BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
REVISIONS TO
RADIUM WATER
)
QUALITY STANDARDS: PROPOSED
)
NEW 35 ILL. ADM. CODE 302.307
)
R2004-021
AND AMENDMENTS TO 35 ILL. ADM.
)
Rulemaking
-
Water
CODE3O2.207AND302.525
)
)
CLERK’S OFHCE
AUQ 152005
NOTICE OF FILING
pollutionSTATE OFcontrolILLINOISBoard
PLEASE TAKE NOTICE that the Environmental Law &
Policy
Center and Sierra Club
have filed the attached COMMENTS OF THE SIERRA CLUB AND THE ENVIRONMENTAL
LAW AND POLICY CENTER ON THE PROPOSED RULE.
gL
~
Albert F. Ettinger (Reg. No. 3125045)
Counsel for Environmental Law & Policy
Center and Sierra Club
DATED: August 15, 2005
Environmental Law & Policy Center
35 East Wacker Drive, Suite 1300
Chicago, IL 60601
312-795-3707
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
-
CODE 302.207 AND 302.525
)
)
AU5152005
STATE OF ILLINOIS
Pollution Control Board
COMMENTS
OF
THE SIERRA
CLUB
AND
THE ENVIRONMENTAL
LAW
AND
POLICY
CENTER ON THE PROPOSED RULE
The Environmental Law and Policy Center and the Sierra Club support the Board’s Proposed
Rule in its Second First Notice ofApril 7, 2005 to adopt a 3.75 pCi/L standard for the state.
However, the proposed exception to the standard to allow a combined radium standard of 30
pCi/L in a one mile mixing zone in stream segments that receive discharge from publicly owned
treatment works (“POTWs”) receiving wastewater discharge from public drinking water supplies
using groundwater with a high radium concentration should not be adopted. Economic
considerations cannot properly be taken into account in setting water quality standards except in
very limited circumstances not applicable to this proceeding. Moreover, even if economic factors
could properly be taken into account in this proceeding, there has been no showing that allowing
an exception to the general standard is necessary to avoid imposition of an unusually costly
regulatory burden. Indeed, data from the City of Joliet show that there is no great regulatory
burden that would justify an exception from protective radium standards.
Further, we also again raise concerns that the Board address the issue ofthe buildup ofradium in
stream sediments and propose steps to be taken.
I.
The Board’s proposal to
adopt a 3.75 pCi/L water quality standard will protect aquatic
life from soluble forms of radium.
We support the Board’s order to retain a water quality standard for radium for Illinois’general use
waters and the Lake Michigan basin designed be protective of both human health and the
environment. The Board’s proposed standard of 3.75 pCi/L for combined radium 226 and 228 or
less would meet the biota dose limit of 0.1 rad/day for riparian animals. This standard is
necessary to protect riparian animals found in Illinois, like the river otter (only recently removed
from the list ofIllinois Endangered and Threatened species) and raccoons.
II. The proposal for a different standard for stream segments downstream of POTWs
should not be adopted.
A. Economic considerations may not properly be taken into account in developing Illinois
numeric standards applicable to general use waters.
Water quality standards have three elements; designation ofuses of water bodies, “criteria” to
protect those uses and an antidegradation policy. 40 CFR 1 3 1.6.’ For example, a particular river
might have the designated uses of aquatic life, swimming and fishing. State “criteria” or
“standards” (numeric or narrative) applicable to that water must be protective of those uses. 40
CFR 131.11(a); Natural Resources Defense Council v. U.S. EPA, 16 F.3d 1395, 1401
(4tI~
Cir.
1993) (state criteria must be “scientifically defensible” and “protective ofdesignated uses”).
In Illinois almost all waters are designated as “general use” and, thus, are to be protected for
aquatic life, wildlife, agricultural use and primary contact. 35 III. Adm. Code 302.202. Although
Illinois’ “general use” category is rather bulky, it is appropriate that almost all Illinois waters are
to he protected for aquatic life, wildlife, fishing and swimming. The Clean Water Act establishes
a presumption that all ofthe nation’s waters are or are to become “fishable and swimmable.” See
33 U.S.C. §1251(a)(2); Kansas Natural Resource Council, Inc. v. \Vhitman, 255 F. Supp. 1208,
1209 (D. Kan. 2003).
The only way in which the applicable federal regulations allow consideration of economic factors
in setting water quality standards relates to designation of uses for particular water bodies for
which it is sought to rebut the presumption that all water bodies are to be fishable and
swimmable. Under 40 C.F.R. 131.10 (g)(6), a state may remove a designated use (that is not an
existing use) if it is shown that pollution controls needed to protect that use would “result in
substantial and widespread economic and social impact.”
On the other hand, economic factors may not be taken into account in setting the numeric
standards that are protective ofuses. Water quality criteria that protect the designated uses “must
be based on a sound scientific rationale” and must protect the “most sensitive use.” 40 C.F.R.
131.11(a); see also, People ofthe State of Illinois v. IPCB, 103 III. 2d 441, 469 N.E. 2d 1102,
1108 (Ill. 1984). Economic factors are irrelevant to setting such criteria. Mississippi Commission
on Natural Resources v. Costle, 625 F.2d 1269, 1277
(5th
Cir. 1980)
There is an unfortunate ambiguity in water quality standards terminology in that the term
“criteria” is used in the regulations, literature and caselaw both to describe the recommended
numeric values that U.S. EPA develops as guidance for the states in developing standards to
protect particular uses and to the portion of the legally binding state standards that specilS’ those
values. This proceeding involves developing the state “criteria” or standard for radium. Part of
the reason that it has been so difficult to do this is that U.S. EPA has not developed any
recommended “criteria” document to assist Illinois in developing a state standard.
2
Many states break down their use categories and apply different criteria to those categories. For
example, many states distinguish warm water fisheries and cold water fisheries.
2
In short, if there were evidence in the record in this proceeding that adoption ofprotective radium
standards would impose overwhelming costs on some disehargers, that information would not be
important here.3 But there has been no such evidence.
B. There is no evidence that it would be costly to comply with the 3.75 pCi/L standard anywhere.
The hearing record does not contain any testimony showing that complying with the 3.75 pCi/L
standard would be costly for any discharger and contains some testimony that it would not be.
New post-hearing data suggest that the Board’s proposal to establish a 30 pCi/L combined
radium 226 and 228 limit in a mixing zone up to one mile downstream from the point of POTW
discharge to provide relief for POTWs would not save anyone much money. On May 13, 2005
the City of Joliet filed a motion for the extension of the public comment period on the Board’s
Proposed Rule and Second First Notice. They needed the time to perform radium sampling on
influent and effluent samples from various communities that utilize groundwater containing
radium in excess of3.75 pCi/L and to do some in-stream sampling. We have been provided a
copy of their results. It is informative to note that the highest level ofcombined radium 226 and
228 found in POTW effluent was 7.4 pCi/L from Community A. In-stream levels ofcombined
radium were less than
1.5
pCi/L at all locations tested. Not knowing the nature ofthe water
bodies to which communities A & B discharge and with the uncertainty in the Monmouth data,
we cannot comment on those dischargers. For the rest ofthe discharges tested, it appears that the
communities would he able to meet the 3.75 pCi/L standard with a standard mixing zone, if
needed. These new data suggest there is not even a substantial economic reason for the special 30
pCi/L mixing zone included in the Board’s Proposed Rule.
III.The Board should require sediment monitoring downstream of disehargers that require
a mixing zone.
We support the Board’s finding that the DOE technical standard provides the necessary guidance
to establish a water quality standard for radium 226 and 228 applicable to general use waters and
the Lake Michigan basin. However, we note the proposed standard of3.75 pCi/L for combined
radium 226 and 228 would meet the biota dose limit of 0.1 rad/day for riparian animals only if
the levels of combined radium in sediment remain below 190 pCi/g. (See Exhibit 9 ofthe
December 8, 2004 posthearing comments ofthe Environmental Law and Policy Center and the
Sierra Club.) Therefore we recommend that the Board direct the Agency to require regular
monitoring ofthe stream sediment in any POTW permit for which they grant a mixing zone for
radium. Regular monitoring of the sediment at a point outside ofthe prescribed mixing zone
would ensure that radium particles were not building up in the sediment so that the biota dose
limit of 0.1 rad/day was exceeded.
~It might be relevant to a proceeding relating to re-designation ofthe use ofa particular water
body pursuant to a use attainability analysis conducted under 40 CFR 131 .10(g).
3
IV. The ELPC and Sierra Club do not object to the Board considering the suggestion by
U.S. EPA to set the radium standard as an average value over a period of time.
In Public Comment #41, Linda Hoist, Chiefof the Water Quality Branch at USEPA Region V,
suggests that it may be better to “express the standard as an average value over some period of
time to reflect the concern over longer-term exposure, rather than a value that can never be
exceeded.” If the Board chooses to do this, then Ms. Hoist indicates that the Board must also
“establish a S pCi/L Public and Food Processing Water Supply standard as an instantaneous
maximum standard for public water supply intakes.”
ELPC and the Sierra Club do not object to U.S. EPA’s suggestion. We agree that a radium water
quality standard that is an average value over some period oftime addresses the goal to not
exceed the biota dose limit of 0.1 rad/day for riparian animals. However, we also believe that if
such an approach is taken, it is even more imperative that any discharger granted a mixing zone
be required to periodically monitor the in-stream sediment outside ofthat zone.
CONCLUSION
The Board should adopt the 3.75 pCi/L standard. The exception allowing a weaker standard
downstream of certain POTW discharges should be deleted. Action is needed to prevent build-up
of radioactive sediments in Illinois waters receiving radium laden discharges.
Albert Ettinger
ELPC
-
Senior Staff Attorney
Illinois Chapter Sierra Club
-
Water Issues Coordinator
Cynthia Skrukrud Ph.D.
Illinois Chapter Sierra Club
-
Clean Water Advocate
4
CERTIFICATE OF SERVICE
I, Albert F. Ettinger, certify that on August
15,
2005, I filed the attached COMMENTS OF THE
SIERRA CLUB AND TUE ENVIRONMENTAL LAW AND POLICY CENTER ON THE
PROPOSED RULE. An original and 9 copies was filed, on recycled paper, with the Illinois
Pollution Control Board, James R. Thompson Center, 100 West Randolph, Suite 11-500,
Chicago, IL 60601, and copies were served via United States Mail to those individuals on the
included service list.
DATED: August iS, 2005
Environmental Law & Policy Center
35 East Wacker Drive, Suite 1300
Chicago, IL 60601
312-795-3707
Albert F. Ettinger (Reg. No. 3125045)
Counsel for Environmental Law & Policy
Center and Sierra Club
SERVICE LIST
Deborah J. Williams
Stefanie N. Diers
Illinois Environmental Protection Agency
1021 N. Grand Avenue East
P0 Box 19276
Springfield, IL 62794
Roy M. Harsch
Sasha M. Engle
Gardner Carton & Douglas
191 N. Wacker Drive, Suite 3700
Chicago, IL 60606
Jeffrey C. Fort
Letissa Carver Reid
Sonnenschcin Nath & Rosenthal
8000 Sears Tower
233 5. Wacker Drive
Chicago, IL 60606
John McMahon
Wilkie & McMahon
I East Main Street, #214
Champaign, IL 61820
Joel J. Sternstein
Office ofthe Attorney General Petitioner
188 W. Randolph, 20th Floor
Chicago, IL 60601
Matthew J. Dunn, Division Chief
Office ofthe Attorney General Petitioner
188 W. Randolph, 20~”Floor
Chicago, IL 60601
Dorothy M. Gunn, Clerk ofthe Board
Illinois Pollution Control Board
100W. Randolph St, Suite 11-500
Chicago, IL 60601
Amy Antoniolli, Hearing Officer
Illinois Pollution Control Board
100W. Randolph St, Suite 11-500
Chicago, IL 60601
Claire A. Manning
Posegate & Denes
111 N. Sixth St.
Springfield, IL 62701
Stanley Yonkauski, Acting General Counsel
Illinois DNR
One Natural Resources Way
Springfield, IL 62702
Lisa Frede
CICI
2250 F. Devon Ave., Suite 239
Des Plaines, IL 60018
William Seith
Total Environmental Solutions
631 E. Butterfield Rd, Suite 315
Lombard, IL 60148
Abdul Kahlique
Metropolitan Reclamation District
6001 W. Pershing Road
Cicero, IL 60804
Richard Lanyon
Metropolitan Reclamation District
6001 W. Pershing Road
Cicero, IL 60804
Dennis Duffield
Director ofPublic Works and Utilities
City ofJoliet
921 E. Washington Street
Joliet, IL 60431