the human health

criteria. IERG Mot. at 3. IERG based this comment on the memorandum from Jim Hanlon

of USEPA submitted by the Agency to the Board on September 2, 1997 (USEPA

memorandum).

The Agency opposed the creation of a subdocket for consideration of a phase out on

mixing zones for BCCs as well as the standard for PCBs. Sept. 12 Ag. Resp. at 1. The

Agency believed both proposals were ripe for decision at the time the Board proceeded to

second notice and both are supported by the record.

. The Agency opposed a subdocket

concerning PCBs because the Agency suggested an amendment to the human health PCB

standard as a part of its comments which would provide a standard that would be consistent

with the standard suggested in the USEPA memorandum. Specifically, the standard does take

into account the revised cancer potency factor of 2. Therefore, the Agency maintained that

additional evidence was not needed and a subdocket need not be opened to establish Lake

Michigan Basin water quality standards for PCBs.

The Agency concedes that it initially concurred in the creation of a subdocket to

consider the phase out on mixing zones for BCCs; however, the Agency subsequently received

the USEPA memorandum. The memorandum from Jim Hanlon includes an analysis and

response to the American Iron and Steel Institute v. USEPA. The USEPA memorandum

indicates that two analyses were done to evaluate the impact of a mixing zone phase out. The

first analysis was based on current analytical method detection levels (MDLs) and showed that

elimination of mixing zones would have minimal cost impacts. USEPA memorandum at 4.

The elimination would have no impact because as a practical matter a discharger could not be

found to be in noncompliance unless its discharges are at or above the detection level and most

of the criteria and effluent concentrations for BCCs are well below the MDL.

. The second

analysis hypothesized that the ability to detect BCCs was improved by a factor of 10 or 100

and showed that as detection levels improve, elimination of the mixing zone provision may

result in significantly higher costs from phasing out mixing zones.

. The second analysis

was cited by the court in its decision to vacate the phase out for BCC mixing zones. Thus,

USEPA intends to clarify and amend the GLI to reinstate the mixing zone phase out in 1998.

The Agency indicated that the current MDLs in Illinois cannot change without

additional rulemaking. Thus, for the economic hardship that concerned the D.C. Court of

Appeals to affect any Illinois dischargers, better scientific detection methods would have to be

developed and those methods would have to be adopted by the Board. PC 8 at 5. Further, the

Agency supported the phase out of the BCC mixing zone because the phase out preserves the

conceptual benefits of eliminating persistent toxic chemicals from the Lake Michigan

ecosystem yet is unlikely to cause any Illinois dischargers to incur any adverse economic

The Board granted the Agency’s motion to supplement the record with the memorandum,

dated July 31, 1997, from Jim Hanlon, Deputy Director, Office of Science and Technology,

USEPA on September 18, 1997.

effects from noncompliance. PC 8 at 5. Therefore, the Agency did not believe a subdocket

was necessary to further consider mixing zones under GLI.

The Lake Michigan Federation and the Sierra Club of Illinois (LMFSC) in their

comment (PC 5) supported the phasing out of mixing zones even though the D.C. Court of

Appeals vacated that part of the federal GLI. The LMFSC argued that the phase out should be

maintained because:

1. no mixing zones for BCCs currently exist in the Illinois portion of Lake

Michigan and so the cost rationale cited by the court does not apply to

Illinois;

2. the court’s remand of the mixing zone phase out was based on municipal

concerns over only mercury;

3. the court’s reliance on the study by the Michigan town of Owosso is

misplaced because that study is outdated; and

4. the court recognized that the phase out complies with federal law. PC 5.

The Board determined that a subdocket was not necessary in this proceeding to consider

a phase out of mixing zones for BCCs. First, the Board noted that although the Board must

consider the economic reasonableness of a rule, the Board is not limited to adopting only rules

which the Board has determined to be technically feasible and economically reasonable. See

Granite City v. Pollution Control Board, 155 Ill.2d 149, 613 N.E.2d 719 (1993) (Granite

City). The Illinois Supreme Court stated in the Granite City case:

The Board must then use its technical expertise and judgment in balancing any

hardship that the regulations may cause to dischargers against its statutorily

mandated purpose and function of protecting our environment and public health.

Granite City at 613 N.E.2d at 734.

In this rulemaking, the economic information provided in the record and supplemented

by the Agency’s final comments and the USEPA memorandum convinced the Board that the

phasing out of mixing zones is economically reasonable. The additional material illustrated

conclusively to the Board that at current detection levels, the phase out of mixing zones will

have minimal economic impact on the regulated community. Further, any potential economic

impact can be offset by the fact that the proposed rule prohibits establishing new mixing zones

but the rule does not immediately eliminate existing mixing zones. Rather, the rule provides

that existing mixing zones are eligible for mixing allowance until March 23, 2007. Thus, even

if a discharger currently has a mixing zone, the rule will allow that discharger to maintain its

mixing zone until March 23, 2007. This will allow the discharger time to investigate

alternatives which could include an adjusted standard or site-specific rule if the economic

hardship is arbitrary or unreasonable.

While the Board understands the concern regarding the phase-out of mixing zones for

BCCs in the Open Waters of Lake Michigan, the Board believes that its decision concerning

this issue is economically and technologically reasonable and environmentally sound.

Moreover, the Board believes that the phase-out of mixing zones for BCCs in the Open Waters

of Lake Michigan is the course the USEPA will follow and to which the states will have to

comply. However, if the USEPA does not follow this course, the Board will revisit its

decision regarding the phase-out of mixing zones before all mixing zones for BCCs in the

Open Waters of Lake Michigan must be eliminated under Section 302.503.

The Board determined that the human health standard for PCBs does not need further

review at this time. The Agency suggested amending the PCB human health standard using

the revised cancer potency factor. Also, the Board took administrative notice of action taken

by the USEPA on October 9, 1997, regarding the standards for PCBs in the GLI. See 62 FR

52922-52924.

The USEPA has withdrawn the human health standards for PCBs, but

recommends that the states and tribes adopt a standard no less stringent than 2.6 ug/l or use

Tier I methodologies for human health. Thus, the Agency’s suggested action is consistent with

USEPA guidance. The Board accepted the Agency’s proposal.

ISSUES

Prior to proceeding to second notice there were certain issues raised in the public

comments which the Board addressed. The Agency suggested changes to the rule as it was

proposed at first notice. In addition, IERG, R. Lavin & Sons, Inc., and the LMFSC raised

issues and suggested some additional language changes. The Board will first discuss the

comments from IERG, then R. Lavin & Sons (Lavin) followed by LMFSC and the Agency.

The Board will lastly address the agreements the Board made during second notice with JCAR.

Illinois Environmental Regulatory Group Comments

On August 27, 1997, the Board received a filing from IERG (Aug. 27 IERG) which

included proposed language changes in three sections. First, IERG suggested changes in the

procedures to establish BCCs. Second, IERG suggested changes to the Tier I wildlife criterion

water quality derivation procedures. Third, IERG suggested a clarification of the definition of

Lake Michigan Basin Waters.

Bioaccumulative Chemicals of Concern

IERG raised concerns with the manner in which BCCs are designated as proposed at

first notice. Specifically, IERG was concerned with the absence of procedures which establish

how, when, and by whom a chemical is to be designated a BCC. IERG suggested that the

manner in which a BCC is to be designated should include a procedure for the Board’s

adoption of the BCC. Aug. 27 IERG at 2. IERG suggested that the Board add a new Section

302.520 which set forth procedures for designating a BCC and renumbered Section 302.520 as

proposed to Section 302.521.

. New Section 302.520 would have the Board determine, via

a Board rulemaking, what does or does not constitute a BCC. However, while the chemical is

The Board will enter the

Federal Register

pages as an exhibit in this rulemaking.

under Board consideration, the chemical would be treated as a BCC (PC 6 at 7), thus,

satisfying GLI requirements. As proposed by IERG, the new Section 302.520 would read:

Section 302.520

Regulation and Designation of Bioaccumulative

Chemicals of Concern (BCCs)

For the purposes of regulating BCCs in accordance

with Sections 302.521 and 302.530 of this Part,

the following chemicals shall be considered as

BCCs:

any chemical or class of chemicals listed as

a BCC in Section 302.501; and

any chemical or class of chemicals that the

Agency has determined meets the

characteristics of a BCC as defined in

Section 302.501 as indicated by:

publication in the Illinois Register;

notification to a NPDES permittee

or applicant; or

filing a petition with the Board to

verify that the chemical shall be

designated a BCC.

Notwithstanding subsections (a)(2)(A) and (B) of

this Section, a chemical shall not be regulated as a

BCC if the Agency has not filed a petition, within

60 days after such publication or notification, with

the Board in accordance with Section 28.2 of the

Act to verify that the chemical shall be designated

a BCC.

Pursuant to subsection (b) of this Section and

Section 302.570 of this Part, if the Board verifies

that a chemical has a human health

bioaccumulation factor greater than 1,000 and is

consistent with the definition of a BCC in Section

302.105, the Board shall designate the chemical as

a BCC and list the chemical in Section 302.501.

If the Board fails to verify the chemical as a BCC

in its final action on the verification petition, the

chemical shall not be listed as a BCC and shall not

be regulated as a BCC in accordance with Sections

302.521 and 302.530 of this Part.

The Agency supported the addition of a new Section 302.520 to reflect a procedure for

determining BCCs. The Agency supported language which included a proposal to publicize

the availability of information on unlisted BCCs, the application of unlisted BCCs to a

discharger, or the opportunity to participate in a listing rulemaking before the Board. 9/2 Ag.

at 23. The Agency agreed to the language suggested by IERG except that the Agency

recommended deleting the limitation that only NPDES permit holders be notified in (a)(2) of

the amendatory language.

. The Agency believed that the scope of discharges affected by

the definition of BCCs is larger than NPDES permit holders or applicants.

The LMFSC commented that the Board should retain the definition of BCC as proposed

in Section 302.501 because that definition is consistent with the GLI. PC 5 at 6. The LMFSC

maintained that the USEPA intended to allow for additional chemicals to be added and never

intended the list to be limited to the 22 chemicals listed in the definition.

. LFMSC further

asserted in its comment that IERG’s suggested new Section 302.520 is not clearly consistent

with the GLI’s minimum federal mandates. PC 5 at 6. LFMSC was opposed to the adoption

of section proposed by IERG.

The Board accepted the suggestion to add a new section which delineates procedures

for amending the list of BCCs. The Board amended the language so that the notification

would not be limited to NPDES permit holders or applicants. The addition of this section

provided specific procedures to amend the list of BCCs. The procedures included a

rulemaking pursuant to Section 28.2 of the Act and the Illinois Administrative Procedure Act.

415 ILCS 5/28.2 (1996); 5 ILCS 100/5-5

et seq

. (1996) These added procedures will ensure

that interested parties will be notified and have an opportunity to comment on any additions to

the list of BCCs. At the same time, the actual definition of BCCs has not been amended so

that the universe of potential BCCs remains unaltered. Thus, the Board found that adding this

language will ensure that any future addition to the list of BCCs will be done according to

Illinois law while protecting the intent of the GLI.

Wildlife criteria derivation procedures

IERG expressed concern regarding the proposed application of the GLI wildlife criteria

derivation procedures proposed at Section 302.575. Tr. 2 at 57. IERG had several

discussions with the Agency and as a result of those discussions proposed that language be

added to Section 302.575. The Agency agreed with the language suggested by IERG. 9/2

Ag. at 43. IERG recommended adding:

This method shall also be used for non-BCC, as appropriately modified based

upon consideration of the following factors: selection of scientifically justified

target species; relevant routes of chemical exposure; and pertinent toxicity

endpoints. Aug. 27 IERG at 4.

The modification put forth by IERG clarified that the methods set forth in

Section 302.575 are to be used to develop Tier I wildlife criterion for non-BCCs. The

Board determined that the suggested language eliminated an ambiguity in the proposed

rule. Therefore, the Board accepted the language suggested by IERG and agreed to by

the Agency.

Clarification of Lake Michigan Basin waters

IERG suggested clarifying the definition of Lake Michigan Basin at Section 303.443 to

make clear that only those tributary waters which fulfill the definition of waters at 35 Ill.

Adm. Code 301.440 and which are within Illinois’ jurisdiction are included in the definition.

Aug. 27 IERG at 5. IERG indicated that it had discussed this matter with the Agency, and

IERG and the Agency agreed to language. Specifically, IERG recommended adding the

phrase “(as defined in 35 Ill. Adm. Code 301.440), within Illinois jurisdiction,” to Section

303.443(b).

The Board accepted the language suggested by IERG and agreed to by the

Agency as this amendment to the proposal lends specificity to the rule. Further, the

amendment may also help to address concerns raised by other comments.

R. Lavin & Sons, Inc. Comments

Lavin presented three issues for the Board’s consideration in Lavin’s comment filed on

August 28, 1997. Lavin suggested that the Board should 1) clarify that the GLI does not

regulate stormwater point sources; 2) clarify that the definition of “Lake Michigan Basin

waters under Illinois jurisdiction” excludes stormwater and waters enclosed in sewers; and 3)

correct water quality standards for metals that use total rather than dissolved form to measure

metals. PC 4 at 1-5.

Clarify that GLI does not regulate stormwater point sources

Lavin argued that the federal GLI provides that for wet weather point sources, states

need not adopt and apply the final Guidance implementation procedures. PC 4 at 2, citing 60

FR 15380 and 60 FR 15390. The definition of “wet weather point source” includes

stormwater according to Lavin. PC 4 at 1. Thus, Lavin maintained that the inclusion of

stormwater in the definition of wet weather point source coupled with the exclusion of wet

weather point source from the federal GLI establishes that the federal GLI does not regulate

stormwater point sources. PC 4 at 2.

Lavin argued that to “avoid premature rulemaking” the Board should amend the

proposal to clarify that the proposed regulations do not regulate stormwater. Lavin suggested

that the Board add a sentence to Section 302.501(a) which states: “[t]he Lake Michigan Basin

water quality standards do not apply to wet weather point sources.” PC 4 at 3. Lavin also

suggested adding a definition for “wet weather point source” to Section 302.501(b).

The Department of the Navy (Navy) filed a comment which directly responded to the

comments filed by Lavin. Navy disagreed with Lavin regarding the regulation of wet weather

point sources. PC 9 at 6-7. Navy argued that the federal GLI at 60 FR 15371 states that “the

water quality criteria to protect human health, wildlife and aquatic life, and the antidegradation

provisions apply to the waters in the Great Lakes System regardless of whether discharges to

the water are from point or nonpoint sources.” PC 9 at 6-7. The Navy agreed that Lavin is

correct that the federal GLI excepts wet weather point sources from the precise implementation

provisions of GLI. PC 9 at 7. However, Navy maintained that wet weather point sources are

not excluded from the federal GLI and should not be excluded from Illinois water quality

criteria. PC 9 at 7. Furthermore, because the Agency has elected to adopt its own version of

the implementation procedures rather than incorporating the federal procedures by reference

and their version does not use the term wet weather point source, there is no need to add a

definition for that term to the Board’s rule.

The Illinois Attorney General’s Office filed a comment responding to Lavin’s request

that the Board exempt wet weather point sources from the proposed rules. The Attorney

General maintained that key concepts of the GLI take into account the multi-media nature of

the pollution problem. Those key concepts include 1) water quality criteria and

antidegradation, 2) consideration of the presence of pollutants in ambient waters, including

pollutants from nonpoint source dischargers, when establishing water quality criteria based

effluent limitations, and 3) addressing nonpoint sources by specifying that the loading capacity

of a receiving water that does not meet water quality standards for a particular pollutant be

allocated among nonpoint sources as well as point sources through the total maximum daily

loads concept (TMDL). PC 10 at 2, citing 60 FR 15371. The Attorney General argued that

although states and tribes generally do not have to adopt rules for wet weather events, a

specific exception to that guidance is for the application of TMDL general condition for wet

weather events.

. The Attorney General asserted that for the Board to adopt an exception

for stormwater discharges at this time would be to ignore the totality of the federal GLI.

The LMFSC also agreed that GLI does not require the states to adopt implementation

procedures for wet weather point sources. PC 11 at 3. However, LMFSC asserted that the

GLI’s acute and chronic water quality criteria and values for the protection of aquatic life, the

criteria for the protection of wildlife, and nondrinking water quality criteria for human health

apply to all waters of the Great Lakes System. PC 11 at 3. Therefore to exclude wet weather

point sources from the GLI jurisdiction would be contrary to the plain language of the GLI,

according to LMFSC. PC 11 at 4.

The Agency agreed that it has testified that some stormwater flows are not subject to

the permitting provisions of GLI. PC 8 at 2. However, the Agency maintained that the

language changes suggested by Lavin to Sections 302.501(a) and 303.443(b) confuses the

distinction between a discharge or effluent standard and a water quality standard.

. The

Agency maintained that these water quality standards do not directly apply to the discharges

from point sources, non-point sources, wet weather flows and airborne deposition but to the

waters of the state outside any allowed or permitted mixing zone. The concentration of

contaminants in these waters is a result of the contribution of many sources but can only be

controlled to the extent that regulatory authority exits for those limitations.

. The Agency

asserted that it intends to make the non application of GLI to wet weather flows clearer in the

Agency’s implementation rules.

. The Agency did not object to adding the definition of wet

weather point source to Section 302.501(b).

The Board declined to accept Lavin’s suggestion to clarify that GLI does not regulate

stormwater flows. The Board found that the rule as proposed is clear that the provisions are

water quality standards which apply to the Lake Michigan Basin. These proposed rules do not

discuss sources of the pollution and to exclude one specific source as suggested by Lavin

would be inappropriate.

Clarify that the definition of “Lake Michigan Basin water under Illinois jurisdiction” excludes

stormwater and water enclosed in sewers

Lavin expressed a concern that the definition of “Lake Michigan Basin waters under

Illinois jurisdiction” could be interpreted to include waters enclosed in sewers that eventually

lead to tributaries of Lake Michigan. PC 4 at 4. Lavin pointed out that the definition of

“waters” in the Board’s rules specifically excludes “sewers”.

. Thus, Lavin argued the GLI

water quality standards should cease to apply upon reaching the sewer closest to Lake

Michigan’s tributaries. PC 4 at 4-5. Lavin maintained that “[t]heoretically . . . the point of

application of the water quality standards could be at any point between a discharging facility

and Lake Michigan.” PC 4 at 5. In order to clarify the definition, Lavin suggested amending

Section 303.443 to read:

Lake Michigan harbors and waters within the breakwaters, and waters, as that

term is defined in 35 Ill. Adm. Code 301.440, downstream of the closest sewer

leading to a tributary to Lake Michigan including streams, sloughs and other

watercourses not named elsewhere in this Part, but not including discharges

from wet weather point sources that lead to these tributaries. PC 4 at 5.

Navy opposed Lavin’s suggestion that waters of Lake Michigan Basin should be

defined as “downstream of the closest sewer leading to a tributary to Lake Michigan.”

Navy argued that Lavin points to no authority for this position and such a proposition

would “subvert the ameliorative intent of the GLI.” PC 9 at 8. Navy maintained that

Lavin’s “theory” is not at question, but rather what the regulations actually provide.

. Navy maintained that the “Great Lakes System” is defined to include all streams,

rivers, lakes and other bodies of water within the drainage basin of the Great Lakes

within the United States.

. Navy asserted that under Lavin’s definition, dischargers

downstream may be left to bear the consequences of upstream sewer dischargers.

The Attorney General also opposed the change to the definition of Lake

Michigan Basin waters suggested by Lavin. PC 10 at 2-3. The Attorney General

argued that the focus of the GLI is to maintain, if not improve, the current water

quality of the Great Lakes. PC 10 at 2. The Attorney General stated “[i]t is logical

that any adverse impacts to water quality in tributary waters . . . will . . . lead to

eventual degradation of the Lake Michigan waters.” PC 10 at 3. The Attorney

General argued that the proposal by Lavin to exempt stormwaters and waters enclosed

in sewers does not fulfill the intent of the antidegradation provisions of GLI and

therefore should not be adopted.

The LMFSC did not agree that the definition of Lake Michigan Basin waters

should be amended as proposed by Lavin. PC 11 at 4-5. LMFSC maintained that the

water quality criteria apply to all waters in the Great Lakes System. PC 11 at 5.

The Board found that the record did not support adding the phrase “downstream

of the closest sewer leading to a” in the definition of Lake Michigan Basin at Section

303.443. The Board was persuaded by Navy’s comment that the addition of the phrase

could leave the rule open to an interpretation that “dischargers downstream may be left

to bear the consequences of upstream sewer dischargers”.

Use of dissolved metals standards versus total metals standard

Lavin pointed out that the Agency’s statement of reasons indicated that there is a

change in the measured form of metal contaminates from total to dissolved. PC 4 at 6, citing

Statement of Reasons at 5. Lavin also pointed to testimony by Mr. Robert Mosher, an Agency

representative, in which Mr. Mosher stated that “for numerical standards for metals, the freely

dissolved form is being proposed as the basis for the standard.” PC 4 at 6, citing Tr. 1 at 21.

Lavin maintained that given the decision to use the dissolved form to measure metals, the use

of the dissolved form must be applied consistently to the metals. PC 4 at 6. Lavin suggested

adding “dissolved” after Chromium (hexavalent), Lead, and Mercury in Section 302.504.

Navy encouraged the Board to adopt a total standard for all metals. PC 9 at 10. Navy

maintained that USEPA has recommended using dissolved standard rather than total standard

as a general recommendation not specific to GLI. PC 9 at 9. This recommendation is based

on the fact that it is the fraction of the total metals concentration which is most bioavailable

and therefore responsible for most of the observed toxicity, according to Navy.

. Navy also

argued that use of a dissolved standard fails to account for metals contamination present in

sediments or the potential for increased metals loading of sediments with the undissolved or

particulate metals found in the discharge. PC 9 at 9-10.

The LMFSC supported the use of a total standard for all metals. PC 11 at 6-7.

LMFSC maintained that Illinois should not use dissolved metals standard to monitor water

quality and determine attainment of water quality standards. PC 11 at 7. LMFSC maintained

that the Agency used the dissolved metals standards for some metals because this parameter

was used in the toxicity studies that were used to develop the GLI.

The Agency pointed out that some of the standards for metal were taken directly from

the existing standards at 35 Ill. Adm. Code 302. PC 8 at 3. The Agency stated that there is

no quantitative difference in the concentration of the metal hexavalent chromium depending on

the total or dissolved state.

. Mercury should be retained as a total water quality standard

because it is constantly being changed by biological action into methylmercury compounds

according to the Agency.

The Board was not persuaded that a change to a total standard for metals is supported

by the record and therefore the Board did not make that change. With regard to Lavin’s

suggestion, the Board was persuaded that the standard for hexavalent chromium, mercury, and

lead are more appropriate as total standards.

Lake Michigan Federation and Sierra Club comments

In addition to the comments discussed above, LMFSC also provided extensive

comments on the proposed rule. LMFSC’s comments begin by suggesting that the State of

Illinois designate Lake Michigan as an “Outstanding National Resource Water” pursuant to the

GLI. PC 5 at 5. LMFSC argued that Lake Michigan meets the criteria as Lake Michigan

serves as a drinking water source for approximately seven million people, is an exceptional

environmental value, and is of high recreational value. PC 5 at 5-6.

LMFSC argued that several provisions of the proposed rule regulating antidegradation

are inconsistent with the federal GLI. Specifically, LMFSC believed that Section 302.520

should include the language that a proposed increase in discharge may be permitted only upon

demonstration of important social or economic benefits “to the area in which the waters are

located.” PC 5 at 11. LMFSC argued that this language should be included to insure that the

benefit is not confined to the discharger, but those in the surrounding downstream

communities.

. LMFSC also maintained that Section 302.520 should allow activities to be

covered to include those for which “independent regulatory authority exists”.

. An example

of such activities would be best management practices required by the state. Finally, LMFSC

argued that the language in Section 302.530(b) which provides an exemption for short-term

discharges, bypasses, and other activities must be amended to allow the director of the Agency

to make such determinations on a case-by-case basis.

LMFSC questioned the exclusion of the Chicago River, the North Shore Channel, and

the Calumet River from the definition of Lake Michigan Basin. PC 5 at 15. LMFSC

questioned whether there is a sound scientific basis for this exemption since “toxic chemicals

in these tributaries most likely flow back into Lake Michigan” during wet weather events.

LMFSC urged the Board and the Agency to review this matter.

LMFSC also urged the Board to adopt the GLI methodology for Tier II wildlife values

in Section 302.555. PC 5 at 13. LMFSC maintained that adoption of the Tier II values will

allow the protection of wildlife while allowing the collection of data. LMFSC also

recommend that the Tier I and Tier II values be applicable to BCCs and non-BCCs. PC 5 at

13.

LMFSC suggested that the 15 grams/day fish consumption rate used to derive the

human health criteria in Section 302.565 and 302.570 is inadequate protection for many

Illinois citizens who catch and eat fish from Lake Michigan. PC 5 at 13. LMFSC urged the

Board to adopt a more protective 30 grams/day consumption for the human health criteria. PC

5 at 14.

LMFSC maintained that a variance should not be granted unless the applicant has

initiated pollution minimization procedures and that the variance would result in substantial

and widespread economic and social impact. PC 5 at 15. LMFSC argued that the variance

standard is focused no longer only on the discharger’s financial costs of meeting the water

quality standard in the effluent.

The Agency responded specifically to LMFSC’s comments regarding antidegradation.

The Agency indicated that they did not include the language allowing any activity for which

independent regulatory authority exists because the Agency believes the language is too vague.

PC 8 at 6. The Agency also pointed out that the fish consumption level was derived using

surveys from the Great Lakes region. PC 8 at 7.

The Illinois Steel Group also responded specifically to LMFSC’s comment regarding

the definition of the Lake Michigan Basin. PC 7. The Illinois Steel Group maintained that

removing the exemption for the Chicago River, the North Shore Channel, and the Calumet

River is not supported by the record. PC 7 at 2. The Illinois Steel Group also argued that

such a change in the definition would “severely prejudice affecting facilities” which are

located well away from Lake Michigan on the Calumet River.

The Board did not make any additional changes to the rule as proposed based on the

comments filed by LMFSC. The Board found that the record lacks sufficient information to

make the changes suggested.

Agency Comments

In addition to the comments by the Agency discussed above, the Agency’s August 27,

1997, filing included several other suggested language changes for the Board’s consideration

prior to proceeding to second notice. Many of the changes were minor clarifications or

typographical errors and the Board accepted those changes without comment. The following is

a section-by-section breakdown of the more substantial changes recommended by the Agency.

Section 302.501

The Agency suggested adding a definition from 60 FR 15366 for bioconcentration as

well as another correction and changes for consistency. The Board accepted the Agency’s

suggestion to add the definition for bioconcentration.

Section 302.504

The Agency suggested using “concentrations” rather than “levels” in this Section. The

Agency proposed that in the tables the level for selenium be amended to “N/A” as the USEPA

has not finalized an acute standard for selenium and its forms. The Agency also proposed a

revision for the human health criterion for mercury to 3.1 nanograms per Liter. The Board

accepted these changes.

Sections 302.507 and 302.508

The Agency recommended amending the titles of these section to more accurately

reflect the content of the sections. The Board agreed with this change.

Section 302.520

This Section will be renumbered to Section 302.521. The Agency also suggested

changing references to the Department of Transportation to the Department of Natural

Resources. The Agency further suggested clarifying language in Section 302.520(a)(1) that

would include concentration of BCCs equal to the water quality standard. The Board accepted

these changes.

Section 302.575

The Agency recommended that this Section be amended to clarify that the Section is

applicable basin-wide and to provide criteria for application of the procedures to non-BCCs.

In addition the Agency recommended removal of redundant references to target species and

clarifying that the “Test dose” and “Toxic dose” are synonymous. The Agency also

recommended deleting superfluous language on the extrapolation of subchronic to chronic

levels. The Board accepted these changes.

Section 302.585

The Agency recommended amending this section to clarify that Tier I or II can be

alternatives and that total uncertainty applies to individual criteria or values. The Board

accepted these changes.

JCAR Agreements

On December 16, 1997, JCAR issued a certification of no objection to this rulemaking.

JCAR also asked that the Board review its decision to retain a phase out of mixing zones for

BCCs in Lake Michigan. JCAR specifically asked the Board to review the phase out of

mixing zones for consistency with federal law and for economic reasonableness. The Board

has reviewed the record in this proceeding and the Board remains convinced that the phasing

out of mixing zones for BCCs in Lake Michigan is economically reasonable. The Board also

believes that the phase out of mixing zones is consistent with the intent of the federal GLI.

In addition to several minor nonsubstantive changes, the Board agreed to two

substantive changes suggested by JCAR. Specifically, the Board agreed to amend Section

302.504 to allow for four samples to be averaged when determing whether the human health

standard for nine chemicals set out in the federal GLI have been exceeded. To accomplish

this, the Board created a new subsection (d) in Section 302.504 and renumbered the existing

subsection (d) to subsection (e). The new subsection (d) provides:

In addition to the standards specified in subsections (a), (b) and (c) of this Section,

the following human health standards (HHS) must not be exceeded in the Open

waters of Lake Michigan as defined in Section 302.501 by the arithmetic average

of at least four consecutive samples collected over a period of at least four days.

The samples used to demonstrate compliance with the HHS must be collected in a

manner which assures an average representation of the sampling period.

Constituent

STORET

Number

Unit

Water Quality Standard

Benzene

34030

g/L

12.0

Chlorobenzene

34301

g/L

470.0

2,4-Dimethylphenol

34606

g/L

450.0

2,4-Dinitrophenol

03757

g/L

55.0

Hexachloroethane

(total)

34396

g/L

5.30

Lindane

39782

g/L

0.47

Methylene chloride

34423

g/L

47.0

Toluene

78131

mg/L

5.60

Trichloroethylene

39180

g/L

29.0

The Board also agreed to amend Section 302.550 to specify what

methods of sample

collection, preservation, and analysis shall be used in applying any of the requirements of this

Subpart. Section 302.550 now will read:

All methods of sample collection, preservation, and analysis used in applying any

of the requirements of this Subpart shall be consistent with the methods published

by USEPA or nationally recognized standards of organizations, including but not

limited to those methods found in Standard Methods, incorporated by reference in

Section 302.510, or recommended in 40 CFR 132 and incorporated by reference in

Section 302.510.

CONCLUSION

The Board had found that the proposal is economically reasonable and technically

feasible and that the proposal warranted approval for second notice. Today the Board accepts

the suggestion made by JCAR and will adopt the rule with those changes.

ORDER

The Board directs the Clerk to cause the filing of the following proposal for Second

Notice with the Joint Committee on Administrative Rules:

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE C: WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 302

WATER QUALITY STANDARDS

SUBPART A: GENERAL WATER QUALITY PROVISIONS

Section

302.100

Definitions

302.101

Scope and Applicability

302.102

Allowed Mixing, Mixing Zones and ZIDS

302.103

Stream Flows

302.104

Main River Temperatures

302.105

Nondegradation

SUBPART B: GENERAL USE WATER QUALITY STANDARDS

Section

302.201

Scope and Applicability

302.202

Purpose

302.203

Offensive Conditions

302.204

302.205

Phosphorus

302.206

Dissolved Oxygen

302.207

Radioactivity

302.208

Numeric Standards for Chemical Constituents

302.209

Fecal Coliform

302.210

Other Toxic Substances

302.211

Temperature

302.212

Ammonia Nitrogen and Un-ionized Ammonia

302.213 Effluent Modified Waters (Ammonia)

SUBPART C: PUBLIC AND FOOD PROCESSING WATER SUPPLY STANDARDS

Section

302.301

Scope and Applicability

302.302

Algicide Permits

302.303

Finished Water Standards

302.304

Chemical Constituents

302.305

Other Contaminants

302.306

Fecal Coliform

SUBPART D: SECONDARY CONTACT AND INDIGENOUS AQUATIC LIFE

STANDARDS

Section

302.401

Scope and Applicability

302.402

Purpose

302.403

Unnatural Sludge

302.404

302.405

Dissolved Oxygen

302.406

Fecal Coliform (Repealed)

302.407

Chemical Constituents

302.408

Temperature

302.409

Cyanide

302.410

Substances Toxic to Aquatic Life

SUBPART E: LAKE MICHIGAN BASIN WATER QUALITY STANDARDS

Section

302.501

Scope, and Applicability, and Definitions

302.502

Dissolved Oxygen

302.503

302.504

Chemical Constituents

302.505

Fecal Coliform

302.506

Temperature

302.507

Thermal Standards for

Existing Sources on January 1, 1971

302.508

Thermal Standards for

Sources Under Construction But Not in Operation on

January 1, 1971

302.509

Other Sources

302.510

Incorporations by Reference

302.515

Offensive Conditions

302.520

Regulation and Designation of Bioaccumulative Chemicals of Concern (BCCs)

302.521

Supplemental Antidegradation Provisions for BCCs

302.525

Radioactivity

302.530

Supplemental Mixing Provisions for BCCs

302.535

Ammonia Nitrogen

302.540

Other Toxic Substances

302.545

Data Requirements

302.550

Analytical Testing

302.553

Determining the Lake Michigan Aquatic Toxicity Criteria or Values - General

Procedures

302.555

Determining the Tier I Lake Michigan Basin Acute Aquatic Life Toxicity Criterion

(LMAATC): Independent of Water Chemistry

302.560

Determining the Tier I Lake Michigan Basin Acute Aquatic Life Toxicity Criterion

(LMAATC): Dependent on Water Chemistry

302.563

Determining the Tier II Lake Michigan Basin Acute Aquatic Life Toxicity Value

(LMAATV)

302.565

Determining the Lake Michigan Basin Chronic Aquatic Life Toxicity Criterion

(LMCATC) or the Lake Michigan Basin Chronic Aquatic Life Toxicity Value

(LMCATV)

302.570

Procedures for Deriving Bioaccumulation Factors for the Lake Michigan Basin

302.575

Procedures for Deriving Tier I Water Quality Criteria in the Lake Michigan Basin

to Protect Wildlife

302.580

Procedures for Deriving Water Quality Criteria and Values in the Lake Michigan

Basin to Protect Human Health - General

302.585

Procedures for Determining the Lake Michigan Basin Human Health Threshold

Criterion (LMHHTC) and the Lake Michigan Basin Human Health Threshold Value

(LMHHTV)

302.590

Procedures for Determining the Lake Michigan Basin Human Health Nonthreshold

Criterion (LMHHNC) or the Lake Michigan Basin Human Health Nonthreshold

Value (LMHHNV)

302.595

Listing of Bioaccumulative Chemicals of Concern, Derived Criteria and Values

SUBPART F: PROCEDURES FOR DETERMINING WATER QUALITY CRITERIA

Section

302.601

Scope and Applicability

302.603

Definitions

302.604

Mathematical Abbreviations

302.606

Data Requirements

302.612 Determining the Acute Aquatic Toxicity Criterion for an Individual Substance -

General Procedures

302.615 Determining the Acute Aquatic Toxicity Criterion - Toxicity Independent onf Water

Chemistry

302.618

Determining the Acute Aquatic Toxicity Criterion - Toxicity Dependent on Water

Chemistry

302.621

Determining the Acute Aquatic Toxicity Criterion - Procedures for Combinations of

Substances

302.627

Determining the Chronic Aquatic Toxicity Criterion for an Individual Substance -

General Procedures

302.630

Determining the Chronic Aquatic Toxicity Criterion - Procedure for Combination

of Substances

302.633 The Wild and Domestic Animal Protection Criterion

302.642

The Human Threshold Criterion

302.645

Determining the Acceptable Daily Intake

302.648

Determining the Human Threshold Criterion

302.651

The Human Nonthreshold Criterion

302.654

Determining the Risk Associated Intake

302.657

Determining the Human Nonthreshold Criterion

302.658

Stream Flow for Application of Human Nonthreshold Criterion

302.660

Bioconcentration Factor

302.663

Determination of Bioconcentration Factor

302.666

Utilizing the Bioconcentration Factor

302.669

Listing of Derived Criteria

APPENDIX A References to Previous Rules

APPENDIX B Sources of Codified Sections

AUTHORITY: Implementing Section 13 and authorized by Sections 11(b) and 27 of the

Environmental Protection Act [415 ILCS 5/13 11(b), and 27]

SOURCE: Filed with the Secretary of State January 1, 1978; amended at 2 Ill. Reg. 44, p.

151, effective November 2, 1978; amended at 3 Ill. Reg. 20, p. 95, effective May 17, 1979;

amended at 3 Ill. Reg. 25, p. 190, effective June 21, 1979; codified at 6 Ill. Reg. 7818;

amended at 6 Ill. Reg. 11161, effective September 7, 1982; amended at 6 Ill. Reg. 13750,

effective October 26, 1982; amended at 8 Ill. Reg. 1629, effective January 18, 1984;

peremptory amendments at 10 Ill. Reg. 461, effective December 23, 1985; amended at R87-27

at 12 Ill. Reg. 9911, effective May 27, 1988; amended at R85-29 at 12 Ill. Reg. 12082,

effective July 11, 1988; amended in R88-1 at 13 Ill. Reg. 5998, effective April 18, 1989;

amended in R88-21(A) at 14 Ill. Reg. 2899, effective February 13, 1990; amended in R88-

21(B) at 14 Ill. Reg. 11974, effective July 9, 1990; amended in R94-1(A) at 20 Ill. Reg. 7682,

effective May 24, 1996; amended in R94-1(B) at 21 Ill. Reg. 370, effective December 23,

1996; expedited correction at 21 Ill. Reg. 6273, effective December 23, 1996; amended in

R97-25 at 21 Ill. Reg. , effective ______________________.

Section 302.101 Scope and Applicability

a) This Part contains schedules of water quality standards which are applicable

throughout the State as designated in 35 Ill. Adm. Code 303. Site specific

water quality standards are found with the water use designations in 35 Ill.

Adm. Code 303.

Subpart B contains general use water quality standards which must be met in

waters of the State for which there is no specific designation (35 Ill. Adm. Code

303.201).

Subpart C contains the public and food processing water supply standards.

These are cumulative with Subpart B and must be met by all designated waters

at the point at which is drawn for treatment and distribution as a potable supply

or for food processing (35 Ill. Adm. Code 303.202).

Subpart D contains the secondary contact and indigenous aquatic life standards.

These standards must be met only by certain waters designated in 35 Ill. Adm.

Code 303.204 and 303.441.

Subpart E contains the Lake Michigan Basin water quality standards. These are

cumulative with the Subpart B and C standards and must be met by in the

waters of the Lake Michigan Basin and such other waters as may be designated

in 35 Ill. Adm. Code 303 (35 Ill. Adm. Code 303.443).

f) Subpart F contains the procedures for determining each of the criteria

designated in Section 302.210.

Unless the contrary is clearly indicated, all references to "Parts" or "Sections"

are to Ill. Adm. Code, Title 35: Environmental Protection. For example, "Part

309" is 35 Ill. Adm. Code 309, and "Section 309.101" is 35 Ill. Adm. Code

309.101.

(Source: Amended at 21 Ill. Reg. , effective _________________________.)

Section 302.105 Nondegradation

Except as otherwise provided in Section 302.520, Waters waters whose existing quality is

better than the established standards at their date of their adoption will be maintained in their

present high quality. Such waters will not be lowered in quality unless and until it is

affirmatively demonstrated that such change will not interfere with or become injurious to any

appropriate beneficial uses made of, or presently possible in, such waters and that such change

is justifiable as a result of necessary economic or social development.

(Source: Amended at 21 Ill. Reg. , effective _________________________.)

SUBPART E: LAKE MICHIGAN BASIN WATER QUALITY STANDARDS

Section 302.501 Scope, and Applicability, and Definitions

Subpart E contains the Lake Michigan Basin water quality standards. These are

cumulative with the general use and public water supply standards of Subparts B

and C. They must be met in the waters of the Lake Michigan Basin and such

additional waters as may be designated in Part 303 (35 Ill. Adm. Code Section

303.443).

In addition to the definitions provided at 35 Ill. Adm. Code 301.200 through

301.444, and in place of conflicting definitions at Section 302.100, the

following terms have the meanings specified for the Lake Michigan Basin:

“Acceptable daily exposure” or “ADE” means an estimate of the maximum

daily dose of a substance which is not expected to result in adverse noncancer

effects to the general human population, including sensitive subgroups.

“Acceptable endpoints”, for the purpose of wildlife criteria derivation, means

acceptable subchronic and chronic endpoints which affect reproductive or

developmental success, organismal viability or growth, or any other endpoint

which is, or is directly related to, parameters that influence population

dynamics.

“Acute to chronic ratio” or “ACR” is the standard measure of the acute toxicity

of a material divided by an appropriate measure of the chronic toxicity of the

same material under comparable conditions.

“Acute toxicity” means adverse effects that result from an exposure period

which is a small portion of the life span of the organism.

“Adverse effect” means any deleterious effect to organisms due to exposure to a

substance. This includes effects which are or may become debilitating, harmful

or toxic to the normal functions of the organism, but does not include

non-harmful effects such as tissue discoloration alone or the induction of

enzymes involved in the metabolism of the substance.

“Baseline BAF” for organic chemicals, means a BAF that is based on the

concentration of freely dissolved chemical in the ambient water and takes into

account the partitioning of the chemical within the organism; for inorganic

chemicals, a BAF is based on the wet weight of the tissue.

“Baseline BCF” for organic chemicals, means a BCF that is based on the

concentration of freely dissolved chemical in the ambient water and takes into

account the partitioning of the chemical within the organism; for inorganic

chemicals, a BAF is based on the wet weight of the tissue.

“Bioaccumulative chemical of concern” or “BCC” is any chemical that has the

potential to cause adverse effects and that, upon entering the surface waters, by

itself or as its toxic transformation product, accumulates in aquatic organisms by

a human health bioaccumulation factor greater than 1,000, after considering

metabolism and other physiochemical properties that might enhance or inhibit

bioaccumulation, in accordance with the methodology in Section 302.570. In

addition, the half life of the chemical in the water column, sediment or biota

must be greater than eight weeks. BCCs include, but are not limited to, the

following substances:

Chlordane

4,4’-DDD; p,p’-DDD; 4,4’-TDE; p,p’-TDE

4,4’-DDE; p,p’-DDE

4,4’-DDT; p,p’-DDT

Dieldrin

Hexachlorobenzene

Hexachlorobutadiene; Hexachloro-1,3-butadiene

Hexachlorocyclohexanes; BHCs

alpha- Hexachlorocyclohexane; alpha-BHC

beta- Hexachlorocyclohexane; beta-BHC

delta- Hexachlorocyclohexane; delta-BHC

Lindane; gamma- Hexachlorocyclohexane; gamma-BHC

Mercury

Mirex

Octachlorostyrene

PCBs; polychlorinated biphenyls

Pentachlorobenzene

Photomirex

2,3,7,8-TCDD; Dioxin

1,2,3,4-Tetrachlorobenzene

1,2,4,5-Tetrachlorobenzene

Toxaphene

“Bioaccumulation” is the net accumulation of a substance by an organism as a

result of uptake from all environmental sources.

“Bioaccumulation factor” or “BAF” is the ratio (in L/kg) of a substance's

concentration in the tissue of an aquatic organism to its concentration in the

ambient water, in situations where both the organism and its food are exposed

and the ratio does not change substantially over time.

“Bioconcentration” means the net accumulation of a substance by an aquatic

organism as a result of uptake directly from the ambient water through gill

membranes or other external body surfaces.

“Bioconcentration Factor” or “BCF” is the ratio (in L/kg) of a substance’s

concentration in the tissue of an aquatic organism to its concentration in the

ambient water, in situations where the organism is exposed through the water

only and the ratio does not change substantially over time.

“Biota-sediment accumulation factor” or “BSAF” means the ratio (in kg of

organic carbon/kg of lipid) of a substance’s lipid-normalized concentration in

the tissue of an aquatic organism to its organic carbon-normalized concentration

in surface sediment, in situations where the ratio does not change substantially

over time, both the organism and its food are exposed, and the surface sediment

is representative of average surface sediment in the vicinity of the organism.

“Carcinogen” means a substance which causes an increased incidence of benign

or malignant neoplasms, or substantially decreases the time to develop

neoplasms, in animals or humans. The classification of carcinogens is

determined by the procedures in Section II.A of appendix C to 40 CFR 132

(1996) incorporated by reference in Section 302.510.

“Chronic effect” means an adverse effect that is measured by assessing an

acceptable endpoint, and results from continual exposure over several

generations, or at least over a significant part of the test species' projected life

span or life stage.

“Chronic toxicity” means adverse effects that result from an exposure period

which is a large portion of the life span of the organism.

“Dissolved organic carbon” or “DOC” means organic carbon which passes

through a 1

m pore size filter.

“Dissolved metal” means the concentration of a metal that will pass through a

0.45

m pore size filter.

“Food chain” means the energy stored by plants is passed along through the

ecosystem through trophic levels in a series of steps of eating and being eaten,

also known as a food web.

“Food chain multiplier” or “FCM” means the ratio of a BAF to an appropriate

BCF.

“Linearized multi-stage model” means a mathematical model for cancer risk

assessment. This model fits linear dose-response curves to low doses. It is

consistent with a no-threshold model of carcinogenesis.

“Lowest observed adverse effect level” or “LOAEL” means the lowest tested

dose or concentration of a substance which results in an observed adverse effect

in exposed test organisms when all higher doses or concentrations result in the

same or more severe effects.

“No observed adverse effect level” or “NOAEL” means the highest tested dose

or concentration of a substance which results in no observed adverse effect in

exposed test organisms where higher doses or concentrations result in an

adverse effect.

“Octanol water partition coefficient” or “Kow” is the ratio of the concentration

of a substance in the n-octanol phase to its concentration in the aqueous phase in

an equilibrated two-phase octanol water system. For log Kow, the log of the

octanol water partition coefficient is a base 10 logarithm.

“Open Waters of Lake Michigan” means all of the waters within Lake Michigan

in Illinois jurisdiction lakeward from a line drawn across the mouth of

tributaries to Lake Michigan, but not including waters enclosed by constructed

breakwaters.

“Particulate organic carbon” or “POC” means organic carbon which is retained

by a 1

m pore size filter.

“Relative source contribution” or “RSC” means the percent of total exposure

which can be attributed to surface water through water intake and fish

consumption.

“Resident or indigenous species” means species which currently live a

substantial portion of their life cycle, or reproduce, in a given body of water, or

which are native species whose historical range includes a given body of water.

“Risk associated dose” or “RAD” means a dose of a known or presumed

carcinogenic substance in mg/kg/day which, over a lifetime of exposure, is

estimated to be associated with a plausible upper bound incremental cancer risk

equal to one in 100,000.

“Slope factor” or “q

*” is the incremental rate of cancer development calculated

through use of a linearized multistage model or other appropriate model. It is

expressed in mg/kg/day of exposure to the chemical in question.

"Standard Methods" means "Standard Methods for the Examination of Water

and Wastewater", available from the American Public Health Association.

“Subchronic effect” means an adverse effect, measured by assessing an

acceptable endpoint, resulting from continual exposure for a period of time less

than that deemed necessary for a chronic test.

“Target species” is a species to be protected by the criterion.

“Target species value” is the criterion value for the target species.

“Test species” is a species that has test data available to derive a criterion.

“Test dose” or “TD” is a LOAEL or NOAEL for the test species.

“Tier I criteria” are numeric values derived by use of the Tier I methodologies

that either have been adopted as numeric criteria into a water quality standard or

are used to implement narrative water quality criteria.

“Tier II values” are numeric values derived by use of the Tier II methodologies

that are used to implement narrative water quality criteria. They are applied as

criteria, have the same effect, and subject to the same appeal rights as criteria.

“Trophic level” means a functional classification of taxa within a community

that is based on feeding relationships. For example, aquatic green plants and

herbivores comprise the first and second trophic levels in a food chain.

“Toxic unit acute” or “TU

” is the reciprocal of the effluent concentration that

causes 50 percent of the test organisms to die by the end of the acute exposure

period which is 48 hours for invertebrates and 96 hours for vertebrates.

“Toxic unit chronic” or “TU

” is the reciprocal of the effluent concentration

that causes no observable effect on the test organisms by the end of the chronic

exposure period which is at least seven days for Ceriodaphnia

fathead minnow

and rainbow trout.

“Uncertainty factor” or “UF” is one of several numeric factors used in deriving

criteria from experimental data to account for the quality or quantity of the

available data.

"USEPA" means United States Environmental Protection Agency.

(Source: Amended at 21 Ill. Reg. , effective _________________________.)

Section 302.502 Dissolved Oxygen

Dissolved oxygen (STORET number 00300) shall must not be less than 90% saturation, except

due to natural causes, in the Open Waters of Lake Michigan as defined at Section 302.501.

The other waters of the Lake Michigan basin must not be less than 6.0 mg/L during at least 16

hours of any 24 hour period, nor less than 5.0 mg/L at any time.

(Source: Amended at 21 Ill. Reg. , effective _________________________.)

Section 302.503 pH

pH (STORET number 00400) shall must be within the range of 7.0 to 9.0, except for natural

causes, in the Open Waters of Lake Michigan as defined at Section 302.501. Other waters of

the basin must be within the range of 6.5 to 9.0, except for natural causes.

(Source: Amended at 21 Ill. Reg. _________, effective ______________________.)

Section 302.504 Chemical Constituents

The following levelsconcentrations of chemical constituents shall must not be exceeded, except as

provided in Sections 302.102 and 302.530:

STORET CONCENTRATION

CONSTITUENT NUMBER mg/l

Ammonia Nitrogen 00610 0.02

Chloride 00940 12.0

Sulfate 00945 24.0

Phosphorus (as P) 00665 0.007

Total Solids (Dissolved) 70300 180.0

The following standards must be met in all waters of the Lake Michigan Basin.

Acute aquatic life standards (AS) must not be exceeded at any time except for

those waters for which the Agency has approved a zone of initial dilution (ZID)

pursuant to Section 302.102 and 302.530. Chronic aquatic life standards (CS) and

human health standards (HHS) must not be exceeded outside of waters in which

mixing is allowed pursuant to Section 302.102 and 302.530 by the arithmetic

average of at least four consecutive samples collected over a period of at least four

days. The samples used to demonstrate compliance with the CS or HHS must be

collected in a manner which assures an average representation of the sampling

period.

Constituent

STORET

Number

Unit

HHS

Arsenic

(Trivalent, dissolved)

22680

g/L

340

148

Cadmium (dissolved)

01025

g/L

exp[A

+Bln(H)]

A=-3.6867

exp[A

+Bln(H)]

A = -2.715

Constituent

STORET

Number

Unit

HHS

B = 1.128

B = 0.7852

Chromium

(Hexavalent, total)

01032

g/L

Chromium

(Trivalent, dissolved)

80357

g/L

exp[A

+Bln(H)]

A = 3.7256

B =0.819

exp[A

+Bln(H)]

A = 0.6848

B = 0.819

Copper

(dissolved)

01040

g/L

exp[A

+Bln(H)]

A = -1.700

B = 0.9422

exp[A

+Bln(H)]

A = -1.702

B = 0.8545

Cyanide

(Weak Acid Dissociable)

00718

g/L

5.2

Lead

(dissolved)

01049

g/L

exp[A

+Bln(H)]

A = -1.055

B = 1.273

exp[A

+Bln(H)]

A = -4.003

B = 1.273

Nickel

(dissolved)

01065

g/L

exp[A

+Bln(H)]

A = 2.255

B = 0.846

exp[A

+Bln(H)]

A = 0.0584

B = 0.846

Selenium

(dissolved)

01145

g/L

5.0

TRC

50060

g/L

Zinc

(dissolved)

01090

g/L

exp[A

+Bln(H)]

A = 0.884

B = 0.8473

exp[A

+Bln(H)]

A = 0.884

B = 0.8473

Benzene

34030

g/L

310

Constituent

STORET

Number

Unit

HHS

Chlorobenzene

34301

mg/L

3.2

2,4-Dimethylphenol

34606

mg/L

8.7

2,4-Dinitrophenol

03756

mg/L

2.8

Endrin

39390

g/L

0.086

0.036

Hexachloroethane

34396

g/L

6.7

Methylene chloride

34423

mg/L

2.6

Parathion

39540

g/L

0.065

0.013

Pentachlorophenol

03761

g/L

exp B ([pH]

+A)

A = -4.869

B = 1.005

exp B ([pH]

+A)

A = -5.134

B = 1.005

Toluene

78131

mg/L

51.0

Trichloroethylene

39180

g/L

370

Where:

NA = Not Applied

Exp[x] = base of natural logarithms

raised to the x-power

ln(H) = natural logarithm of Hardness

(STORET 00900)

The following water quality standards must not be exceeded at any time in any

waters of the Lake Michigan Basin, unless a different standard is specified under

subsection (c) of this Section.

Constituent

STORET

Number

Unit

Water Quality Standard

Barium (total)

01007

mg/L

5.0

Boron (total)

01022

mg/L

1.0

Chloride (total)

00940

mg/L

500

Fluoride

00951

mg/L

1.4

Iron (dissolved)

01046

mg/L

1.0

Manganese (total)

01055

mg/L

1.0

Phenols

32730

mg/L

0.1

Sulfate

00945

mg/L

500

Total Dissolved Solids

70300

mg/L

1000

In addition to the standards specified in subsections (a) and (b) of this Section, the

following standards must not be exceeded in any individual sample at any time in

the Open Waters of Lake Michigan as defined in Section 302.501.

Constituent

STORET

Number

Unit

Water Quality Standard

Arsenic (total)

01002

g/L

50 0

Barium (total)

01007

mg/L

1.0

Chloride

00940

mg/L

12.0

Iron (dissolved)

01046

mg/L

0.30

Lead (total)

01051

g/L

50.0

Manganese (total)

01055

mg/L

0.15

Nitrate-Nitrogen

00620

mg/L

10.0

Phosphorus

00665

g/L

7.0

Constituent

STORET

Number

Unit

Water Quality Standard

Selenium (total)

01147

g/L

10.0

Sulfate

00945

mg/L

24.0

Total Dissolved Solids

70300

mg/L

180.0

Oil (hexane solubles or

equivalent)

00550,

00556 or

00560

mg/L

0.10

Phenols

32730

g/L

1.0

In addition to the standards specified in subsections (a), (b) and (c) of this Section,

the following human health standards (HHS) must not be exceeded in the Open

waters of Lake Michigan as defined in Section 302.501 by the arithmetic average

of at least four consecutive samples collected over a period of at least four days.

The samples used to demonstrate compliance with the HHS must be collected in a

manner which assures an average representation of the sampling period.

Constituent

STORET

Number

Unit

Water Quality Standard

Benzene

34030

g/L

12.0

Chlorobenzene

34301

g/L

470.0

2,4-Dimethylphenol

34606

g/L

450.0

2,4-Dinitrophenol

03757

g/L

55.0

Hexachloroethane

(total)

34396

g/L

5.30

Lindane

39782

g/L

0.47

Methylene chloride

34423

g/L

47.0

Toluene

78131

mg/L

5.60

Constituent

STORET

Number

Unit

Water Quality Standard

Trichloroethylene

39180

g/L

29.0

For the following bioaccumulative chemicals of concern (BCCs), acute aquatic life

standards (AS) must not be exceeded at any time in any waters of the Lake

Michigan Basin and chronic aquatic life standards (CS), human health standards

(HHS), and wildlife standards (WS) must not be exceeded in any waters of the

Lake Michigan Basin by the arithmetic average of at least four consecutive samples

collected over a period of at least four days subject to the limitations of Sections

302.520 and 302.530. The samples used to demonstrate compliance with the HHS

and WS must be collected in a manner that assures an average representation of

the sampling period.

Constituent

STORET

Number

Unit

HHS

Mercury (total)

71900

ng/L

1,700

910

3.1

1.3

Chlordane

39350

ng/L

0.25

DDT and metabolites

39370

pg/L

150

11.0

Dieldrin

39380

ng/L

240

0.0065

Hexachlorobenzene

39700

ng/L

0.45

Lindane

39782

g/L

0.95

0.5

PCBs (class)

79819

pg/L

120

2,3,7,8-TCDD

03556

fg/L

8.6

3.1

Toxaphene

39400

pg/L

Where: mg/L = milligrams per liter (10

-3

grams per liter)

g/L = micrograms per liter (10

-6

grams per liter)

ng/L = nanograms per liter (10

-9

grams per liter)

pg/L = picograms per liter (10

-12

grams per liter)

fg/L = femtograms per liter (10

-15

grams per liter)

NA = Not Applied

(Source: Amended at 21 Ill. Reg. , effective _________________________.)

Section 302.505 Fecal Coliform

Based on a minimum of five samples taken over not more than a 30-day period, fecal coliform

(STORET number 31616) shall must not exceed a geometric mean of 20 per 100 mlL in the

Open Waters of Lake Michigan as defined in Section 302.501. The remaining waters of the

Lake Michigan Basin must not exceed a geometric mean of 200 per 100 ml, nor shall more

than 10% of the samples during any 30 day period exceed 400 per 100 ml.

(Source: Amended at 21 Ill. Reg. _________, effective ______________________.)

Section 302.507 Thermal Standards for Existing Sources on January 1, 1971

All sources of heated effluents in existence as of January 1, 1971, shall meet the

following restrictions outside of a mixing zone which shall be no greater than a

circle with a radius of 305 m (1000 feet) or a equal fixed area of simple form.

a1)

There shall be no abnormal temperature changes that may affect aquatic

life.

b2)

The normal daily and seasonal temperature fluctuations that existed

before the addition of heat shall be maintained.

c3)

The maximum temperature rise at any time above natural temperatures

shall not exceed 1.7

C (3

F). In addition, the water temperature shall

not exceed the maximum limits indicated in the following table:

JAN.

45 JUL.

FEB.

45 AUG.

MAR.

45 SEPT.

APR.

55 OCT.

MAY

60 NOV.

JUN.

70 DEC.

The owner or operator of a source of heated effluent which discharges 150

megawatts (0.5 billion British Thermal Units per hour) or more shall

demonstrate in a hearing before this Board not less than 5 nor more than six

years after the adoption of this regulation, that discharges from that source have

not caused and cannot be reasonably expected in future to cause significant

ecological damage to the lake. If such proof is not made to the satisfaction of

the Board, backfitting of alternative cooling devices shall be accomplished

within a reasonable time as determined by the Board.

(Source: Amended at 21 Ill. Reg. _________, effective ______________________.)

Section 302.508 Thermal Standards for Sources Under Construction But Not In Operation on

January 1, 1971

Any effluent source under construction but not in operation on as of January 1, 1971 but not in

operation, shall must meet all the requirements of Section 302.507 and in addition shall must

meet the following restrictions:

Neither the bottom, the shore, the hypolimnion, nor the thermocline shall be

affected by any heated effluent.

No heated effluent shall affect spawning grounds or fish migration routes.

Discharge structures shall be so designed as to maximize short-term mixing and

thus to reduce the area significantly raised in temperature.

No discharge shall exceed ambient temperatures by more than 11°C (20°F).

Heated effluents from more than one source shall not interact.

All reasonable steps shall be taken to reduce the number of organisms drawn

into or against the intakes.

Cleaning of condensers shall be accomplished by mechanical devices. If

chemicals must be used to supplement mechanical devices, the concentration

shall be subject to this Subpart at the point of discharge shall not exceed the 96-

hour TL

for fresh water organisms.

(Source: Amended at 21 Ill. Reg. _________, effective ______________________.)

Section 302.510 Incorporations by Reference

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, 18th Edition, 1996. Available from the American Public Health

Association, 1015 Fifteenth St., NW, Washington, D.C. 20005. (202) 789-

5600.

The Board incorporates the following federal regulations by reference.

Available from the Superintendent of Documents, U.S. Government Printing

Office, Washington, D.C. 20402. (202) 783-3238:

40 CFR 136 (1996)

40 CFR 141 (1988)

40 CFR 302.4 (1988)

The Sections of 40 CFR 132 (1996) listed below:

Appendix A

Section I A

Section II

Section III C

Section IV D, E, F, G, H, and I

Section V C

Section VI A, B, C, D, E, and F

Section VIII

Section XI

Section XVII

Appendix B

Section III

Section VII B and C

Section VIII

Appendix C

Section II

Section III A (1 through 6 and 8), B (1 and 2)

Appendix D

Section III C, D, and E

Section IV

This Section incorporates no future editions or amendments.

(Source: Added at 21 Ill. Reg. _________, effective ______________________.)

Section 302.515 Offensive Conditions

Waters of the Lake Michigan Basin must be free from sludge or bottom deposits, floating

debris, visible oil, odor, plant or algal growth, color or turbidity of other than natural origin.

The allowed mixing provisions of Section 302.102 shall not be used to comply with the

provisions of this Section.

(Source: Added at 21 Ill. Reg. _________, effective ______________________.)

Section 302.520 Regulation and Designation of Bioaccumulative Chemicals of Concern

(BCCs)

For the purposes of regulating BCCs in accordance with Sections 302.521 and

302.530 of this Part, the following chemicals shall be considered as BCCs:

any chemical or class of chemicals listed as a BCC in Section 302.501;

and

any chemical or class of chemicals that the Agency has determined meets

the characteristics of a BCC as defined in Section 302.501 as indicated

by:

publication in the Illinois Register; or

notification to a permittee or applicant; or

filing a petition with the Board to verify that the chemical shall be

designated a BCC.

Notwithstanding subsections (a)(2)(A) and (B) of this Section, a chemical shall

not be regulated as a BCC if the Agency has not filed a petition, within 60 days

after such publication or notification, with the Board in accordance with Section

28.2 of the Act to verify that the chemical shall be designated a BCC.

Pursuant to subsection (b) of this Section and Section 302.570 of this Part, if

the Board verifies that a chemical has a human health bioaccumulation factor

greater than 1,000 and is consistent with the definition of a BCC in Section

302.105, the Board shall designate the chemical as a BCC and list the chemical

in Section 302.501. If the Board fails to verify the chemical as a BCC in its

final action on the verification petition, the chemical shall not be listed as a

BCC and shall not be regulated as a BCC in accordance with Sections 302.521

and 302.530 of this Part.

(Source: Added at 21 Ill. Reg. ____________, effective _______________.)

Section 302.521 Supplemental Antidegradation Provisions for BCCs

Notwithstanding the provisions of Section 302.105, waters within the Lake

Michigan Basin must not be lowered in quality due to new or increased loading

of substances defined as bioaccumulative chemicals of concern (BCCs) in

Section 302.501 from any source or activity subject to the NPDES permitting,

Section 401 water quality certification provisions of the Clean Water Act (P.L.

92-100, as amended), or joint permits from the Agency and the Illinois

Department of Natural Resources under Section 39(n) of the Act [415 ILCS

5/39(n)] until and unless it can be affirmatively demonstrated that such change

is necessary to accommodate important economic or social development.

Where ambient concentrations of a BCC are equal to or exceed an

applicable water quality criterion, no increase in loading of that BCC is

allowed.

Where ambient concentrations of a BCC are below the applicable water

quality criterion, a demonstration to justify increased loading of that

BCC must include the following:

Pollution Prevention Alternatives Analysis. Identify any cost-

effective reasonably available pollution prevention alternatives

and techniques that would eliminate or significantly reduce the

extent of increased loading of the BCC.

Alternative or Enhanced Treatment Analysis. Identify alternative

or enhanced treatment techniques that are cost effective and

reasonably available to the entity that would eliminate or

significantly reduce the extent of increased loading of the BCC.

Important Social or Economic Development Analysis. Identify

the social or economic development and the benefits that would

be forgone if the increased loading of the BCC is not allowed.

In no case shall increased loading of BCCs result in exceedence of

applicable water quality criteria or concentrations exceeding the level of

water quality necessary to protect existing uses.

Changes in loadings of any BCC within the existing capacity and

processes of an existing NPDES authorized discharge, certified activity

pursuant to Section 401 of the Clean Water Act, or joint permits from

the Agency and the Illinois Department of Natural Resources under

Section 39(n) of the Act are not subject to the antidegradation review of

subsection (a). These changes include but are not limited to:

normal operational variability, including, but not limited to,

intermittent increased discharges due to wet weather conditions;

changes in intake water pollutants;

increasing the production hours of the facility; or

increasing the rate of production.

Any determination to allow increased loading of a BCC pursuant to a

demonstration of important economic or social development need shall

satisfy the public participation requirements of 40 CFR 25 prior to final

issuance of the NPDES permit, Section 401 water quality certification,

or joint permits from the Agency and the Illinois Department of Natural

Resources under Section 39(n) of the Act.

The following actions are not subject to the provisions of subsection (a) of this

Section, unless the Agency determines the circumstances of an individual

situation warrant application of those provisions to adequately protect water

quality:

Short-term, temporary (i.e., weeks or months) lowering of water

quality;

Bypasses that are not prohibited at 40 CFR 122.41 (m); or

Response actions pursuant to the Comprehensive Environmental

Response, Compensation and Liability Act (CERCLA), as amended, or

similar federal or State authority, undertaken to alleviate a release into

the environment of hazardous substances, pollutants or contaminants

which may pose danger to public health or welfare.

(Source: Added at 21 Ill. Reg. _________, effective ______________________.)

Section 302.525 Radioactivity

Except as provided in Section 302.102, all waters of the Lake Michigan Basin must meet the

following concentrations in any sample:

Gross beta (STORET number 03501) concentrations must not exceed 100

picocuries per liter (pCi/L).

Concentrations of radium 226 (STORET number 09501) and strontium 90

(STORET number 13501) must not exceed 1 and 2 picocuries per liter,

respectively.

(Source: Added at 21 Ill. Reg. _________, effective ______________________.)

Section 302.530 Supplemental Mixing Provisions for Bioaccumulative Chemicals of Concern

(BCCs)

The General Provisions of Section 302.102 (Allowed Mixing, Mixing Zones and ZIDs) apply

within the Lake Michigan Basin except as otherwise provided herein for substances defined as

BCCs in Section 302.501:

No mixing shall be allowed for BCCs for new discharges commencing on or

after December 24, 1997.

Discharges of BCCs existing as of December 24, 1997 are eligible for mixing

allowance consistent with Section 302.102 until March 23, 2007. After March

23, 2007 mixing for BCCs will not be allowed except as provided in subsections

Mixing allowance for a source in existence on December 24, 1997 may continue

beyond March 23, 2007 where it can be demonstrated on a case by case basis

that continuation of mixing allowance is necessary to achieve water conservation

measures that result in overall reduction of BCC mass loading to the Lake

Michigan Basin.

Mixing allowance for a source in existence on December 24, 1997 shall only

continue if necessitated by technical and economic factors. Any mixing

allowance continued beyond March 23, 2007 based on technical and economic

factors shall be limited to not more than one NPDES permit term, and shall

reflect the maximum achievable BCC loading reduction within the identified

technical and economic considerations necessitating the exception. Such

continued mixing allowance shall not be renewed beyond that permit term

unless a new determination of technical and economic necessity is made.

(Source: Added at 21 Ill. Reg. _________, effective ______________________.)

Section 302.535 Ammonia Nitrogen

The Open Waters of Lake Michigan as defined in Section 302.501 must not exceed 0.02 mg/L

total ammonia (as N: STORET Number 00610). The remaining waters of the Lake Michigan

basin shall be subject to the following:

Total ammonia nitrogen (as N: STORET Number 00610) must in no case

exceed 15 mg/L.

Un-ionized ammonia nitrogen (as N: STORET Number 00612) must not exceed

the acute and chronic standards given below subject to the provisions of

Sections 302.208(a) and (b) of this Part:

From April through October, the Acute Standard (AS) shall be 0.33

mg/L and the chronic standard (CS) shall be 0.057 mg/L.

From November through March, the AS shall be 0.14 mg/L and the CS

shall be 0.025 mg/L.

For purposes of this Section, the concentration of un-ionized ammonia nitrogen

as N and total ammonia as N shall be computed according to the following

equations:

[0.94412(1 + 10

) + 0.0559]

and N = U[0.94412(1 + 10

) + 0.0559]

Where: X = 0.09018 + 2729.92 -pH

(T + 273.16)

U = Concentration of un-ionized ammonia as N in mg/L

N = Concentration of ammonia nitrogen as N in mg/L

T = Temperature in degrees Celsius.

(Source: Added at 21 Ill. Reg. _________, effective ______________________.)

Section 302.540 Other Toxic Substances

Waters of the Lake Michigan Basin must be free from any substance or any combination of

substances in concentrations toxic or harmful to human health, or to animal, plant or aquatic

life. The numeric standards protective of particular uses specified for individual chemical

substances in Section 302.504 are not subject to recalculation by this Section, however, where

no standard is applied for a category, a numeric value may be calculated herein.

Any substance shall be deemed toxic or harmful to aquatic life if present in

concentrations that exceed the following:

A Tier I Lake Michigan Basin Acute Aquatic Toxicity Criterion

(LMAATC) or Tier II Lake Michigan Basin Acute Aquatic Toxicity

Value (LMAATV) derived pursuant to procedures set forth in Sections

302.555, 302.560 or 302.563 at any time; or

A Tier I Lake Michigan Basin Chronic Aquatic Toxicity Criterion

(LMCATC) or Tier II Lake Michigan Basin Chronic Aquatic Toxicity

Value (LMCATV) derived pursuant to procedures set forth in Section

302.565 as an average of four samples collected on four different days.

Any combination of substances, including effluents, shall be deemed toxic to

aquatic life if present in concentrations that exceed either subsection (b)(1) or

(2) of this Section:

No sample of water from the Lake Michigan Basin collected outside of a

designated zone of initial dilution shall exceed 0.3 TU

as determined for

the most sensitive species tested using acute toxicity testing methods.

No sample of water from the Lake Michigan Basin collected outside a

designated mixing zone shall exceed 1.0 TU

as determined for the most

sensitive species tested using chronic toxicity testing methods.

To demonstrate compliance with subsections (1) and (2) of this

subsection (b), at least two resident or indigenous species will be tested.

The rainbow trout will be used to represent fishes for the Open Waters

of Lake Michigan and the fathead minnow will represent fishes for the

other waters of the Lake Michigan Basin. Ceriodaphnia will represent

invertebrates for all waters of the Lake Michigan Basin. Other common

species shall be used if listed in Table I A of 40 CFR 136, incorporated

by reference at Section 302.510, and approved by the Agency.

Any substance shall be deemed toxic or harmful to wildlife if present in

concentrations that exceed a Tier I Lake Michigan Basin Wildlife Criterion

(LMWLC) derived pursuant to procedures set forth in Section 302.575 as an

arithmetic average of four samples collected over four different days.

For any substance that is a threat to human health through drinking water

exposure only, the resulting criterion or value shall be applicable to only the

Open Waters of Lake Michigan. For any substance that is determined to be a

BCC, the resulting criterion shall apply in the entire Lake Michigan Basin.

These substances shall be deemed toxic or harmful to human health if present in

concentrations that exceed either of the following:

A Tier I Lake Michigan Basin Human Health Threshold Criterion

(LMHHTC) or Tier II Lake Michigan Basin Human Health Threshold

Value (LMHHTV) based on disease or functional impairment due to a

physiological mechanism for which there is a threshold dose below

which no damage occurs as derived pursuant to procedures set forth in

Section 302.585 as an arithmetic average of four samples collected over

four different days; or

A Tier I Lake Michigan Basin Human Health Nonthreshold Criterion

(LMHHNC) or Tier II Lake Michigan Basin Human Health

Nonthreshold Value (LMHHNV) based on disease or functional

impairment due to a physiological mechanism for which any dose may

cause some risk of damage as derived pursuant to procedures set forth in

Section 302.590 as an arithmetic average of four samples collected over

four different days.

The derived criteria and values apply at all points outside of any waters in

which mixing is allowed pursuant to Section 302.102 or Section 302.530.

The procedures of this Subpart E set forth minimum data requirements,

appropriate test protocols and data assessment methods for establishing criteria

or values pursuant to subsections (b), (c), and (d) of this Section. No other

procedures may be used to establish such criteria or values unless approved by

the Board in a rulemaking or adjusted standards proceeding pursuant to Title VII

of the Act. The validity and applicability of these procedures may not be

challenged in any proceeding brought pursuant to Title VIII or X of the Act,

although the validity and correctness of application of the numeric criteria or

values derived pursuant to this Subpart may be challenged in such proceedings

pursuant to subsection (g) of this Section.

Challenges to application of criteria and values.

A permittee may challenge the validity and correctness of application of

a criterion or value derived by the Agency pursuant to this Section only

at the time such criterion or value is first applied in its NPDES permit

pursuant to 35 Ill. Adm. Code 309.152 or in an action pursuant to Title

VIII of the Act for violation of the toxicity water quality standard.

Failure of a person to challenge the validity of a criterion or value at the

time of its first application to that person’s facility shall constitute a

waiver of such challenge in any subsequent proceeding involving

application of the criterion or value to that person.

Consistent with subsection (g)(1) of this Section, if a criterion or value is

included as, or is used to derive, a condition of an NPDES discharge

permit, a permittee may challenge the criterion or value in a permit

appeal pursuant to 35 Ill. Adm. Code 309.181. In any such action, the

Agency shall include in the record all information upon which it has

relied in developing and applying the criterion or value, and whether

such information was developed by the Agency or submitted by the

petitioner. THE BURDEN OF PROOF SHALL BE ON THE

PETITIONER pursuant to Section 40(a)(1) of the Act.

Consistent with subsection (g)(1) of this Section in an action where

alleged violation of the toxicity water quality standard is based on

alleged excursion of a criterion or value, the person bringing such action

shall have the burdens of going forward with proof and persuasion

regarding the general validity and correctness of application of the

criterion or value.

Subsections (a) through (e) of this Section do not apply to USEPA registered

pesticides approved for aquatic application and applied pursuant to the following

conditions:

Application shall be made in strict accordance with label directions;

Applicator shall be properly certified under the provisions of the Federal

Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 135 et seq.

(1972));

Applications of aquatic pesticides must be in accordance with the laws,

regulations and guidelines of all State and federal agencies authorized by

law to regulate, use or supervise pesticide applications;

No aquatic pesticide shall be applied to waters affecting public or food

processing water supplies unless a permit to apply the pesticide has been

obtained from the Agency. All permits shall be issued so as not to cause

a violation of the Act or of any of the Board's rules or regulations. To

aid applicators in determining their responsibilities under this subsection,

a list of waters affecting public water supplies will be published and

maintained by the Agency's Division of Public Water Supplies.

(Source: Added at 21 Ill. Reg. _________, effective ______________________.)

Section 302.545 Data Requirements

The Agency shall review, for validity, applicability and completeness the data used in

calculating criteria or values. To the extent available, and to the extent not otherwise

specified, testing procedures, selection of test species and other aspects of data acquisition

must be according to methods published by USEPA or nationally recognized standards of

organizations, including but not limited to those methods found in Standard Methods,

incorporated by reference in Section 302.510, or recommended in 40 CFR 132 and

incorporated by reference in Section 302.510.

(Source: Added at 21 Ill. Reg. _________, effective ______________________.)

Section 302.550 Analytical Testing

All methods of sample collection, preservation, and analysis used in applying any of the

requirements of this Subpart shall be consistent with the methods published by USEPA or

nationally recognized standards of organizations, including but not limited to those methods found

in Standard Methods, incorporated by reference in Section 302.510, or recommended in 40 CFR

132 and incorporated by reference in Section 302.510.

(Source: Added at 21 Ill. Reg. _________, effective ______________________.)

Section 302.553 Determining the Lake Michigan Aquatic Toxicity Criteria or Values -

General Procedures

The Lake Michigan Aquatic Life Criteria and Values are those concentrations or levels of a

substance at which aquatic life is protected from adverse effects resulting from short or long

term exposure in water.

Tier I criteria and Tier II values to protect against acute effects in aquatic

organisms will be calculated according to procedures listed at Sections 302.555,

302.560 and 302.563. The procedures of Section 302.560 shall be used as

necessary to allow for interactions with other water quality characteristics such

as hardness, pH, temperature, etc. Tier I criteria and Tier II values to protect

against chronic effects in aquatic organisms shall be calculated according to the

procedures listed at Section 302.565.

Minimum data requirements. In order to derive a Tier I acute or chronic

criterion, data must be available for at least one species of freshwater animal in

at least eight different families such that the following taxa are included:

The family Salmonidae in the class Osteichthyes;

One other family in the class Osteichthyes;

A third family in the phylum Chordata;

A planktonic crustacean;

A benthic crustacean;

An insect;

A family in a phylum other than Arthropoda or Chordata; and

A family from any order of insect or any phylum not already

represented.

Data for tests with plants, if available, must be included in the data set.

If data for acute effects are not available for all the eight families listed above,

but are available for the family Daphnidae, a Tier II value shall be derived

according to procedures in Section 302.563. If data for chronic effects are not

available for all the eight families, but there are acute and chronic data available

according to Section 302.565(b) so that three acute to chronic ratios (ACRs) can

be calculated, then a Tier I chronic criterion can be derived according to

procedures in Section 302.565. If three ACRs are not available, then a Tier II

chronic value can be derived according to procedures in Section 302.565(e).

Data must be obtained from species that have reproducing wild populations in

North America except that data from salt water species can be used in the

derivation of an ACR.

(Source: Added at 21 Ill. Reg. _________, effective ______________________.)

Section 302.555 Determining the Tier I Lake Michigan Basin Acute Aquatic Life Toxicity

Criterion (LMAATC): Independent of Water Chemistry

If the acute toxicity of the chemical has not been shown to be related to a water quality

characteristic, including, but not limited to, hardness, pH, or temperature, the Tier I

LMAATC is calculated using the procedures below.

For each species for which more than one acute value is available, the Species

Mean Acute Value (SMAV) is calculated as the geometric mean of the acute

values from all tests.

For each genus for which one or more SMAVs are available, the Genus Mean

Acute Value (GMAV) is calculated as the geometric mean of the SMAVs

available for the genus.

The GMAVs are ordered from high to low in numerical order.

Ranks (R) are assigned to the GMAVs from "1" for the lowest to "N" for the

highest. If two or more GMAVs are identical, successive ranks are arbitrarily

assigned.

The cumulative probability, P, is calculated for each GMAV as R/(N+1).

The GMAVs to be used in the calculations of subsection (g) must be those with

cumulative probabilities closest to 0.05. If there are fewer than 59 GMAVs in

the total data set, the values utilized must be the lowest four obtained through

the ranking procedures of subsections (c) and (d).

Using the GMAVs identified pursuant to subsection (f) and the Ps calculated

pursuant to subsection (e), the Final Acute Value (FAV) and the LMAATC are

calculated as:

FAV = exp(A) and

LMAATC = FAV/2

Where:

A = L + 0.2236 S

L = [

(lnGMAV) - S(

0.5

))]/4

S = [[

((lnGMAV)

) - ((

(lnGMAV))

)/4]/[

(P) - ((

0.5

))

)/4]]

0.5

If a resident or indigenous species, whose presence is necessary to sustain

commercial or recreational activities, will not be protected by the calculated

FAV, then the SMAV for that species is used as the FAV.

(Source: Added at 21 Ill. Reg. _________, effective ______________________.)

Section 302.560 Determining the Tier I Lake Michigan Basin Acute Aquatic Life Toxicity

Criterion (LMAATC): Dependent on Water Chemistry

If data are available to show that a relationship exists between a water quality characteristic

(WQC) and acute toxicity to two or more species, a Tier I LMAATC must be calculated using

procedures in this Section. Although the relationship between hardness and acute toxicity is

typically non-linear, it can be linearized by a logarithmic transformation (i.e., for any

variable, K, f(K) = logarithm of K) of the variables and plotting the logarithm of hardness

against the logarithm of acute toxicity. Similarly, relationships between acute toxicity and

other water quality characteristics, such as pH or temperature, may require a transformation,

including no transformation (i.e., for any variable, K, f(K) = K) for one or both variables to

obtain least squares linear regression of the transformed acute toxicity values on the

transformed values of the water quality characteristic. An LMAATC is calculated using the

following procedures.

For each species for which acute toxicity values are available at two or more

different values of the water quality characteristic, a linear least squares

regression of the transformed acute toxicity (TAT) values on the transformed

water quality characteristic (TWQC) values is performed to obtain the slope of

the line describing the relationship.

Each of the slopes determined pursuant to subsection (a) is evaluated as to

whether it is statistically valid, taking into account the range and number of

tested values of the water quality characteristic and the degree of agreement

within and between species. If slopes are not available for at least one fish and

one invertebrate species, or if the available slopes are too dissimilar or if too

few data are available to define the relationship between acute toxicity and the

water quality characteristic, then the LMAATC must be calculated using the

procedures in Section 302.555.

Normalize the TAT values for each species by subtracting W, the arithmetic

mean of the TAT values of a species, from each of the TAT values used in the

determination of the mean, such that the arithmetic mean of the normalized

TAT values for each species individually or for any combination of species is

zero (0.0).

Normalize the TWQC values for each species using X, the arithmetic mean of

the TWQC values of a species, in the same manner as in subsection (c).

Group all the normalized data by treating them as if they were from a single

species and perform a least squares linear regression of all the normalized TAT

values on the corresponding normalized TWQC values to obtain the pooled

acute slope, V.

For each species, the graphical intercept representing the species TAT intercept,

f(Y), at a specific selected value, Z, of the WQC is calculated using the

equation:

f(Y) = W - V(X - g(Z))

Where:

f() is the transformation used to convert acute toxicity values to TAT values

Y is the species acute toxicity intercept or species acute intercept

W is the arithmetic mean of the TAT values as specified in subsection (c) of this

Section

V is the pooled acute slope as specified in subsection (e) of this Section

X is the arithmetic mean of the TWQC values as specified is subsection (c) of

this Section

g() is the transformation used to convert the WQC values to TWQC values

Z is a selected value of the WQC

For each species, determine the species acute intercept, Y, by carrying out an

inverse transformation of the species TAT value, f(Y). For example, in the

case of a logarithmic transformation, Y = antilogarithm of (f(Y)): or in the case

where no transformation is used, Y = f(Y).

The Final Acute Intercept (FAI) is derived by using the species acute intercepts,

obtained from subsection (f) of this Section, in accordance with the procedures

described in Section 302.555 (b) through (g), with the word "value" replaced by

the word "intercept". Note that in this procedure geometric means and natural

logarithms are always used.

The Aquatic Acute Intercept (AAI) is obtained by dividing the FAI by two.

If, for a commercially or recreationally important species, the geometric mean

of the acute values at Z is lower than the FAV at Z, then the geometric mean of

that species must be used as the FAV.

The LMAATC at any value of the WQC, denoted by WQCx, is calculated using

the terms defined in subsection (f) and the equation:

LMAATC = exp[V(g(WQCx) - g(Z)) + f(AAI)]

(Source: Added at 21 Ill. Reg. _________, effective ______________________.)

Section 302.563 Determining the Tier II Lake Michigan Basin Acute Aquatic Life Toxicity

Value (LMAATV)

If all eight minimum data requirements for calculating an FAV using Tier I procedures are not

met, a Tier II LMAATV must be calculated for a substance as follows:

a) The lowest GMAV in the database is divided by the Secondary Acute Factor

(SAF) corresponding to the number of satisfied minimum data requirements

listed in the Tier I methodology (Section 302.553). In order to calculate a Tier

II LMAATV, the data base must contain, at a minimum, a GMAV for one of

the following three genera in the family Daphnidae --

Ceriodaphnia

sp.,

Daphnia

sp., or

Simocephalus

sp. The Secondary Acute Factors are:

Number of Minimum data requirements satisfied (required taxa)

Secondary Acute Factor

43.8

26.0

16.0

14.0

12.2

10.4

8.6

If dependent on a water quality characteristic, the Tier II LMAATV must be

calculated according to Section 302.560.

(Source: Added at 21 Ill. Reg. _________, effective ______________________.)

Section 302.565 Determining the Lake Michigan Basin Chronic Aquatic Life Toxicity

Criterion (LMCATC) or the Lake Michigan Basin Chronic Aquatic Life

Toxicity Value (LMCATV)

Determining Tier I LMCATC

When chronic toxicity data are available for at least eight resident or

indigenous species from eight different North American genera of

freshwater organisms as specified in Section 302.553, a Tier I LMCATC

is derived in the same manner as the FAV in Section 302.555 or 302.560

by substituting LMCATC for FAV or FAI, chronic for acute, SMCV

(Species Mean Chronic Value) for SMAV, and GMCV (Genus Mean

Chronic Value) for GMAV.

If data are not available to meet the requirements of subsection (a), a

Tier I LMCATC is calculated by dividing the FAV by the geometric

mean of the acute-chronic ratios (ACRs) obtained from at least one

species of aquatic animal from at least three different families provided

that of the three species:

At least one is a fish;

At least one is an invertebrate; and

At least one species is an acutely sensitive freshwater species if

the other two are saltwater species.

The acute-chronic ratio (ACR) for a species equals the acute toxicity

concentration from data considered under Sections 302.555 or 302.560,

divided by the chronic toxicity concentration.

If a resident or indigenous species whose presence is necessary to sustain

commercial or recreational activities will not be protected by the

calculated LMCATC, then the SMCV for that species is used as the

CATC.

Determining the Tier II LMCATV

If all eight minimum data requirements for calculating a FCV using Tier

I procedures are not met, or if there are not enough data for all three

ACRs, a Tier II Lake Michigan Chronic Aquatic Life Toxicity Value

shall be calculated using a secondary acute chronic ratio (SACR)

determined as follows:

If fewer than three valid experimentally determined ACRs are

available:

i) Use sufficient ACRs of 18 so that the total number of

ACRs equals three; and

ii)

Calculate the Secondary Acute-Chronic Ratio as the

geometric mean of the three ACRs; or

If no experimentally determined ACRs are available, the SACR

is 18.

Calculate the Tier II LMCATV using one of the following equations:

Tier II LMCATV = FAV / SACR

Tier II LMCATV = SAV / FACR

Tier II LMCATV = SAV / SACR

Where:

the SAV equals 2 times the value of the Tier II LMAATV

calculated in Section 302.563

If, for a commercially or recreationally important species, the SMCV is

lower than the calculated Tier II LMCATV, then the SMCV must be

used as the Tier II LMCATV.

(Source: Added at 21 Ill. Reg. _________, effective ______________________.)

Section 302.570 Procedures for Deriving Bioaccumulation Factors for the Lake Michigan

Basin

A bioaccumulation factor (BAF) is used to relate the concentration of a substance in an aquatic

organism to the concentration of the substance in the waters in which the organism resides

when all routes of exposure (ambient water and food) are included. A BAF is used in the

derivation of water quality criteria to protect wildlife and criteria and values to protect human

health.

Selection of data. BAFs can be obtained or developed from one of the

following methods, listed in order of preference.

Field-measured BAF.

Field-measured biota-sediment accumulation factor (BSAF).

Laboratory-measured bioconcentration factor (BCF).

The concentration of particulate organic carbon (POC) and dissolved

organic carbon (DOC) in the test solution shall be either measured or

reliably estimated.

Predicted BCF.

Predicted baseline BCF = Kow.

Calculation of baseline BAFs for organic chemicals.

The most preferred BAF or BCF from above is used to calculate a baseline BAF

which in turn is utilized to derive a human health or wildlife specific BAF.

Procedures for determining the necessary elements of baseline

calculation.

Lipid normalization. The lipid-normalized concentration, C

, of

a chemical in tissue is defined using the following equation:

= C

/ f

Where:

= concentration of the organic chemical in the tissue of

aquatic biota (either whole organism or specified tissue) (μg/g)

= fraction of the tissue that is lipid

Bioavailability.

The fraction of the total chemical in the ambient water that is

freely dissolved, f

, shall be calculated using the following

equation:

= 1 / { 1 + [(DOC)(Kow)/10] + [(POC)(Kow)] }

Where:

DOC = concentration of dissolved organic carbon, kg of

dissolved organic carbon/L of water

Kow = octanol-water partition coefficient of the chemical

POC = concentration of particulate organic carbon, kg of

particulate organic carbon/L of water

Food Chain Multiplier (FCM). For an organic chemical, the

FCM used shall be taken from Table B-1 in 40 CFR 132,

Appendix B (1996) incorporated by reference at Section 302.510.

Calculation of baseline BAFs.

From field-measured BAFs:

Baseline BAF = { [measured BAF

/ f

] - 1 } { 1 / f

}

Where:

BAF

= BAF based on total concentration in tissue and water of

study organism and site

= fraction of the tissue of study organism that is lipid

= fraction of the total chemical that is freely dissolved in the

ambient water

From a field measured biota-sediment accumulation factor

(BSAF):

(Baseline BAF)

(baseline BAF)

(BSAF)

(Kow)

/ (BSAF)

(Kow)

Where:

(BSAF)

= BSAF for chemical “

”

(BSAF)

= BSAF for the reference chemical “

”

(Kow)

= octanol-water partition coefficient for chemical “

”

(Kow)

= octanol-water partition coefficient for the reference

chemical “

”

A BSAF shall be calculated using the following equation:

BSAF = C

/ C

soc

Where:

= the lipid-normalized concentration of the chemical in

tissue

soc

= the organic carbon-normalized concentration of the

chemical in sediment

ii)

The organic carbon-normalized concentration of a

chemical in sediment, C

soc

, shall be calculated using the

following equation:

soc

= C

/ f

Where:

= concentration of chemical in sediment (

g/g

sediment)

= fraction of the sediment that is organic carbon

From a laboratory-measured BCF:

baseline BAF = (FCM) { [measured BCF

/ f

] - 1 } { 1 /f

}

Where:

BCF

= BCF based on total concentration in tissue and water.

= fraction of the tissue that is lipid

= fraction of the total chemical in the test water that is freely

dissolved

FCM = the food-chain multiplier obtained from Table B-1 in 40

CFR 132, Appendix B, incorporated by reference at Section

302.510, by linear interpolation for trophic level 3 or 4, as

necessary

From a predicted BCF:

baseline BAF =

(FCM) (predicted baseline BCF) = (FCM)(Kow)

Where:

FCM = the food-chain multiplier obtained from Table B-1 in 40

CFR 132, Appendix 5, incorporated by reference at Section

302.510, by linear interpolation for trophic level 3 or 4, as

necessary

Kow = octanol-water partition coefficient

Human health and wildlife BAFs for organic chemicals:

Fraction freely dissolved (f

). By using the equation in subsection

(b)(1)(B) of this Section, the f

to be used to calculate human health and

wildlife BAFs for an organic chemical shall be calculated using a

standard POC concentration of 0.00000004 kg/L and a standard DOC

concentration of 0.000002 kg/L:

= 1 / [1+ (0.00000024 kg/L)(Kow)]

Human health BAF. The human health BAFs for an organic chemical

shall be calculated using the following equations:

For trophic level 3:

Human Health BAF

HHTL3

= [(baseline BAF)(0.0182) + 1] (f

)

For trophic level 4:

Human Health BAF

HHTL4

= [(baseline BAF) (0.0310) + 1] (f

)

Where:

0.0182 and 0.0310 are the standardized fraction lipid values for

trophic levels 3 and 4, respectively, that are used to derive

human health criteria and values

Wildlife BAF. The wildlife BAFs for an organic chemical shall be

calculated using the following equations:

For trophic level 3:

Wildlife BAF

WLTL3

= [(baseline BAF)(0.0646) +1] (f

)

For trophic level 4:

Wildlife BAF

WLTL4

=[( baseline BAF)(0.1031) + 1] (f

)

Where:

0.0646 and 0.1031 are the standardized fraction lipid values for

trophic levels 3 and 4, respectively, that are used to derive

wildlife criteria

Human health and wildlife BAFs for inorganic chemicals. For inorganic

chemicals the baseline BAFs for trophic levels 3 and 4 are both assumed to

equal the BCF determined for the chemical with fish.

Human health. Measured BAFs and BCFs used to determine human

health BAFs for inorganic chemicals shall be based on concentration in

edible tissue (e.g., muscle) of freshwater fish.

Wildlife. Measured BAFs and BCFs used to determine wildlife BAFs

for inorganic chemicals shall be based on concentration in the whole

body of freshwater fish and invertebrates.

(Source: Added at 21 Ill. Reg. _________, effective ______________________.)

Section 302.575 Procedures for Deriving Tier I Water Quality Criteria and Values in the Lake

Michigan Basin to Protect Wildlife

The Lake Michigan Basin Wildlife Criterion (LMWC) is the concentration of a substance

which if not exceeded protects Illinois wild mammal and bird populations from adverse effects

resulting from ingestion of surface waters of the Lake Michigan Basin and from ingestion of

aquatic prey organisms taken from surface waters of the Lake Michigan Basin. Wildlife

criteria calculated under this Section protect against long term effects and are therefore

considered chronic criteria. The methodology involves utilization of data from test animals to

derive criteria to protect representative or target species: bald eagle, herring gull, belted

kingfisher, mink and river otter. The lower of the geometric mean of species specific criteria

for bird species or mammal species is chosen as the LMWC to protect a broad range of

species.

This method shall also be used for non-BCCs when appropriately modified to

consider the following factors:

Selection of scientifically justified target species;

Relevant routes of chemical exposure;

Pertinent toxicity endpoints.

Minimum data requirements:

Test dose (TD). In order to calculate a LMWC the following minimal

data base is required:

There must be at least one data set showing dose-response for

oral, subchronic, or chronic exposure of 28 days for one bird

species; and

There must be at least one data set showing dose-response for

oral, subchronic, or chronic exposure of 90 days for one mammal

species.

Bioaccumulation Factor (BAF) data requirements:

For any chemical with a BAF of less than 125 the BAF may be

obtained by any method; and

For chemicals with a BAF of greater than 125 the BAF must

come from a field measured BAF or BSAF.

Principles for development of criteria

Dose standardization. The data for the test species must be expressed as,

or converted to, the form mg/kg/d utilizing the guidelines for drinking

and feeding rates and other procedures in 40 CFR 132, incorporated by

reference at Section 302.510.

Uncertainty factors (UF) for utilizing test dose data in the calculation of

the target species value (TSV).

Correction for intermittent exposure. If the animals used in a

study were not exposed to the toxicant each day of the test

period, the no observed adverse effect level (NOAEL) must be

multiplied by the ratio of days of exposure to the total days in the

test period.

Correction from the lowest observed adverse effect level

(LOAEL) to NOAEL (UF

). For those substances for which a

LOAEL has been derived, the UF

shall not be less than one and

should not exceed 10.

Correction for subchronic to chronic extrapolation (UF

). In

instances where only subchronic data are available, the TD may

be derived from subchronic data. The value of the UF

shall not

be less than one and should not exceed 10.

Correction for interspecies extrapolations (UF

). For the

derivation of criteria, a UF

shall not be less than one and should

not exceed 100. The UF

shall be used only for extrapolating

toxicity data across species within a taxonomic class. A species

specific UF

shall be selected and applied to each target species,

consistent with the equation below.

Calculation of TSV. The TSV, measured in milligrams per liter (mg/L), is

calculated according to the equation:

TSV = { [TD x Wt] / [UF

x UF

] } / { W + [F

TLi

x BAF

WLTLi

] }

Where:

TSV = target species value in milligrams of substance per liter (mg/L).

TD = test dose that is toxic to the test species, either NOAEL or LOAEL.

= the uncertainty factor for extrapolating toxicity data across species

(unitless). A species-specific UF

shall be selected and applied to each target

species, consistent with the equation

= the uncertainty factor for extrapolating from subchronic to chronic

exposures (unitless)

= the uncertainty factor for extrapolation from LOAEL to NOAEL

(unitless)

Wt = average weight in kilograms (kg) of the target species

W = average daily volume of water in liters consumed per day (L/d) by the

target species

TLi

= average daily amount of food consumed by the target species in

kilograms (kg/d)

BAF

WLTLi

= aquatic life bioaccumulation factor with units of liter per kilogram

(L/kg), as derived in Section 302.570

Calculation of the Lake Michigan Basin Wildlife Criterion. TSVs are obtained

for each target species. The geometric mean TSVs of all mammal species is

calculated and also of all bird species. The LMWC is the lower of the bird or

mammal geometric mean TSV.

(Source: Added at 21 Ill. Reg. _________, effective ______________________.)

Section 302.580 Procedures for Deriving Water Quality Criteria and Values in the Lake

Michigan Basin to Protect Human Health-General

The Lake Michigan Basin human health criteria or values for a substance are

those concentrations at which humans are protected from adverse effects

resulting from incidental exposure to, or ingestion of, the waters of Lake

Michigan and from ingestion of aquatic organisms taken from the waters of

Lake Michigan. A Lake Michigan Human Health Threshold Criterion

(LMHHTC) or Lake Michigan Human Health Threshold Value (LMHHTV)

will be calculated for all substances according to Section 302.585, if data is

available. Water quality criteria or values for substances which are, or may be,

carcinogenic to humans will also be calculated according to procedures for the

Lake Michigan Human Health Nonthreshold Criterion (LMHHNC) or the Lake

Michigan Human Health Nonthreshold Value (LMHHNV) in Section 302.590.

Minimum data requirements for BAFs for Lake Michigan Basin human health

criteria:

Tier I.

For all organic chemicals, either a field-measured BAF or a BAF

derived using the BSAF methodology is required unless the

chemical has a BAF less than 125, then a BAF derived by any

methodology is required; and

For all inorganic chemicals, including organometals such as

mercury, either a field-measured BAF or a laboratory-measured

BCF is required.

Tier II. Any bioaccumulation factor method in Section 302.570(a) may

be used to derive a Tier II criterion

(Source: Added at 21 Ill. Reg. _________, effective ______________________.)

Section 302.585 Procedures for Determining the Lake Michigan Basin Human Health

Threshold Criterion (LMHHTC) and the Lake Michigan Basin Human Health

Threshold Value (LMHHTV)

The LMHHTC or LMHHTV is derived for all toxic substances from the most sensitive end

point for which there exists a dosage or concentration below which no adverse effect or

response is likely to occur.

Minimum data requirements:

Tier I. The minimum data set sufficient to derive a Tier I LMHHTC

shall include at least one epidemiological study or one animal study of

greater than 90 days duration; or

Tier II. When the minimum data for deriving Tier I criteria are not

available, a more limited database consisting of an animal study of

greater than 28 days duration shall be used.

Principles for development of Tier I criteria and Tier II values:

The experimental exposure level representing the highest level tested at

which no adverse effects were demonstrated (NOAEL) shall be used for

calculation of a criterion or value. In the absence of a NOAEL, a

LOAEL shall be used if it is based on relatively mild and reversible

effects;

Uncertainty factors (UFs) shall be used to account for the uncertainties

in predicting acceptable dose levels for the general human population

based upon experimental animal data or limited human data:

A UF of 10 shall be used when extrapolating from experimental

results of studies on prolonged exposure to average healthy

humans;

A UF of 100 shall be used when extrapolating from results of

long-term studies on experimental animals;

A UF of up to 1000 shall be used when extrapolating from

animal studies for which the exposure duration is less than

chronic, but greater than subchronic;

A UF of up to 3000 shall be used when extrapolating from

animal studies for which the exposure duration is less than

subchronic;

An additional UF of between one and ten shall be used when

deriving a criterion from a LOAEL. The level of additional

uncertainty applied shall depend upon the severity and the

incidence of the observed adverse effect;

An additional UF of between one and ten shall be applied when

there are limited effects data or incomplete sub-acute or chronic

toxicity data;

The total uncertainty (

of the uncertainty factors) shall not exceed

10,000 for Tier I criterion and 30,000 for Tier II value; and

All study results shall be converted to the standard unit for acceptable

daily exposure of milligrams of toxicant per kilogram of body weight per

day (mg/kg/day). Doses shall be adjusted for continuous exposure.

Tier I criteria and Tier II value derivation.

Determining the Acceptable Daily Exposure (ADE)

ADE = test value /

of the UFs from subsection (b)(2) of this Section

Where:

acceptable daily exposure is in milligrams toxicant per kilogram body

weight per day (mg/kg/day)

Determining the Lake Michigan Basin Human Health Threshold

Criterion (LMHHTC) or the Lake Michigan Basin Human Health

Threshold Value (LMHHTV)

LMHHTC or LMHHTV=

{ ADE x BW x RSC } /

{ WC + [(FC

TL3

x BAF

HHTL3

) + (FC

TL4

x BAF

HHTL4

)] }

Where:

LMHHTC or LMHHTV is in milligrams per liter (mg/L)

ADE = acceptable daily intake in milligrams toxicant per kilogram body

weight per day (mg/kg/day)

RSC = relative source contribution factor of 0.8

BW = weight of an average human (BW = 70 kg)

WC = per capita water consumption (both drinking and incidental

exposure) for surface waters classified as public water supplies = two

liters/day; or per capita incidental daily water ingestion for surface

waters not used as human drinking water sources = 0.01 liters/day

TL3

= mean consumption of trophic level 3 fish by regional sport

fishers of regionally caught freshwater fish = 0.0036 kg/day

TL4

= mean consumption of trophic level 4 fish by regional sport

fishers of regionally caught freshwater fish = 0.0114 kg/day

BAF

HHTL3

= human health bioaccumulation factor for edible portion of

trophic level 3 fish, as derived using the BAF methodology in Section

302.570

BAF

HHTL4

= human health bioaccumulation factor for edible portion of

trophic level 4 fish, as derived using the BAF methodology in Section

302.570

(Source: Added at 21 Ill. Reg. _________, effective ______________________.)

Section 302.590 Procedures for Determining the Lake Michigan Basin Human Health

Nonthreshold Criterion (LMHHNC) or the Lake Michigan Basin Human

Health Nonthreshold Value (LMHHNV)

A LMHHNC or LMHHNV shall be derived for those toxic substances for which any

exposure, regardless of extent, carries some risk of damage from cancer or a nonthreshold

toxic mechanism. For single or combinations of substances, a risk level of 1 in 100,000 (or

-5

) shall be used for the purpose of determination of a LMHHNC or LMHHNV.

Minimum data requirements. Minimal experimental or epidemiological data

requirements are incorporated in the cancer classification determined by USEPA

at Appendix C II A to 40 CFR 132, incorporated by reference at Section

302.510.

Principles for development of criteria or values:

Animal data are fitted to a linearized multistage computer model (Global

1986 in “Mutagenicity and Carcinogenicity Assessment for 1, 3-

Butadiene” September 1985 EPA/600/8-85/004A, incorporated by

reference at Section 301.106 or scientifically justified equivalents). The

upper-bound 95 percent confidence limit on risk at the 1 in 100,000 risk

level shall be used to calculate a risk associated dose (RAD); and

A species scaling factor shall be used to account for differences between

test species and humans. Milligrams per surface area per day is an

equivalent dose between species. All doses presented in mg/kg

bodyweight will be converted to an equivalent surface area dose by

raising the mg/kg dose to the 3/4 power.

Determining the risk associated dose (RAD). The RAD shall be calculated

using the following equation:

RAD = 0.00001 / q

Where:

RAD = risk associated dose in milligrams of toxicant or combinations of

toxicants per kilogram body weight per day (mg/kg/day)

0.00001 (1 X 10

-5

) = incremental risk of developing cancer equal to 1 in

100,000

* = slope factor (mg/kg/day)

-1

Determining the Lake Michigan Basin Human Health Nonthreshold Criterion

(LMHHNC) or the Lake Michigan Basin Human Health Nonthreshold Value

(LMHHNV):

LMHHNC or LMHHNV=

{RAD x BW } / { WC + [(FC

TL3

x BAF

HHTL3

) + (FC

TL4

x BAF

HHTL4

)]}

Where:

LMHHNC or LMHHNV is in milligrams per liter (mg/L)

RAD = risk associated dose of a substance or combination of substances in

milligrams per day (mg/d) which is associated with a lifetime cancer risk level

equal to a ratio of 1 to 100,000

BW = weight of an average human (BW = 70 kg)

WC = per capita water consumption for surface waters classified as public

water supplies = 2 liters/day, or per capita incidental daily water ingestion for

surface waters not used as human drinking water sources = 0.01 liters/day

TL3

= mean consumption of trophic level 3 of regionally caught freshwater

fish = 0.0036 kg/day

TL4

= mean consumption of trophic level 4 of regionally caught freshwater

fish = 0.0114 kg/day

BAF

HHTL3

, BAF

HHTL4

= bioaccumulation factor for trophic levels 3 and 4 as

derived in Section 302.570

(Source: Added at 21 Ill. Reg. _________, effective ______________________.)

Section 302.595 Listing of Bioaccumulative Chemicals of Concern, Derived Criteria and

Values

The Agency shall maintain a listing of toxicity criteria and values derived

pursuant to this Subpart. This list shall be made available to the public and

updated periodically but no less frequently than quarterly, and shall be

published when updated in the Illinois Register.

A criterion or value published pursuant to subsection (a) of this Section may be

proposed to the Board for adoption as a numeric water quality standard.

The Agency shall maintain for inspection all information including, but not

limited to, assumptions, toxicity data and calculations used in the derivation of

any toxicity criterion or value listed pursuant to subsection (a) of this Section

until adopted by the Board as a numeric water quality standard.

(Source: Added at 21 Ill. Reg. , effective _________________________.)

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE C: WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 303

WATER USE DESIGNATIONS AND SITE SPECIFIC

WATER QUALITY STANDARDS

SUBPART A: GENERAL PROVISIONS

Section

303.100

Scope and Applicability

303.101

Multiple Designations

303.102

Rulemaking Required

SUBPART B: NONSPECIFIC WATER USE DESIGNATIONS

Section

303.200

Scope and Applicability

303.201

General Use Waters

303.202

Public and Food Processing Water Supplies

303.203

Underground Waters

303.204

Secondary Contact and Indigenous Aquatic Life Waters

SUBPART C: SPECIFIC USE DESIGNATIONS AND SITE

SPECIFIC WATER QUALITY STANDARDS

Section

303.300

Scope and Applicability

303.301

Organization

303.311

Ohio River Temperature

303.312

Waters Receiving Fluorspar Mine Drainage

303.321

Wabash River Temperature

303.322

Unnamed Tributary of the Vermilion River

303.323

Sugar Creek and Its Unnamed Tributary

303.331

Mississippi River North Temperature

303.341

Mississippi River North Central Temperature

303.351

Mississippi River South Central Temperature

303.352

Unnamed Tributary of Wood River Creek

303.353

Schoenberger Creek; Unnamed Tributary of Cahokia Canal

303.361

Mississippi River South Temperature

303.400

Bankline Disposal Along the Illinois Waterway/River

303.430

Unnamed Tributary to Dutch Creek

303.431

Long Point Slough and Its Unnamed Tributary

303.441

Secondary Contact Waters

303.442

Waters Not Designated for Public Water Supply

303.443

Lake Michigan Basin

303.444 Salt Creek, Higgins Creek, West Branch of the DuPage River, Des Plaines River

SUBPART D: THERMAL DISCHARGES

Section

303.500

Scope and Applicability

303.502

Lake Sangchris Thermal Discharges

APPENDIX A References to Previous Rules

APPENDIX B Sources of Codified Sections

AUTHORITY: Implementing Section 13 and authorized by Sections 11(b) and 27 of the

Environmental Protection Act [415 ILCS 5/13, 11(b), and 27].

SOURCE: Filed with the Secretary of State January 1, 1978; amended at 2 Ill. Reg. 27, p.

221, effective July 5, 1978; amended at 3 Ill. Reg. 20, p. 95, effective May 17, 1979;

amended at 5 Ill. Reg. 11592, effective October 19, 1981; codified at 6 Ill. Reg. 7818;

amended at 6 Ill. Reg. 11161 effective September 7, 1982; amended at 7 Ill. Reg. 8111,

effective June 23, 1983; amended in R87-27 at 12 Ill. Reg. 9917, effective May 27, 1988;

amended in R87-2 at 13 Ill. Reg. 15649, effective September 22, 1989; amended in R87-36 at

14 Ill. Reg. 9460, effective May 31, 1990; amended in R86-14 at 14 Ill. Reg. 20724, effective

December 18, 1990; amended in R89-14(C) at 16 Ill. Reg. 14684, effective September 10,

1992; amended in R92-17 at 18 Ill. Reg. 2981, effective February 14, 1994; amended in R91-

23 at 18 Ill. Reg. 13457, effective August 19, 1994; amended in R93-13 at 19 Ill. Reg. 1310,

effective January 30, 1995; amended in R95-14 at 20 Ill. Reg. 3534, effective February 8,

1996; amended in R97-25 at 21 Ill. Reg. _________, effective ______________________.

Section 303.443 Lake Michigan Basin

The waters of the Lake Michigan Basin shallmust meet the Lake Michigan Basin water quality

standards of 35 Ill. Adm. Code 302 Subpart E. Lake Michigan Basin waters under Illinois

jurisdiction consist of the following:

The Open waters of Lake Michigan means all of the waters within Lake

Michigan in Illinois jurisdiction lakeward from a line drawn across the mouth of

tributaries to Lake Michigan, but not including waters enclosed by constructed

breakwaters;

Lake Michigan harbors and waters within breakwaters, and waters (as defined in

35 Ill. Adm. Code 301.440) within Illinois jurisdiction tributary to Lake

Michigan including streams, sloughs and other watercourses not named

elsewhere in this Part; and

The Chicago River, the North Shore Channel, and the Calumet River are not

part of the Lake Michigan Basin.

(Source: Amended at 21 Ill. Reg. , effective _________________________.)

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE C: WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 304

EFFLUENT STANDARDS

SUBPART A: GENERAL EFFLUENT STANDARDS

Section

304.101

Preamble

304.102

Dilution

304.103

Background Concentrations

304.104

Averaging

304.105

Violation of Water Quality Standards

304.106

Offensive Discharges

304.120

Deoxygenating Wastes

304.121

Bacteria

304.122

Total Ammonia Nitrogen (as N: STORET number 00610)

304.123

Phosphorus (STORET number 00665)

304.124

Additional Contaminants

304.125

304.126

Mercury

304.140

Delays in Upgrading (Repealed)

304.141

NPDES Effluent Standards

304.142

New Source Performance Standards (Repealed)

SUBPART B: SITE SPECIFIC RULES AND

EXCEPTIONS NOT OF GENERAL APPLICABILITY

Section

304.201

Wastewater Treatment Plant Discharges of The Metropolitan Reclamation Sanitary

District of Greater Chicago

304.202

Chlor-alkali Mercury Discharges in St. Clair County

304.203

Copper Discharges by Olin Corporation

304.204

Schoenberger Creek: Groundwater Discharges

304.205

John Deere Foundry Discharges

304.206

Alton Water Company Treatment Plant Discharges

304.207

Galesburg Sanitary District Deoxygenating Wastes Discharges

304.208

City of Lockport Treatment Plant Discharges

304.209

Wood River Station Total Suspended Solids Discharges

304.210

Alton Wastewater Treatment Plant Discharges

304.211

Discharges From Borden Chemicals and Plastics Operating Limited Partnership Into

an Unnamed Tributary of Long Point Slough

304.212

Sanitary District of Decatur Discharges

304.213

UNO-VEN Refinery Ammonia Discharge

304.214

Mobil Oil Refinery Ammonia Discharge

304.215

City of Tuscola Wastewater Treatment Facility Discharges

304.216

Newton Station Suspended Solids Discharges

304.218

City of Pana Phosphorus Discharge

304.219

North Shore Sanitary District Phosphorus Discharges

304.220

East St. Louis Treatment Facility, Illinois-American Water Company

304.221

Ringwood Drive Manufacturing Facility in McHenry County

304.222

Intermittent Discharge of TRC

SUBPART C: TEMPORARY EFFLUENT STANDARDS

Section

304.301

Exception for Ammonia Nitrogen Water Quality Violations

304.302

City of Joliet East Side Wastewater Treatment Plant

304.303

Amerock Corporation, Rockford Facility

APPENDIX A References to Previous Rules

AUTHORITY: Implementing Section 13 and authorized by Sections 11(b) and 27 of the

Environmental Protection [415 ILCS 5/13, 11(b) and 27].

SOURCE: Filed with the Secretary of State January 1, 1978; amended at 2 Ill. Reg. 30, p.

343, effective July 27, 1978; amended at 2 Ill. Reg. 44, p. 151, effective November 2, 1978;

amended at 3 Ill. Reg. 20, p. 95, effective May 17, 1979; amended at 3 Ill. Reg. 25, p. 190,

effective June 21, 1979; amended at 4 Ill. Reg. 20, p. 53, effective May 7, 1980; amended at

6 Ill. Reg. 563, effective December 24, 1981; codified at 6 Ill. Reg. 7818; amended at 6 Ill.

Reg. 11161, effective September 7, 1982; amended at 6 Ill. Reg. 13750, effective October 26,

1982; amended at 7 Ill. Reg. 3020, effective March 4, 1983; amended at 7 Ill. Reg. 8111,

effective June 23, 1983; amended at 7 Ill. Reg. 14515, effective October 14, 1983; amended

at 7 Ill. Reg. 14910, effective November 14, 1983; amended at 8 Ill. Reg. 1600, effective

January 18, 1984; amended at 8 Ill. Reg. 3687, effective March 14, 1984; amended at 8 Ill.

Reg. 8237, effective June 8, 1984; amended at 9 Ill. Reg. 1379, effective January 21, 1985;

amended at 9 Ill. Reg. 4510, effective March 22, 1985; peremptory amendment at 10 Ill. Reg.

456, effective December 23, 1985; amended at 11 Ill. Reg. 3117, effective January 28, 1987;

amended in R84-13 at 11 Ill. Reg. 7291, effective April 3, 1987; amended in R86-17(A) at 11

Ill. Reg. 14748, effective August 24, 1987; amended in R84-16 at 12 Ill. Reg. 2445, effective

January 15, 1988; amended in R83-23 at 12 Ill. Reg. 8658, effective May 10, 1988; amended

in R87-27 at 12 Ill. Reg. 9905, effective May 27, 1988; amended in R82-7 at 12 Ill. Reg.

10712, effective June 9, 1988; amended in R85-29 at 12 Ill. Reg. 12064, effective July 12,

1988; amended in R87-22 at 12 Ill. Reg. 13966, effective August 23, 1988; amended in R86-3

at 12 Ill. Reg. 20126, effective November 16, 1988; amended in R84-20 at 13 Ill. Reg. 851,

effective January 9, 1989; amended in R85-11 at 13 Ill. Reg. 2060, effective February 6,

1989; amended in R88-1 at 13 Ill. Reg. 5976, effective April 18, 1989; amended in R86-17(B)

at 13 Ill. Reg. 7754, effective May 4, 1989, amended in R88-22 at 13 Ill. Reg. 8880, effective

May 26, 1989; amended in R87-6 at 14 Ill. Reg. 6777, effective April 24, 1990; amended in

R87-36 at 14 Ill. Reg. 9437, effective May 31, 1990; amended in R88-21(B) at 14 Ill. Reg.

12538, effective July 18, 1990; amended in R84-44 at 14 Ill. Reg. 20719, effective December

11, 1990; amended in R86-14 at 15 Ill. Reg. 241, effective December 18, 1990; amended in

R93-8 at 18 Ill. Reg. 267, effective December 22, 1993; amended in R87-33 at 18 Ill. Reg.

11574, effective July 7, 1994; amended in R87-33 at 18 Ill. Reg. 11574, effective July 7,

1994; amended in R95-14 at 20 Ill. Reg. 3528, effective February 8, 1996; amended in R94-

1(B) at 21 Ill. Reg. 364, effective December 23, 1996; effective December 23, 1996; amended

in R97-25 at 21 Ill. Reg. _________, effective ______________________.

SUBPART B: SITE SPECIFIC RULES AND

EXCEPTIONS NOT OF GENERAL APPLICABILITY

Section 304.222 Intermittent Discharge of TRC

The acute TRC water quality standard of 35 Ill. Adm. Code 302.208 and 302.504(a) by

operation of Section 304.105 shall not apply to any discharge which contains TRC solely as

the result of intermittent usage for antifouling purposes related to the operation of condensers

and cooling systems. For the purposes of this Section usage of chlorine or related substances

measurable as TRC shall be deemed to be intermittent if usage is restricted to a maximum of

two hours per day per condenser or cooling system unit. Discharge concentration of TRC

averaged or composited over the discharge period shall not exceed 0.2 mg/l nor shall the TRC

concentration exceed 0.5 mg/l at any time.

(Source: Amended at 21 Ill. Reg. , effective _________________________.)

IT IS SO ORDERED.

K.M. Hennessey abstains.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that

the above opinion and order was adopted on the18th day of December 1997, by a vote of 6-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board