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ILLINOIS POLLUTION CONTROL BOARD

February 16, 2006

Today the Board adopts the proposed rule for final notice pursuant to the Illinois Administrative Procedure Act (IAPA) (5 ILCS 100/5-5 et seq. (2004)). The adopted rule is unchanged from the rule proposed for second notice.

The Board’s authority in rulemaking proceedings stems from Section 5(b) of the Environmental Protection Act (Act) (415 ILCS 5/5 (2004)), which provides that the Board “shall determine, define and implement the environmental control standards applicable in the State of Illinois and may adopt rules and regulations in accordance with Title VII of the Act.” 415 ILCS 5/5(b) (2004). Title VII of the Act sets forth the statutory parameters for rulemaking by the Board. 415 ILCS 5/26-29 (2004). The Board may adopt a rule after hearing and determination of the economic reasonableness and technical feasibility of the rule. See 415 ILCS 5/27 (2004). The Board’s decision is based on the record before the Board including all testimony and comments filed with the Board. 35 Ill. Adm. Code 102.418.

OVERVIEW OF THE PROPOSED RADIUM WATER QUALITY STANDARD FOR FINAL NOTICE

Today the Board adopts for final notice the general use water quality standard for combined radium 226 and 228 that was adopted for second-notice review by the Joint Committee on Administrative Rules (JCAR) on December 15, 2005. The Board retains the standard of 3.75 pCi/L combined radium 226 and 228, but sets the standard as an annual average value, rather than an instantaneous maximum standard. This standard, applies to all general use waters of the State, including stream segments that receive discharge from POTWs, as well as the Lake Michigan Basin. The Board also adopts a 5pCi/L combined radium 226 and 228 standard for Public and Food Processing Water Supplies as an instantaneous maximum standard for public and food processing water supply intakes.

BACKGROUND

On January 13, 2004, the Environmental Protection Agency (Agency) filed a proposal to amend Part 302 of the Board’s water quality standards. ¹ The Agency proposed to change the general use and Lake Michigan water quality standards for radium from 1 pCi/L radium 226 to 5 pCi/L combined radium 226 and 228 and apply the proposed standards specifically to surface waters used for public and food processing water supplies. According to the Agency, these changes would make the radium water quality standards consistent with the federal finished water maximum contaminant level (MCL) and ensure the protection of surface water intakes for raw drinking water in the State. The Agency argued the proposed changes would also relieve a regulatory burden for many existing POTWs that receive, treat, and discharge wastewater from public water supplies that remove radium from high radium groundwater.

 The Board accepted this proposal for hearing on January 22, 2004. The Board has held five days of 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.

On July 8, 2004, the Board adopted the Agency’s proposal for publication of first notice in the Illinois Register, but noted by hearing officer order that the Board would hold a third hearing. First notice was published in the Illinois Register on August 6, 2004. 28 Ill. Reg. 32, pg. 10887, eff. Aug. 6, 2004. First-notice publication in the Illinois Register began a public comment period for interested persons to file comments with the Board. The Board held a third hearing on August 25, 2004, in Springfield. The Board gave notice of hearings a fourth time and they continued on October 21 and 22, 2004, in Chicago.

On April 7, 2005, the Board adopted the proposal, with modifications, for publication of the 2005 first notice in the Illinois Register. The 2005 first notice was published in the Illinois Register on April 11, 2005. 29 Ill. Reg. 17, pg. 5782, eff. Apr. 11, 2005. Second first-notice publication began another 45-day public comment period. On May 13, 2005, the City of Joliet (Joliet) moved the Board to extend the public comment period through August 15, 2005. The Board granted the motion and extended the comment period as requested.

The Board received 13 additional public comments after first notice publication. On December 15, 2005, the Board proceeded to second first notice with a rule that differed from the Board’s proposal adopted for first notice in 2004. Revisions to Radium Water Quality Standards: Proposed New 35 Ill. Adm. Code 302.307 and Amendments to 35 Ill. Adm. Code 302.207 and 302.525, R04-21 (Dec. 15, 2005). On December 29, 2005, the Board received notice that JCAR accepted the second notice in this rulemaking on December 27, 2005. JCAR considered the rule at the January 18, 2006 JCAR meeting, and subsequently issued a certification of no objection to the rule.

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SUMMARY OF FIRST-NOTICE PROPOSAL

At first notice in 2004, the Board adopted the original proposal filed by the Agency. As discussed above, the Agency’s proposal was to eliminate any general use water quality standard and instead adopt a standard of 5 pCi/L combined radium 226 and 228 that would apply specifically to public and food processing water supply intakes. The Board accepted this proposal for hearing.

At second first notice in 2005, the Board proposed a general use water quality standard of 3.75 picocuries per liter (pCi/L) radium 226 and 228 combined (combined radium) applicable to all general use waters of the State. In addition, the Board proposed a general use water quality standard of 30 pCi/L combined radium applicable to waters receiving discharge from publicly owned treatment works (POTWs). The 30 pCi/L standard applied from the point of discharge to one mile downstream of the discharge outfall and was incorporated as a new Section 302.207(d).

DISCUSSION OF SECOND-NOTICE PROPOSAL AND ADOPTED AMENDMENTS

The proposal that the Board adopts for final notice is unchanged from that adopted at second notice. Therefore, in this section the Board discusses the second-notice proposal together with the adopted amendments. At second notice, the Board analyzed the participants’ recommendations and other issues raised in public comments. The Board determined, as it did in adopting the proposal for second first notice in 2005, that a general use water quality standard for radium 226 and 228 combined must be retained in order to protect human health and the environment, including aquatic life and riparian mammals.

At second-notice, the Board expressed that limit as an average measured over the length of a year. Under the proposed standard, while the concentration of radium 226 and 228 combined may be higher than 3.75 pCi/L at times due to environmental conditions, the water body will still meet the standard as long as the concentration averaged over the period of a year remains at or below 3.75 pCi/L. Also at second notice, the Board eliminated the 30 pCi/L water quality standard applicable up to one-mile downstream of POTW discharges.

The Board’s second-notice proposal did not incorporate the Agency’s suggestion of allowing for mixing even if the stream has a zero 7Q10 flow. The Agency did not support this new proposal with evidence contained in the record, but stated only that allowing mixing zones in dischargers’ permits would provide added relief for POTWs.

 Also at second notice, the Board adopted a Public and Food Processing Water Supply standard of 5 pCi/L combined radium 226 and 228 to ensure that public water supplies meet the Federal drinking water maximum contaminant level for radium. Since the proposed general use standard is based on a long-term average concentration, the Board found that an instantaneous surface water intake standard would ensure protection from upstream discharges that could cause a Public and Food Processing Water Supply to exceed 5 pCi/L. The Board adopts the standard proposed for second notice unchanged for final notice.

The Board finds the rule proposed for final adoption will be more technically feasible and economically reasonable than the current radium water quality standard since it increases the standard for radium 226 and 228 combined. 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 rule. Nobody testified or commented about DCEO’s decision not to perform an economic impact study on this rulemaking. As found at second notice, the Board finds the proposal is both technically feasible and economically reasonable.

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CONCLUSION

To protect all designated uses of Illinois waters, the Board adopts a 3.75 pCi/L combined radium 226 and 228 standard applicable to general use waters and the Lake Michigan Basin. Compliance with the standard is determined by the annual average of combined radium concentrations. The proposal applies a 5.0 pCi/L combined radium 226 and 228 standard to Public and Food Processing Water Supply intakes as an instantaneous standard. The Board finds the proposal adopted today is economically reasonable and technically feasible. The Board adopts this proposal for final notice pursuant to the IAPA 95 ILCS 100/5-5 et seq. (2004).

ORDER

 The Board directs the Clerk to cause the filing of the following rule with the Secretary of State for publication as an adopted rule in the Illinois Register:

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

302.207  Radium 226 and 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 must 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 February 16, 2006, by a vote of 4-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

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