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ILLINOIS POLLUTION CONTROL BOARD

July 8, 2004

 On January 13, 2004, the Illinois Environmental Protection Agency (Agency) filed a proposal to amend Part 302 of the Board’s water quality standards. The Agency proposes to change the general use and Lake Michigan water quality standards for radium from 1 picocurie per liter (pCi/L) to 5 pCi/L and apply the proposed standards specifically to surface waters used for public and food processing water supplies. These changes make the radium water quality standards consistent with the federal finished water maximum contaminant level (MCL) and ensures the protection of surface water intakes for raw drinking water in the State. The proposed changes are also expected to relieve a regulatory burden for many existing publicly owned treatment works (POTWs) that receive, treat, and discharge wastewater from public water supplies that remove radium from high radium groundwater.

 Today’s order adopts the Agency’s proposal for publication of first notice in the Illinois Register. First-notice publication in the Illinois Register will begin a 45-day period for interested persons to file public comments with the Board.

The Board will hold a hearing following first-notice publication. The Board first gives this rulemaking’s procedural history before providing an overview of the change in water quality standards and discussing the specific provisions of the first-notice proposal.

PROCEDURAL HISTORY

 The Board accepted this proposal for hearing on January 22, 2004. The Board has held two hearings before the Board hearing officer, members and staff. The first hearing was held on April 1, 2004, at the James R. Thompson Center in Chicago. The second hearing was held on May 6, 2004, at the Board’s offices in Springfield. Both hearings allowed the proponent and any other interested party the opportunity to present testimony on the merits and economic impact of the rulemaking proposal.

The Agency, represented by Ms. Deborah Williams, presented three witnesses at the first hearing. Mr. Jerry Kuhn is the manager of the permit section, responsible for reviewing community water supplies’ construction permit applications, for the Division of Public Water Supply of the Agency. Mr. Bob Mosher is an aquatic biologist in the Agency’s Water Quality Standards Unit. Mr. Blaine Kinsley is a manager of the Industrial Unit in the Division of Water Pollution Control permit section. Mr. Dennis Duffield, on behalf of the City of Joliet, presented testimony at the second hearing.

On April 2, 2004, the Board also received a letter from the Department of Commerce and Economic Opportunity (DCEO) stating that it would not conduct an economic impact study (EcIS) on the proposed rules. As required by Section 27(b) of the Act (415 ILCS 5/27(b) (2002)), the Board made the DCEO’s letter available to the public at least 20 days before hearing. No one testified regarding DCEO’s letter.

The Board hearing officer entered two exhibits into the record at hearing, both offered by the Agency. The transcripts of the Chicago and Springfield hearings were received by the Board on April 1 and May 17, 2004, respectively, and are available on the Board’s website: www.ipcb.state.il.us . The hearing officer set a deadline of June 3, 2004, for filing public comments to ensure the Board would have time to consider any comments before proceeding to first notice.

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MOTION FOR A THIRD HEARING

On June 2, 2004, WRT Environmental (Illinois), L.L.C. (WRT Environmental) simultaneously filed a public comment and moved the Board for an additional merit hearing. ¹ WRT Environmental opposes the Agency’s proposal and states that all radium or uranium removal processes generate radioactive residuals, yet many communities do not have the expertise to safely handle, transport, or dispose of radioactive residuals. WRT Environmental indicates that at a third hearing it would discuss the technical feasibility, economic reasonableness, and environmental impact of the proposal, and the infeasibility or unreasonableness of the existing standards. WRT Environmental requests a third hearing to occur before the Board considers this proposal for second notice. PC1 at 2.

On June 3, 2004, the Environmental Law and Policy Center (ELPC) filed a public comment urging the Board to reserve judgment on the proposal. The ELPC contends that the record lacks information regarding the potential effect of radium on aquatic life and the costs of utilizing processes for removing radium from drinking water that do not result in the discharge of radium. Additional public comments may be filed by anyone until the end of the minimum 45-day period that will start upon first-notice publication of these proposed amendments in the Illinois Register.

On June 14, 2004, the City of Joliet (Joliet) opposed WRT Environmental’s motion for a third hearing. Joliet contends that WRT Environmental presents information related to treatment technologies that can be used to meet the radium public water supply standards and resulting sludge issues. Joliet argues, however, that treatment technologies have nothing to do with this rulemaking, which addresses the general use water quality standards for radium. Joliet contends that WRT Environmental cannot claim that it did not know about this rulemaking because the Board has provided adequate notice of both hearings held in this matter. For these reasons, Joliet argues that WRT Environmental has not raised any issues that would necessitate another hearing in this matter.

On June 18, 2004, the Agency responded in opposition to the motion for a third merit hearing. Similarly, the Agency argues that the Board has adequately noticed the two hearings and developed a complete record in this matter. The Agency argues that WRT Environmental’s request will cause the Board, the Agency, and other participants unnecessary expenses to participate in a third hearing. The Agency notes that WRT Environmental has submitted public comments in this matter. For these reasons, the Agency moves the Board to deny WRT Environmental’s motion for a third hearing.

On July 6, 2004, the ELPC and Sierra Club filed a public comment specifically in favor of WRT Environmental’s motion for a third hearing. The groups argue that it would be “better practice and most economical of the time of the Board” to hold the third hearing before issuing a first notice order.

The Board agrees with those participants who believe that the progress of this rulemaking should not be delayed. Accordingly, the Board will not schedule a third hearing prior issuing its first-notice order today. But the Board further notes that under the Illinois Administrative Procedures Act, interested persons can request a public hearing. The Board must grant this request under certain conditions. See 5 Ill. Adm. Code 100/5-40(b) (2002). Rather than waiting for a qualifying request to be filed, the Board will commit to hold a hearing after publication in the Illinois Register of today’s first-notice proposal.

Neither Joliet’s nor the Agency’s responses address the public comments submitted by the ELPC and Sierra Club urging the Board to more thoroughly develop the record. In its public comment, WRT Environmental states it can address concerns such as those raised by the ELPC and Sierra Club; the potential effect of radium on aquatic life and the costs of utilizing processes for removing radium from drinking water that do not result in the discharge of radium. The Board directs the hearing officer to schedule a third hearing.

OVERVIEW OF THE PROPOSED CHANGES IN RADIUM WATER QUALITY STANDARDS

 In the proposal, the Agency states that radium is a naturally occurring radioactive metal that exists in several isotopes, and is commonly found in Illinois groundwater. According to the Agency, the proposed changes to Sections 302.207 and 302.525 eliminate the existing general use and Lake Michigan (respectively) water quality standards for radium 226, yet retain the existing radioactivity standards for gross beta particle activity and strontium 90. Statement at 7-8. ² The proposed new Section 302.307 establishes a public and food processing water supply standard for radium 226 and 228 combined. Id. at 7. The Agency states that these proposed amendments correspond to the United States Environmental Protection Agency’s MCL for finished drinking water. Id. at 8. This federal drinking water standard became effective December 8, 2003. National Primary Drinking Water Regulations; Radionuclide; Final Rule, 65 Fed. Reg. 76707 (Dec. 7, 2000).

 The Agency contends this proposal is protective of the sensitive designated use of the State’s waters. Statement at 8. Additionally, the Agency contends that the proposal, if adopted, relieve a regulatory burden for many existing POTWs and public drinking water supplies that may not be in compliance with the existing general use radium water quality standards. Statement at 15. According to the Agency, POTWs that are attached to public drinking water supplies using high radium groundwater as the potable raw water source will benefit because the proposed rulemaking increases the water quality standard for radium 226 and 228 combined from 1 pCi/L to 5 pCi/L and limits the applicability of the proposed standards to public and food processing water supplies. Id.

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BACKGROUND ON RADIUM 226 AND RADIUM 228

 Radium 226 emits alpha radiation and radium 228 emits beta radiation. The half-life of radium 226 is 1,600 years while radium 228 has a half-life of 5.7 years. Radium may exist in Illinois streams below sewage treatment plants serving communities that utilize high radium groundwater as drinking water at levels exceeding the existing general use water quality standard of 1 pCi/L. Statement at 2. Discharges into larger streams generally receive enough dilution to meet the standard. For example, recent stream concentrations in the Fox River measured under 1 pCi/L. Statement at 2-3. Most Illinois community water supply facilities with high concentrations of radionuclides in the source water are located in the northern half of the State of Illinois and in a region that stretches from Henderson County in the west to Cook and Lake Counties in the northeast. Statement at 3. Sewage treatment discharges to very small streams where no dilution is present have the potential to contain as much as 5 to 10 pCi/L depending on concentrations in the groundwater and efficiency of treatment in removing radium to the sewage sludge. Id.

 The Board adopted the general use water quality standard for radium 226, 1 pCi/L, in 1972. Statement at 3; citing R71-14. The same standard appeared in the Lake Michigan Basin water quality standards in 1997. The standard has applied to Lake Michigan since 1972, but the 1997 regulation merely reflected a change in format of how Lake Michigan standards were presented in the Board’s rules. The Agency contends that a federal source called the Green Book (Report of the Committee of Water Quality Criteria. April 1, 1968) appears to be the source for the Board’s general use water quality standards of 1972. Statement at 5. The Green Book recommends a “permissible” value of 3 pCI/L for radium 226 and a “desirable value” of <1 pCi/L. These values for strontium 90 are 10 and <2, and for gross beta, 1000 and <100 pCi/L. These values were intended to provide guidance for setting standards for raw water quality at point of intake. Statement at 5. However, when the Board adopted the radium standards, the Board chose the more stringent “desirable values” and also made the standards generally applicable. Id.

 The current federal finished drinking water Maximum Contaminant Level (MCL) for radium 226 plus radium 228 is 5 pCi/L. Since the MCL is a finished water standard, the Agency argues that protecting nearly all intake waters at 1 pCi/L, the current Illinois general water quality standard, is excessively stringent. Statement at 6.

 The Agency proposes two changes to the existing General Use and Lake Michigan Basin radium water quality standards. First, the Agency proposes to eliminate the existing general use water quality standard for radium 226 at Section 302.207, but retain the standards for gross beta and strontium 90. Second, the Agency proposes to establish a new public and food processing water supply standard of 5 pCi/L for combined radium 226 and 228 at Section 302.307 that corresponds to the federal finished drinking water MCL. The Agency’s proposal also deletes the radium 226 standard from the Lake Michigan basin water quality standards at Section 302.525. Since Lake Michigan is a public water supply for many Chicago communities, the public supply intakes on and from Lake Michigan will be protected by the proposed public water supply standard for combined radium 226 and 228 at 5 pCi/L, but under the Agency’s proposal, there will be no separate radium standard for the Lake Michigan basin.

 The Agency’s proposal retains the existing radioactivity standards for both gross beta and Strontium 90 for the Lake Michigan basin. In summary, the proposed changes will apply a radium standard that protects surface water intakes for raw drinking water at the same level applicable to finished drinking water. Statement at 8.

Bases for the Proposed Standards

 The Agency states that its basis for making the proposed standard applicable only to public and food processing supplies is that there is no indication that radium is anything but a threat to human health via drinking water. The Agency further notes that radium is a known carcinogen and, accordingly, standards that protect drinking water are necessary. Statement at 9. Other than human health, the Agency states that it did not find any scientific information concerning the impact of radium on aquatic life. Id. The Agency states its research proves that Illinois is unique compared to other states with radium regulations in having aquatic life water quality standards. Statement at 9. Therefore, according to the Agency, the proposed changes protect all uses that radium may impact. Statement at 9.

 The Agency contends that where high radium groundwater is used, radium in treated sewage effluent is expected at levels above the existing general use standard. Statement at 14. When the receiving waters are small streams, the water quality standard is likely exceeded. The Agency states it has not attempted to enforce the existing violations, preferring to change the water quality standards to “correctly regulate radium and thereby eliminate the violations.” Id.; see Tr. 1 at 40.

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Available Technologies for Removing Radium from Drinking Water Supplies

 The Agency states that these regulations impact over 100 community water supplies with radionuclides present in their source water used for drinking at concentrations higher than the MCL of 5 pCi/L. The Agency states that community water supplies that exceed the MCL have three basic options to lower radium levels: (1) blending the high radium source water with an unaffected source of water; (2) acquiring an alternative source for drinking water; or (3) installing treatment for the source water. Statement at 12. The Agency notes that the USEPA considers ion exchange, reverse osmosis and lime softening as the best available technologies to meet public water supply requirements for radium. Small system (facilities servicing less than 10,000 people) compliance technologies also include green sand filtration, hydrous manganese oxide filtration, and enhanced coagulation/filtration. The Agency states that almost all radium in drinking water pumped from the ground ends up either in sewage sludge or effluent. Statement at 14.

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Costs and Technical Feasibility

 The Agency states that the technologies discussed above reduce radium in the influent being treated in water treatment plants, but not the effluents from POTWs. Statement at 14. The Agency states the proposal seeks to focus on limiting radium discharges that impact surface water sources used by public drinking water supplies. In communities that use groundwater with high levels of radium as the drinking water source rather than the surface waters, the Agency expects that sources will not need to further address radium.

 The Agency expects this rulemaking to have a positive economic impact since it both increases the water quality standard for radium 226 and 228 and limits the waters to which the standard applies. Statement at 15. Because the proposal sets a radium level of 5 pCi/L for surface waters being used by public drinking water supplies, the Agency states that the proposed changes require no new technology. Thus, the Agency expects that the proposal will not negatively impact any existing sources. Id.

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DISCUSSION OF FIRST-NOTICE PROPOSAL

Below the Board addresses the issues raised at hearing. The Agency testified that by making the water quality standard for public and food processing water supplies the same as the drinking water MCL, this rulemaking will allow community water supplies to come into compliance with the Safe Drinking Water Act while preventing these same water supplies from creating non-compliance issues for publicly owned treatment works. The Agency notes that above all, the rulemaking protects surface water quality. Tr. 1 at 13-14.

 At hearing, the Agency stated that the proposed rule will not require publicly owned treatment plants to undergo antidegradation analyses because there will be no new radium discharges, since there are no new radium loading on the treatment works. Tr. 1 at 50. If a new source of radium is proposed, the new source would have to justify the discharge under the antidegradation rules, which would include studies of treatment alternatives and steps to minimize any necessary radium discharges. Tr. 1 at 27.

 As discussed above, the Agency indicated at hearing that it has not enforced the current water quality standard because there exists no reasonable alternative for publicly owned treatment plants discharging into small streams to meet the standard. Whether a drinking water public supply removes radium from the source water or not, does not impact the radium load for the POTW because the wastewater from the water supplies also ends up at the POTW. Tr. 1 at 43. The Agency contends that the only way that radium will be reduced is if communities abandon those deep wells as their water source. Id.

ORDER

 The Board proposes for first notice the following amendments to 35 Ill. Adm. Code 302 and directs the Clerk to file the proposed rules with the Secretary of State for publication in the Illinois Register. Proposed deletions to the current rules are stricken, and proposed additions are underlined.

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  Antidegradation

SUBPART B: GENERAL USE WATER QUALITY STANDARDS

Section

302.201  Scope and Applicability

302.202  Purpose

302.203  Offensive Conditions

302.204  pH

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  Total Ammonia Nitrogen

302.213  Effluent Modified Waters (Ammonia)(Repealed)

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

302.307  Radium 226 and Radium 228

SUBPART D: SECONDARY CONTACT AND INDIGENOUS AQUATIC LIFE STANDARDS

Section

302.401  Scope and Applicability

302.402  Purpose

302.403  Unnatural Sludge

302.404  pH

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, Applicability, and Definitions

302.502  Dissolved Oxygen

302.503  pH

302.504  Chemical Constituents

302.505  Fecal Coliform

302.506  Temperature

302.507  Thermal Standards for Existing Sources 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)

302.525  Radioactivity

302.535  Ammonia Nitrogen

302.540  Other Toxic Substances

302.545  Data Requirements

302.550  Analytical Testing

302.570  Procedures for Deriving Bioaccumulation Factors for the Lake Michigan Basin

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

302.633  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

TABLE A  pH-Dependent Values of the AS (Acute Standard)

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 22 Ill. Reg. 1356, effective December 24, 1997; amended in R99-8 at 23 Ill. Reg. 11249, effective August 26, 1999; amended in R01-13 at 26 Ill. Reg. 3505, effective February 22, 2002; amended in R02-19 at 26 Ill. Reg. 16931, effective November 8, 2002; amended in R02-11 at 27 Ill. Reg. 166, effective December 20, 2002; amended in R_____ at _____ Ill. Reg. _____, effective ____________________.

SUBPART B: GENERAL USE WATER QUALITY STANDARDS

Section 302.207  Radioactivity

(Source: Amended at _____ Ill. Reg. __________, effective __________)

SUBPART C: PUBLIC AND FOOD PROCESSING WATER SUPPLY STANDARDS

Section 302.307 Radium 226 and 228

Radium 226 and 228 (STORET number 11503) combined concentration shall not exceed 5 picocuries per liter (pCi/L) at any time.

(Source: Amended at _____ Ill. Reg. __________, effective __________)

SUBPART E: LAKE MICHIGAN BASIN WATER QUALITY STANDARDS

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:

(Source: Amended at _____ Ill. Reg. __________, effective __________)

 IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board adopted the above opinion and order on July 8, 2004, by a vote of 5-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

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