RECE~V~DCLERK’S
OFACE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DEC 1 02004
STATE
OF ~LUNO~S
IN
THE MATTER OF:
)
Pollution Controi Board
)
REVISIONS TO RADIUM WATER QUALITY
)
R 04-21
STAINDARDS: PROPOSED NEW
35
ILL. ADM
)
(Rulemaking —Water)
CODE 302.307 AND AMENDMENTS TO
)
35
ILL. ADM. CODE 302.207 and
302.525
)
NOTICE
TO:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
I
James R. Thompson Center
100 W. Randolph Street, Suite 11-500
Chicago, Illinois 60601
SEE
ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that I have filed with the Office ofthe Pollution
Control Board the POST-HEARING COMMENTS OF THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY on behalfofthe Illinois Environmental Protection Agency, a copy of
which is herewith served upon you.
Date: December 8, 2004
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
Assistant Counsel
Division ofLegal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Spring field, IL 62794-9276
THIS FILING IS SUBMITTED ON
217/782-5544
RECYCLED PAPER
CLERK’S OFFICE
DEC 102004
STATE OF ~LLIN0IS
PolIut~onControl Board
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
)
REVISIONS TO RADIUM WATER
)
QUALITY STANDARDS: PROPOSED
)
NEW
35
ILL.ADM.CODE 302.307
)
R04-021
AND AMENDMENTS TO
35
ILL.ADM.
)
Rulemaking
-
Water
CODE 302.207 AND 302.525
)
)
POST-HEARING COMMENTS OF THE ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY
NOW COMES the
ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY
(“Illinois EPA” or “Agency”), by and through one ofits attorneys, Deborah J. Williams,
and hereby respectfully submits to the Illinois Pollution Control Board (“Board”) its Post-
Hearing Comments in the above-captioned regulatory proceeding. h~support thereof, the
Illinois EPA states as follows:
PROCEDURAL HISTORY AND BACKGROUND ON THE ILLINOIS
EPA’S PROPOSAL
Under Section 303(c) ofthe Clean Water Act, the Illinois EPA has the obligation
to no less than every three years conduct reviews ofits water quality standards and
update those standards where needed. 33 U.S.C. 13 13(c). As part ofthat process, the
Agency filed a proposal to update the Water Quality Standards for Radium on January
13, 2004.
The current General Use water quality standard for radium 226 (contained in 35
Ill. Adm. Code 302.207) is 1 picocurie per liter (“pCi/L”) and was adopted by the Board
in the initial set ofBoard regulations in 1972.
See,
R71-14. An identical standard
appeared in the regulations for the Lake Michigan Basin in 1997 due to a change in the
format ofhow Lake Michigan standards were presented. 35 Ill. Adm. Code
305.525.
This standard has been continuously applicable in Lake Michigan since 1972, however.
There is no existing standard for radium 228. As a result ofthe process of requiring
community water supplies in the northern Illinois “radium belt” to come into compliance
with the federal Maximum Contaminant Level (“MCL”) forradium of5 pCi/L radium
226 and radium 228 combined, the Illinois EPA began to investigate the history ofits
long overlookedradium General Use water quality standard.
Regulatory history research by the Illinois EPA concluded that the entire basis for
the existing standard was faulty and without merit in science, fact orpolicy.
See,
Statement ofReasons at 3-6, Transcript (“Tr.”) ofApril 1, 2004 hearing at 17-23. No
evidence has been presented in this proceeding to conflict with this initial conclusion.
Review ofthe historical basis for the 1 pCi/L radium 226 standard reveals that the Board
was attempting to set a water quality standard that was consistent with the then existing
Sanitary Water Board regulations. The Board claimed to be basing its 1 pCi/L radium
226 standard on the existing Sanitary Water Board standard. Had the Board correctly
done so, it would have done two things differently. First, it would have set the standard
at the number used by the SanitaryWater Board of3 pCi/L radium 226. This 3 pCi/L
figure was based on the science available at the time that indicated that a level of3 pCi/L
would ensure protection ofhuman health from consumption ofdrinking water. Second,
had the Board correctly adopted the existing Sanitary Water Board standard it would
have made the standard applicable only at public water supply intakes rather than all
surface waters ofthe State. None ofthe parties to this proceeding have disputed that the
existing General Use Water Quality standard for radium was simply a mistake.
2
Since the adoption ofthe Board’s initial water quality standards regulations and
the predecessor Sanitary Water Board regulations, U.S. EPA has concluded that
5
pCi/L
is the appropriate standard protective ofthe human consumption use. Tr. ofApril 1, 2004
Hearing at 10-17. Therefore, in its regulatory proposal the Illinois EPA proposed adding
a combined radium 226 and 228 water quality standard of5 pCi/L to the Board’s Public
and Food Processing Water Supply standards, found in Subpart C ofSubtitle C ofthe
Board’s Water Quality Standards Regulations.
See,
35 Ill. Adm. Code 302.301-302.306.
The Board’s Public and Food Processing Water Supply standards are cumulative with the
Board’s General Use water quality standards and apply “at any point at which water is
withdrawn for treatment and distribution as potable supply or for food processing.” 35
Ill. Adm. Code 302.301. As presented in the Agency’s proposal and the Board’s First
Notice, the new standard would be placed in Section 302.307 ofSubpart C ofPart 302~
Following the first two hearings, it became clear that the second component ofthe
Agency’s proposal would understandably prove more controversial. In addition to
adding the new standard to Subchapter C, the Illinois EPA has also proposed to repeal the
current General Use standard in Section 302.207 of Subpart B and the Lake Michigan
Basin standard in Section 302.525 ofSubpart E.’ The basis for the second component of
the Illinois EPA proposal was a review ofexisting scientific literature and U.S. EPA
guidance which reached the conclusion that no reliable scientific data is available on
which to form a conclusion regarding an appropriate water quality standard to protect the
aquatic life use. U.S. EPA has developed no water quality criteria document on radium
‘There is no evidence in the Record of any controversy specifically regarding the repeal of the Lake
Michigan Basin radium water quality standard. There are several reasons for this. First, Lake Michigan is
a drinking water supply and will therefore be subject to the
5
pCiIL water quality standard in the Illinbis
EPA’s proposal. There is also no factual evidence of expected discharges of radium to LakeMichigan.
3
and does not mandate states to regulate radium in waternot being used as a public water
supply. In addition, no party to this proceeding has been able to dispute the Illinois
EPA’s initial conclusion presented to the Board in its proposal that no controlled,
experimental studies ofthe type mandated by U.S. EPA’s guidance on establishing water
quality standards is currently available forradium. The Illinois EPA does agree with
several commenters that there is some level at which radium in surface waters might be
harmful to aquatic life, but has been unable to provide the Board with the scientific basis
on which to place that number. Clearly the consensus ofthe radiation science community
has always been that protection ofhumans will protect the environment. The, Illinois
EPA is still convinced, afterreview of additional information provided by WRT, that the
levels ofradium harmful to the most sensitive species ofaquatic lifewould be higher
than levelsA
totalexpectedoffourtohearingsbe
foundoverin thefiveenvironment.different
days2 have been held on this matter.
The Board issued a First Notice Opinion on July 8, 2004 following the first two hearings
and the proposed rule was published for First Notice in the Illinois Register on August 6,
2004. Following a requestby WRT, the Board granted an additional merit hearing in this
matter during the first notice period. When the time allotted for a third hearing did not
allow sufficient time for the completion ofquestioning ofWRT’s witnesses, a fourth
hearing was scheduled and held. The Agency also submitted answers to pre-filed
questions ofthe Environmental Law and Policy Center at the August
25,
2004 hearing.
See,
Exhibit 12.
2One example ofthe uniqueness of pointing to a safe level of radium compared to other parameters
regulated by the Board is seen in the consensus reached by the participants in this proceeding that the most
sensitive species is not a mussel or caddis fly but a riparian mammal who would be exposed to the largest
dose ofradium based on bioaccumulation and lifespan.
4
ADDITIONAL STUDIES AND TECHNICAL SUBMITTALS BY WRT
The Illinois EPA would like to briefly review and summarize for the Board the
additional technical information submitted by WRT. This review will focus on studies.
and other tools brought to the Board’s attention during the third and fourth hearings in
this regulatory proceeding.
National Council on Radiation Protection Study
At the August
25,
2004 hearing in this matter, WRT pointed the Board’s attention
to a study by a well respected radiation group entitled Effects ofIonizing Radiation on
Aquatic Organism~,National Council on Radiation Protection and Measurements Report
No. 109, Bethesda MD (1991).
See,
Exhibit 10. WRT was able to draw no conclusions
forthe Board on the meaning ofthis report except to saythat it was improperly
overlooked by the Illinois EPA in its preparation ofthis regulatory proposal. The Illinois
EPA review this document and found only one reference to radium in particular on page
55.
An Agency toxicology expert attempted to translate the dose provided in Table
7.5
on page
55
to a concentration value in pCi/L to estimate what concentration ofradium in
surface waters would provide a dose to aquatic life comparable to the-dose to humans
from drinking water consumption relied on by the MCL. This conversion resulted in an
extremely high value of22,000 pCi/L. See, Exhibit 12 at No. 2. None ofthe
commenters have thus far provided a different interpretation ofthat document.
Observational Study of Round Lake in Florida
WRT also submitted an unpublished, non-peer reviewed study from a lake in
Florida called Round Lake.
See,
Attachment D to Exhibit 14. That study found high
concentrations ofradium in mussels in a lake that was being augmented at extremelyhigh
5
rates with groundwater from a high radium aquifer. This study merely recorded radium
concentrations but made no conclusions about whether any adverse environmental
impacts were observed in the mussels orriparian mammals inhabiting the area. It seems
clear that this research is being conducted on a unique ecosystem that faces significant
challenges not found in Illinois streams or even in Illinois lakes.
Department of
Energy Screening Model
WRT presented testimony on and excerpts from another document from the
Department of Energy entitled “A Graded Approach for Evaluating Radiation Doses to
Aquatic and Terrestrial Biota” DOE-STD-1153-2002 (2002) (hereinafter referred to as
“DOE Model”).
See,
Exhibit
15.
WRT witnesses presented testimony that this self-
described screening tool provided support for maintaining the current water quality
standard of 1 pCi/L radium 226. The authors of the model do not support its use for the
purpose of setting water quality standards but instead developed it as a tool for doing first
tier evaluations ofDepartment ofEnergy clean-up sites. Exhibit 15 at iii. The evidence
presented in the Record at hearings three and four seems to suggest that while this model
is not the sort ofdocument that would be used for setting water quality standards, it might
have some role in this process were realistic assumptions regarding Illinois plant and
animal life, stream and sediment conditions and other factors to be utilized. It would be
unwise and setting a bad precedent for future rulemakings for the Board to conclude that
the default assumptions in this model presented a valid basis for a statewide General Use
water quality standard. To accept the default assumptions of the DOE Model as a water
quality standard or to leave the existing standard unchanged as suggested by WRT would
leave many publically owned treatment works in Illinois, including any who choose to
6
usie WRT’s system to comply with the MCL of 5 pCi/L, out ofcompliance with the
surface water quality standard.
Other information and testimony
In addition
to
the above studies,
Dr.
Brian Anderson testified to an internet search
he conducted to conclude that the Illinois EPA’s preparation ofthis proposal had been
irresponsible and faulty. Tr. of October 21, 2004 Hearing at 14-16. Dr. Anderson did not
provide the Board with a print out ofthe “hits” received in that search and admitted he
did not review any ofthe documents for their relevance to this proceeding. Tr. of
October 21, 2004 Hearing at 46. The Illinois EPA believes that, upon further review, the
Board and any other unbiased observer will be able to conclude that there is insufficient
science available to make the determination the Board is asked to make in water quality
standards proceedings with regards to radium 226 and 228.
Testimony presented at all fourhearings supports the Agency’s consistent
position that currently there is virtually no data regardingradium in the Illinois
environment. The Illinois EPA was able to present the example ofradium sampling done
once in the Fox River that obtained a value of less than 1 pCi/L. Statement ofReasons at
3. Neither the Illinois EPA, U.S. EPA, the Division ofNuclear Safety at the Illinois
Emergency Management Agency (“IEMA”) nor any other regulatory Agency with a
presence in Illinois is known to have ambient water quality or sediment data available for
the Board to consider in this proceeding. The question for the Board to consider is
whether this absence ofdata and scientific studies is a result ofineptitude on the part of
each of these regulatory bodies or whether it is based on the conclusion by experts in the
field that the possibility ofmeasurable environmental impacts was not deemed plausible
7
enough to justify the dedication oflimited research dollars and staff time. Tr. ofOctober
22, 2004 hearing at 357.
Information was requested by the Board at the fourth hearing regarding effluent
limits for radium placed on those facilities that must be licensed by the Division of
Nuclear Safety at IEMA or its federal counterparts. Tr. ofOctober 21, 2004 hearing at
138. It is the Illinois EPA’s understanding that information to that effect will be
submitted by JEMA in this proceeding. In summary, the discharge standard for IEMA
licensees to surface waters is 60 pCi/L and a much higher standard applies to discharges.
to sanitary sewers. 32 Ill. Adm. Code 340, 10 CFR Part 20 Appendix B Table 2.
WRT submitted an enormous quantity ofinformation outside the scope ofthis
proceeding. Primarily, this irrelevant information focused on issues ofworker safety,
radium in sludge and alternative treatment technologies for drinking water. The Illinois
EPA does not dispute the importance ofany ofthese points in the proper context.
Worker safety issues are beyond the expertise and jurisdiction ofeither the Illinois EPA
orthe Board and fall within the expertise ofIEMA, the Illinois Department ofLabor or
the Occupational Safety and Health Administration. The Illinois EPA does rely on the
expertise ofJEMA staff on radiation safety issues in guiding permitting decisions the
Agency makes. Issues regarding radium in sludge are addressed currently through a
Memorandum ofAgreement between Illinois EPA and the former Department ofNulcear
Safety and will be addressed in more detail in an upcoming rulemakingproceeding
before the Board on regulations specifically applicable to the land application ofsludge.
Finally, the Illinois EPA expresses no opinion in this proceeding regarding the efficacy or
wisdom ofWRT’s as yet unproven radium removal technology. The Board simply can
8
not mandate or prohibivany particular technology or group oftechnologies through a
water quality standards proceeding. Treatment technology requirements for drinking
water facilities could be addressed through amendments to the Board’s public water
supply treatment regulations or wastewater pre-treatment regulations.
Radium Water Quality Standards in Other States
U.S. EPA has established no radium water quality criteria document or guidance
and does not require states to regulateradium levels in surface waters. In developing this
proposal and in responding to additional concerns raised by commenters, the Illinois EPA
contacted a number ofother states regarding their radium watercpxalitystandards. A
table documenting those standards was submitted to the Board on November 23, 2004 in
response to the Board’s request for additional information. In summary, Illinois EPA’s
technical staff looked into radium water quality standards in 13 other states and the Ohio
River Sanitation Conm~iission,(“ORSANCO”).3 These 13 states and ORSANCO were
chosen because they either neighbored Illinois or were thought to have radium issues
similar to those seen in Illinois.
Ofthese thirteen states, four states have standards similar to that proposed by
Illinois EPA and four states have no radium water quality standard at all. Arizona, Utah,
Iowa and Oklahoma have water quality standards of
5
pCi/L applicable only to waters
• designated for domestic water supply use or as Public Water Intakes. Other waters in
these states have no radium water quality standard
--
just like in Illinois EPA’s proposal
~The states researched were as follows: Arizona, California, Florida, Iowa, Michigan, Ohio, Oklahoma,
Utah, Wisconsin, Colorado, Missouri, Indiana and Minnesota.
9
to the Board.4 The four states that have no water quality standards for radium are
Michigan, Ohio, Wisconsin and Minnesota.
Of the remaining five states, three states have radium water quality standards of5
pCi/L forall waters. These states are Florida, Colorado and Missouri. None ofthese
states have developed their standard based on protection ofwildlife or aquatic life but
rather have based these standards on the presumption that protection ofhuman health will
guarantee protection ofthe environment. In addition, Indiana has established a standard
of 3 pCi/L forPublic Water Intakes and other waters in the state have no standard.
California has developed a narrative for all waters, which states “Radionuclides shall not
cause impact to humans, aquatic life orwildlife.” Finally, ORSANCO’s water quality
standard is 4 pCiIL for the Ohio River which has been designated as a Public Water
Supply.
Therefore, looking at these other states’ water quality standards for radium,
Illinois EPA’s current radium water quality standard is significantly and unjustifiably
more stringent than that ofany other State. Other States generally have either adopted
something similar to what Illinois EPA has proposed or have simply relied on the MCL
as a safe level for protection ofall uses ofthe receiving stream absent more specific
scientific information. Illinois EPA is aware ofno State that has established a water
quality standard for radium based on the protection ofthe aquatic life or wildlife use.
CONCLUSION
A relatively large and confusing Record has developed in this proceeding that
began in the eyes ofmost participants as an uncontroversial one. There is no dispute that
“Utah also has an alpha-emitter standard of 15 pCiJL present for wildlife protection.
10
the existing water quality standard is the result of a thirty year old mistake. Some argue it
should remain broken, but most agree that it should be fixed. The disagreements in this
proceeding are primarily over howto establish a water quality standard that will protect
aquatic life and wildlife in Illinois when there is insufficient science available to answer.
the questions that must be asked when setting a standard. The information gaps include
the absence ofwater quality, sediment or biological data; the absence ofcontrolled,
experimental toxicological or radiation studies; and the absence ofU.S. EPA or other
regulatory guidance. It is not entirely clear why so little attention has been given to the
question ofwhat level ofradiation exposure is acceptable on a population basis fornon-
humans, but it may be possible over the next three years or at some other point in the
future to resolve some ofthese information gaps by acquiring additional data. It may also
be possible to use future data in conjunction with the existing D.O.E. model or some yet
to be developed tool to attempt to do something no other State has yet done
—
develop a
water quality standard for the protection ofthe aquatic life and wildlife use. Should this
or any additional science become available, the Illinois EPA will again propose revision
ofthe radium water quality standard to the Board. In the meantime, the Illinois EPA asks
the Board to correct a mistaken regulation and not require the wastewater treatment
community to comply with a water quality standard more stringent that its drinking water
standard when all available information suggests that all human consumption is the most
sensitive use for this parameter.
The Illinois EPA appreciates the time and resources the Board has dedicated to
the resolution of this regulatory proceeding and the opportunity the Board has granted all
11
parties to the proceeding to participate and present documents and testimony forthe
Board’s consideration.
WHEREFORE, for the reasons stated above, the Illinois EPA respectfully
requests that the Board proceed to Second Notice on the proposed amendments to the
radium water quality standards.
•
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By(2~~4j49tth2kSz\
•
Deborah J. ~illiams
Assistant Counsel
Division ofLegal Counsel
December 8, 2004
1021 N. Grand Ave. B
P.O. Box 19276
Springfield, Illinois 62794-9276
12
STATE OF ILLINOIS
)
)SS.
COUNTY OF SANGAMON
)
•
.
PROOF OF SERVICE
I, the undersigned, on oath state that I have served the attached Post-Hearing Comments
ofthe Illinois EnvirOnmental Protection Agency, upon the person to whom it is directed, by
placing it in an envelope addressed to:
• TO:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph Street, Suite 11-500
Chicago, Illinois 60601
•
SEE ATTACHED SERVICE LIST
and mailing it by First Class Mail from Springfield, Illinois on December 8, 2004, with sufficient
postage affixed.
/?,~,..,/ .~
SUBSCRIBBD AND SWORN TO BEFORE ME
this 8th day ofDecember, 2004
OFFICIAL SEAL
X
(~~1tar~Pub~
~
THIS FILING IS SUBMITTED ON RECYCLED PAPER
R 04-21 SERVICE LIST
Roy M. Harsch
Sasha M. Engle
Gardner Carton & Douglas
191 N. Wacker Drive, Suite 3700
Chicago, Illinois 60606-1698
Albert F. Ettinger
Environmental Law & Policy Center
35 East Wacker Drive, Suite 1300
Chicago, Illinois 60601
Matthew J. Dunn
Office ofthe Attorney General
‘Environmental Bureau
188 West Randolph, 20th Floor
Chicago, Illinois 60601
Amy Antoniolli
Illinois Pollution Control Board
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
Claire A. Manning
Posegate & Denes
111 N. Sixth Street
Springfield, Illinois 62701
Richard Lanyon
Metropolitan Water Reclamation District
100 East Erie Street
Chicago, Illinois 60611
Abdul Khalique
Metropolitan Water Reclamation District
Of Greater Chicago
6001 W. Pershing Road
Cicero, Illinois 60804
Dennis L. Duffield
City ofJoliet
Department ofPublic Works & Utilities
921 E. Washington Street
Joliet, illinois 60431
Stanley Yonkauski
Illinois Department ofNatural Resources
One Natural Resources Way
Springfield, Illinois 62702-1271
Joel C. Sternstein
Office ofthe Attorney General
Environmental Bureau
188 West Randolph, 20th Floor
Chicago, Illinois 60601
William Seith
Total Environmental Solutions
631 E. Butterfield Road, Suite 315
Lombard, Illinois 60148
John McMahon
Wilkie & McMahon
S East Main Street
Champaign, Illinois 61820
Lisa Frede
CICI
2250 E. Devon Avenue, Suite 239
Des Plaines, Illinois 60018
Jeffrey C. Fort
Letissa Carver Reid
Sonnenschein Nath & Rosenthal
8000 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606-6404
