4

first notice, particularly regarding the economic reasonableness of the proposal to delete a special

sulfate water quality standard for coal mines.

SUMMARY OF FIRST-NOTICE COMMENTS

The Board received a total of four public comments after first notice in this proceeding.

The following paragraphs will summarize the comments beginning with public comment number

nine and proceeding in order.

IERG PC 9

IERG’s PC 9 responded to the Board’s first-notice request for additional comments on

economic reasonableness. IERG commented that Section 27(a) of the Act, 415 ILCS 5/27(a)

(2006), “clearly places the burden on Illinois EPA, as the proponent of the rulemaking, to

provide a full economic impact analysis to the Board.” PC 9 at 2-3. IERG conceded that IEPA

had “adequately developed the record to support [IEPA’s] position that the economics of

livestock operations would not be adversely affected by a 2,000 milligrams per liter sulfate

standard.”

Id

. at 3. However, IERG opined that IEPA “did not apply the same degree of

diligence in considering the economic impact for industrial dischargers.”

Id.

at 4.

IERG’s comment stated that “[n]o similar economic impact analysis had been conducted

to determine the impact of the Illinois EPA’s proposal to establish a range of sulfate

concentrations from 500 mg/L in soft waters with low chloride levels to over 2,500 mg/L in hard

waters of average chloride concentrations for industrial dischargers.” PC 9 at 4. IERG contends

that IEPA “fail[ed] to cite any literature review or expert consultation supporting the economic

reasonableness for this range of sulfate limits” for industrial dischargers, including mining

operations.

Id.

IERG disputed IEPA’s contention that the proposed rule would decrease petitions for

regulatory relief from the sulfate standard. IERG opined that any cost savings from the

elimination of “a small number of petitions for regulatory relief . . . would likely be offset by

costs incurred by affected sources’ inability to comply with the proposed sulfate limits, as is the

case with coal mine operations.” PC 9 at 5. According to IERG, IEPA explained neither the

nature nor the cost of additional controls that existing mines may require to meet general water

quality standard-based permit limits.

Id.

IERG concluded by asserting that IEPA “has not provided any economic analysis to

support its claim that the proposed rule does not, in fact, negatively impact coal mine related

activities.” PC 9 at 6. IERG suggested that IEPA did not meet its “statutory obligation, as the

proponent of the proposal, to provide an economic analysis of the impact of the rule” because

IEPA “merely provided three paragraphs in its Statement of Reasons to justify the economic

reasonableness of the proposed rule” instead of including an IEPA “Agency Analysis of

Economic and Budgetary Effects of Proposed Rule.”

Id.

at 6-7

.

IEPA PC 10

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5

IEPA commented on two aspects of the Board’s proposed first-notice rule: water quality

standards for sulfate (Section 302.203(h)(3)(C)), and mixing zones (Section 302.102(b)(8)). PC

10.

Section 302.203(h)(3)(C)

IEPA explained that the Board’s proposed first-notice rule had added subsection (C) to

Section 302.203(h)(3) of IEPA’s proposed rule; the Board’s proposed subsection (C) language

provided that the sulfate standard would be “determined on a case-by-case basis in conjunction

with an NPDES [National Pollutant Discharge Elimination System] permitting process” for

chloride and hardness ranges not specified in IEPA’s proposed rule. PC 10 at 2-3. IEPA noted

that Board’s proposed language in Section 302.203(h)(3)(C) had been added in response to the

concerns of the Environmental Groups,

id.

at 2, and that the language effectively specified “a

sulfate standard for all conditions of chloride concentrations, including those exceeding the water

quality standard of 500 mg/L,”

id

. at 3. IEPA stated that IEPA had consulted the United States

Environmental Protection Agency’s Region 5 (USEPA) regarding the Board’s proposed

language, and that “the USEPA concluded that the proposed Section 302.203(h)(3)(C) is ‘not

consistent with the Clean Water Act (CWA) and Federal regulations . . . [because the proposed

language] effectively changes the Federally approved water quality criterion for chlorides

without [US]EPA review and approval.’”

Id.

, quoting Attachment I (USEPA letter).

IEPA requested that “the Board delete the language proposed in Section

302.203(h)(3)(C)” because IEPA “agree[d] with USEPA’s rationale that a sulfate criterion

determined for a waterbody in which chloride concentration[s] are above the general use

standard of 500 mg/L must either show that the calculated sulfate standard is protective of the

designated general use, or that the designated use is not an attainable use consistent with 40 CFR

131.10(g).” PC 10 at 3-4.

IEPA stated that IEPA had “never seen the practical need for a provision under paragraph

C . . . . [IEPA] is not aware of an instance where a permit limit for sulfate was necessary and the

in-stream chloride concentration was greater than 500 mg/L.” PC 10 at 4. According to IEPA,

“waters with chloride concentrations above 500 mg/L are relatively rare” and occur primarily “in

urban watersheds where streets are salted for traffic safety” during the winter.

Id.

IEPA opined

that “instead of calculating a sulfate criterion for a waterbody in which chloride concentrations

are above the general use standard of 500 mg/L, the protective approach is to bring the

waterbody back into compliance with the chloride water standard.”

Id.

Specifically, IEPA’s

monitoring programs identify waterbodies impaired by high chloride concentrations, which “are

listed in the biennial 303(d) report.”

Id.

Listing of impaired waters in the 303(d) report “starts

the TMDL [total maximum daily load] process, the goal of which is to find the sources causing

the problem” in order to “allocate the chloride loadings such that the waterbody is brought back

into the compliance with the water quality standard.”

Id.

According to IEPA, “[t]he correct

response is to rectify the condition.”

Id.

at 5. PC 10 Attachment I was a letter dated November

29, 2007 from USEPA’s Region 5 Chief of the Water Quality Branch. USEPA letter. The letter

stated that “Illinois’ approved water quality standards specify that the concentration of chlorides

in general use waters must be equal to or less than 500 mg/L in order to protect the uses of

general use waters.”

Id.

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6

Section 302.102(b)(8)

IEPA noted that the Board’s proposed first-notice rule had amended Section

302.102(b)(8) “to provide that in a stream where the dilution ratio is less than 3:1, the volume

used for mixing purposes must not be more than 50% of the stream flow”, except in “streams

that have a zero flow for at least seven consecutive days occurring on average in nine years out

of ten.” PC 10 at 5. IEPA stated that the Board amended this section in response to the

Environmental Groups’ “request to codify a practice by [IEPA] in drafting NPDES permits.”

Id.

However, IEPA stated that sometimes more than 50% of the stream flow is used for mixing, but

that IEPA decides whether to allow that volume of mixing on a case-by-case basis.

Id.

IEPA

noted that “the Board’s proposed language does not allow the use [of] more than 50% of the

stream flow in any case[,]” despite IEPA’s assertion that “[n]either [IEPA], nor any stakeholder

testified that the designated uses are not fully protected when more than 50% of the stream flow

is used for mixing purposes.”

Id.

IEPA “contended that restricting the use of stream flow above 50% is arbitrary and

unnecessary” and that IEPA would address the Environmental Groups’ concern by determining

the adequate zone of passage pursuant to Section 302.102(b)(6) on a case-by-case basis. PC 10

at 6. IEPA noted that under the Act, IEPA “always has the obligation to ensure that the

designated uses are fully protected.”

Id.

at 5.

IEPA concluded by recommending that no modification be made to the existing Section

302.102(b)(8) language because the amended language proposed in the Board’s first notice

would “likely result in unnecessary compliance issues, even though there may not be

environmental issues at stake.” PC 10 at 6. According to IEPA, any changes to the Board rules

should be based on the relevant scientific information and a well-developed record; “if the Board

believes that this is a deficiency that needs to be addressed, then [IEPA] recommends that the

Board either address this issue in another rulemaking or split the docket for further consideration

on this issue.”

Id.

IEPA PC 11

IEPA addressed IERG’s concerns regarding the economic reasonableness of the proposed

regulations in PC 11. Specifically, IEPA discussed best management practices, the impact of the

proposed rulemaking on coal mines, and site-specific rulemakings. PC 11.

IEPA noted that best management practices (BMPs), as required by 35 Ill. Adm. Code

406.204-406.208 of the Board’s regulations, are the “ongoing and routine control measures” that

IEPA had referred to in IEPA’s regulatory proposal. PC 11 at 2-3 (citing Reasons at 13).

Existing industrial dischargers such as mining operations may require the application of BMPs to

meet water quality standards and applicable permit limits.

Id

. at 3. IEPA responded to IERG’s

comments by explaining that “[f]or most dischargers, the new sulfate and total dissolved solids

standards will allow attainment of water quality standards without the implementation of

additional management practices or process alternatives.”

Id.

(citing Reasons at 13). According

to IEPA, “only a small number of existing mines . . . would need to employ additional controls

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7

such as best management practices” to meet the proposed sulfate water quality standard, because

a majority of point sources could meet the proposed standard either (1) without making any

process change, or (2) by employing industry-based BMPs and other routine control measures.

Id.

IEPA maintains that “in most cases, if not all cases, mines have already applied some level

of BMPs” because BMPs are a requirement under the Board’s existing regulations.

Id.

According to IEPA, “the net impact of the proposed rulemaking is the proposed

rulemaking is that it relaxes the existing standards of sulfate and TDS for point sources . . . .

[M]ines cannot be said to be in increased jeopardy because of the water quality standards portion

of the rulemaking.” PC 11 at 4. IEPA explained that contrary to IERG’s assertion, IEPA “has

neither stated nor implied that all coal mines would have trouble in complying with the proposed

standard or would be adversely affected by the proposed changes.”

Id.

IEPA clarified that

although most mine discharges cannot meet “

existing

sulfate and chloride (hence total dissolved

solids (‘TDS’)) standards[,]” IEPA “has yet to find a situation where the sulfate limit based on

the

proposed

standard cannot be met by the mine.”

Id.

(emphasis added). IEPA asserted that “it

makes little sense to argue that mine dischargers that were struggling to meet the strict existing

sulfate standard would incur additional costs to comply with a less stringent standard.”

Id.

IEPA noted that the proposed rulemaking will reduce the number of mine dischargers

that would need to seek site-specific rulemakings to meet the existing standards. PC 11 at 4.

IEPA states that IEPA was justified to conclude that the proposed rule would reduce petitions for

site-specific water quality standards for TDS and sulfate (thereby saving costs for dischargers,

IEPA, and the Board) because IEPA identified seven dischargers that would no longer require

site-specific rulemakings under the proposed rule.

Id.

at 4-5. IEPA concluded by indicating that

IERG “does not cite to any specific evidence to support [IERG’s] statements of economic

hardship” and that IEPA’s reasoning was based on extensive experience dealing with sulfate

concentrations in streams and in discharge effluents.

Id.

at 5.

IERG PC 12

IERG noted that IERG’s first-notice comments (PC 9) addressed IEPA’s “obligation

pursuant to Section 27 of the Illinois Environmental Protection Act, 415 ILCS 5/27, to provide

an economic analysis to the Board in order for the Board to fully take into consideration the

economic impact of Illinois EPA’s proposal.” PC 12 at 2. According to IERG, IEPA’s PC 11

Response to IERG’s Comments “did not address [IEPA’s] obligation to provide an analysis of

the economic impact of the proposed rule for the Board’s consideration” and IEPA “still appears

neither to have addressed the deficiency of its proposal in this respect nor provided any

explanation for not doing so.”

Id

.

DISCUSSION

The Board will discuss the three areas of concern raised in first-notice comments: (1) the

economic reasonableness of the proposed sulfate standards on mining operations; (2) the

applicable sulfate standards for general use waters where chloride levels are above 500 mg/L and

hardness levels are 500 mg/L or lower; and (3) the Board’s proposed language regarding mixing

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8

zones in streams where the dilution ratio is less than 3:1. The Board will also discuss the reasons

for proceeding to a proposed second notice.

Economic Reasonableness of Proposed Sulfate Standards on Mining Operations

The Board agrees with IERG that Section 27 of the Act obligates IEPA to provide an

economic analysis to the Board. PC 12 at 2. Specifically, the Act requires a person filing a

proposed rule with the Board to “describe, to the extent reasonably practicable, the universe of

affected sources and facilities and the economic impact of the proposed rule.” 415 ILCS 5/27(a)

(2006). The Board finds that IEPA has described affected sources by identifying “19 active coal

mines in Illinois at the present time[,]” PC 2 at 2, and that IEPA has described the economic

reasonableness of the proposed sulfate standards. Specifically, IEPA analyzed point sources

(including mining operations) within three categories, PC 11 at 3, concluding that only a small

number of existing mines would need to employ additional controls such as best management

practices. The Board agrees with IEPA that mining operations are already required to utilize best

management practices (Good Mining Practices and other controls) under 35 Ill. Adm. Code

406.204-406.208 of the Board’s regulations. Additionally, IEPA’s Statement of Reasons stated

that for most dischargers, the new sulfate standards “will allow attainment of water quality

standards without the implementation of additional management practices or process

alternatives[,]” and that a “significant majority of discharges would meet the applicable permit

limits with the help of ongoing and routine control measures.” Reasons at 13.

Regarding the few mines that would need additional controls to comply with the

proposed sulfate standards, the Board believes that the proposed rules will have a smaller

economic impact than compliance with existing sulfate and TDS standards.

The Illinois Coal Association (ICA) submitted as Hearing Exhibit 2 a technical report,

dated May 1, 2004 through April 30, 2005, on the economic impact for coal mines. No other

group has provided specific cost estimates. ICA’s report estimated that the total annualized cost

(capital and operating) for all coal mines in Illinois for compliance with a 2000 mg/L sulfate

standard would be $730 million over a ten-year period. Exhibit 2 at 11. For compliance with a

500 mg/L standard, the report estimated a total annualized cost of $7.5 billion over a ten-year

period.

Id.

The Board carefully reviewed ICA’s report and the rest of the record, and found that the

record supported proceeding to first notice with the proposed sulfate standard as amended by the

Board. The Board concluded that ICA’s economic analysis was based on an assumption that

additional treatment would be required for coal mines to achieve compliance, but that the

Board’s proposed changes to mixing provisions would allow mixing as a means of compliance,

thus significantly reducing the proposed rules’ economic impact upon industrial dischargers and

coal mines.

See

Triennial Review of Sulfate and Total Dissolved Solids Water Quality

Standards: Proposed Amendments to 35 Ill. Adm. Code 302.102(b)(6), 302.102(b)(8),

302.102(b)(10), 302.208(g), 309.103(c)(3), 405.109(b)(2)(A), 405.109(b)(2)(B), 406.100(d);

Repealer of 35 Ill. Adm. Code 406.203 and Part 407; and Proposed New 35 Ill. Adm. Code

302.206(h) (Triennial Review), R07-9, slip op. at 30-31 (Sept. 20, 2007) (first notice).

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9

The Board notes that, in accordance with Section 27(b) of the Act (415 ILCS 5/27(b)

(2006)), the Board conducted a public hearing on the economic impact of the proposed rules and

notified the public at least 20 days before the hearing. 415 ILCS 5/27(b)(2) (2006). The Board

requested that the Department of Commerce and Economic Opportunity conduct a study of the

economic impact of the proposed rules.

Id.

at (b)(1).

No additional hearings were requested, and no participant besides the ICA has submitted

any additional economic data regarding the economic reasonableness of the proposed sulfate

standard. The Board agrees with IEPA that “IERG has not expanded on why [IEPA]’s

discussion regarding the economic impact of the proposed rule is not sufficient[.]” Response to

Motion at 3. The Board also agrees that IERG “does not cite to any specific evidence to support

its statements of economic hardship.”

Id.

at 5. The Board has again carefully reviewed the

record and considered all evidence in the record regarding the economic reasonableness of the

proposed sulfate standards on mining operations. The Board finds that the record supports

proceeding to proposed second notice with the sulfate standards as proposed by IEPA.

General Use Water Quality Standards for Sulfate Where Chlorides are Above 500 mg/L

and Hardness is Less than or Equal to 500 mg/L

As previously detailed, IEPA’s PC 10 urged the Board to delete the Board’s proposed

language in Section 302.208(h)(3)(C). The Board’s proposed first-notice language indicated that

the sulfate standard for waters where chloride concentrations are above 500 mg/L and hardness is

500 mg/L or lower would be “determined on a case-by-case-basis in conjunction with an

applicable NPDES permitting process.” Triennial Review

, R07-9, slip op. at 25 (Sept. 20, 2007)

(first notice). IEPA disagreed with the Board’s proposed language, and PC 10 included a letter

from USEPA Region 5’s Chief of the Water Quality Branch, indicating that USEPA also

disagreed with the language proposed by the Board.

The Board has considered IEPA’s comment regarding the proposed language. The

Board’s intention was not to somehow intimate that violation of the chloride water quality

standard was acceptable. Rather the Board was attempting to codify the specific procedure IEPA

would follow when chlorides exceed 500 mg/L and hardness is less than or equal to 500 mg/L.

As the Environmental Groups indicated, IEPA’s proposal “d[id] not include a provision for

determining a sulfate standard when chlorides are above 500 mg/L and hardness is less than or

equal to 500 mg/L.” Triennial Review

, R07-9, slip op. at 24 (Sept. 20, 2007) (first notice).

Additionally, CITGO stated that it was unclear which sulfate standard IEPA would apply during

periods of elevated chlorides on general use waterways.

Id.

CITGO noted that it had identified

chloride levels above 500 mg/L at its intake along the secondary contact waters of the Chicago

Sanitary and Ship Canal, and opined that general use waters may also periodically experience

similarly elevated chloride levels.

Id.

At public hearing regarding IEPA’s proposal, IEPA indicated an intent to address

waterways with chloride concentrations greater than 500 mg/L on a case-by-case basis, perhaps

through permitting. Triennial Review, R07-9, slip op. at 24 (Sept. 20, 2007) (first-notice). The

Board responded to the Environmental Groups’ concern about the need for “an equation,

numeric standard, or procedure to establish sulfate standards for the entire range of chloride and

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10

hardness.”

Id.

The Board added its proposed rule language to Section 302.208(h)(3)(C) because

the Board found that a sulfate standard protective of aquatic life should be applied, even if the

chloride standard exceeds the general use water quality standards.

Id.

at 25.

The Board’s proposed first-notice rule language codified IEPA’s intent to address

through permitting sulfate levels where chlorides exceed 500 mg/L and hardness is 500 mg/L or

lower. Triennial Review, R07-9, slip op. at 25 (Sept. 20, 2007) (first-notice)

.

At first notice, the

Board noted that IEPA is bound by rules prohibiting degradation of the waters and water quality

standards when issuing NPDES permits, and therefore proposed rule language based on the

Board’s conclusion that IEPA could “utilize the equations and/or other rule provisions to insure

the quality of the water through the permit process.”

Id

. However, the Board has reviewed and

considered IEPA’s PC 10 and the attached USEPA letter regarding the Board’s proposed Section

302.208(h)(3)(C). USEPA noted that sulfate criterion must be approved by USEPA to be

effective, and that sulfate limits for discharges into waters where chloride levels exceed 500

mg/L should be determined in accordance with the site-specific procedures outlined within the

USEPA letter. PC 10.

The Board today amends Section 302.208(h)(3)(C) to establish a standard for sulfate

where chlorides exceed 500 mg/L and hardness is at or below 500 mg/L, according to Section

303(c) of the Clean Water Act and federal regulations at 40 C.F.R. 131.10(j)(2). Specifically, an

action to derive a sulfate criterion where ambient chloride levels exceed 500 mg/L requires IEPA

to submit to USEPA a “site-specific chloride criterion demonstrating that a chloride

concentration greater than 500 mg/L will protect the designated general use, or a use attainability

analysis showing that the designated general use is not [] attainable [] for the affected surface

water based on one or more of the six factors identified in the Federal regulations at 40 C.F.R.

131.10(g).” PC 10, Attachment I (USEPA letter).

The Board proposes to delete the Board’s proposed first-notice language for Section

302.208(h)(3)(C). The Board proposes that Section 302.208(h)(3)(C) should state that:

If the combination of hardness and chloride concentrations of existing waters are

not reflected above, the sulfate standard may be determined in a site-specific

rulemaking pursuant to Section 303(c) of the Federal Water Pollution Control Act

of 1972 (Clean Water Act), 33 USC 1313, and Federal Regulations at 40 C.F.R.

131.10(j)(2).

The Board invites public comment on this proposed language.

The Board’s Proposed Language Regarding Mixing Zones in Streams

Where the Dilution Ratio is Less Than 3:1

The Board’s first-notice proposed language for Section 302.102(b)(8) did not permit

mixing in more than 50% of a stream’s volume in any stream with a dilution ratio of less than

3:1. The Board had added this language in response to the Environmental Groups’ requests for a

zone of passage for aquatic life. IEPA suggested that IEPA be permitted to maintain flexibility

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11

for addressing other relevant water quality factors by determining an “adequate zone of passage

pursuant to Section 302.[102](b)(6) on a case-by-case-basis.” PC 10 at 6.

The Board proposed language at first notice to codify a policy followed by IEPA. The

Board appreciates IEPA’s desire to maintain flexibility. However, the Board believes that the

rule should codify IEPA’s intent to perform case-by-case evaluations for mixing. The Board

therefore amends the proposed language to allow mixing zones in more than 50% of a stream’s

volume where an adequate zone of passage is provided consistent with Section 302.102(b)(6).

The Board proposes to delete the Board’s proposed first notice language for Section

302.102(b)(8). The Board proposes that Section 302.102(b)(8) should state that:

The area and volume in which mixing occurs, alone or in combination

with other areas and volumes of mixing must not contain more than 25%

of the cross-sectional area or volume of flow of a stream except for those

streams where the dilution ratio is less than 3:1. In streams where the

dilution ratio is less than 3:1, the volume in which mixing occurs, alone or

in combination with other volumes of mixing must provide for an

adequate zone of passage pursuant to Section 302.102(b)(6).

The Board invites public comment on this proposed language.

Proceeding to Proposed Second Notice for Public Comments

The Board proceeded to first notice on September 20, 2007, to ensure the timely adoption

of the proposed rules. Today the Board proceeds to proposed second notice to provide time for

public comments regarding the Board’s changes to the sulfate water quality standards and

mixing zone provisions since the adoption of the first-notice regulations.

The Board finds that based on the record before the Board, the rules are economically

reasonable and technically feasible. In addition, the Board finds that the proposed second-notice

rules will be protective of the environment and human health. The Board therefore finds that

proceeding to proposed second notice is warranted. However, because of the nature of the

amendments to the first-notice rule language, the Board seeks public comment on the changes

proposed today. Accordingly, the Board will accept comments filed by June 2, 2008. After that

date, the Board will proceed to second notice.

CONCLUSION

The Board finds that the record supports proceeding to proposed second notice with

IEPA’s proposal as amended by the Board. The Board agrees with IEPA that the record contains

sufficient analysis of the economic reasonableness of the proposed sulfate standards on mining

operations. The Board amends the language regarding proposed water quality standards for

sulfate where chloride levels exceed 500 mg/L and hardness levels are 500 mg/L or lower in

consideration of IEPA’s PC 10, to ensure that chloride levels continue to be regulated according

to the federal Clean Water Act. The Board amends the proposed language regarding mixing

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12

zones in streams where the dilution ratio is less than 3:1 to reflect that IEPA may use more than

50% of stream flow for mixing as long as an adequate zone of passage is provided. Public

comments on the proposed second-notice rules are due by June 2, 2008.

ORDER

The Board adopts the proposed amendments set forth below for proposed second notice

to allow for public comment on proposed changes to the rule language.

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

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13

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

302.307

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

302.508

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 Bioaccumulative Chemicals of

Concern (BCCs)

302.525

Radioactivity

302.530

Supplemental Mixing Provisions for Bioaccumulative Chemicals of Concern

(BCCs)

302.535

Ammonia Nitrogen

302.540

Other Toxic Substances

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14

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 Acute Aquatic 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 and Values 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 of

Water Chemistry

302.618

Determining the Acute Aquatic Toxicity Criterion - Toxicity Dependent on Water

Chemistry

302.621

Determining the Acute Aquatic Toxicity Criterion - Procedure 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

Combinations of Substances

302.633

The Wild and Domestic Animal Protection Criterion

---

15

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

302.APPENDIX A

References to Previous Rules

302.APPENDIX B

Sources of Codified Sections

302.APPENDIX C

Maximum total ammonia nitrogen concentrations allowable for certain

combinations of pH and temperature

302.TABLE A

pH-Dependent Values of the AS (Acute Standard)

302.TABLE B

Temperature and pH-Dependent Values of the CS (Chronic Standard) for

Fish Early Life Stages Absent

302.TABLE C

Temperature and pH-Dependent Values of the CS (Chronic Standard) for

Fish Early Life Stages Present

302.APPENDIX D

Section 302.206(d): Stream Segments for Enhanced Dissolved Oxygen

Protection

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 R04-21

at 30 Ill. Reg. 4919, effective March 1, 2006; amended in R04-25 at 32 Ill. Reg. 2254, effective

January 28, 2008; amended in R07-9 at 32 Ill. Reg. __________, effective __________.

SUBPART A: GENERAL WATER QUALITY PROVISIONS

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16

Section 302.102

Allowed Mixing, Mixing Zones and ZIDs

a)

Whenever a water quality standard is more restrictive than its corresponding

effluent standard, or where there is no corresponding effluent standard specified at

35 Ill. Adm. Code 304, an opportunity shall be allowed for compliance with 35

Ill. Adm. Code 304.105 by mixture of an effluent with its receiving waters,

provided the discharger has made every effort to comply with the requirements of

35 Ill. Adm. Code 304.102.

b)

The portion, volume and area of any receiving waters within which mixing is

allowed pursuant to subsection (a) shall be limited by the following:

1)

Mixing must be confined in an area or volume of the receiving water no

larger than the area or volume which would result after incorporation of

outfall design measures to attain optimal mixing efficiency of effluent and

receiving waters. Such measures may include, but are not limited to, use

of diffusers and engineered location and configuration of discharge points.

2)

Mixing is not allowed in waters which include a tributary stream entrance

if such mixing occludes the tributary mouth or otherwise restricts the

movement of aquatic life into or out of the tributary.

3)

Mixing is not allowed in water adjacent to bathing beaches, bank fishing

areas, boat ramps or dockages or any other public access area.

4)

Mixing is not allowed in waters containing mussel beds, endangered

species habitat, fish spawning areas, areas of important aquatic life habitat,

or any other natural features vital to the well being of aquatic life in such a

manner that the maintenance of aquatic life in the body of water as a

whole would be adversely affected.

5)

Mixing is not allowed in waters which contain intake structures of public

or food processing water supplies, points of withdrawal of water for

irrigation, or watering areas accessed by wild or domestic animals.

6)

Mixing must allow for a zone of passage for aquatic life in which water

quality standards are met. However, a zone of passage is not required in

receiving streams that have zero flow for at least seven consecutive days

recurring on average in nine years out of ten.

7)

The area and volume in which mixing occurs, alone or in combination

with other areas and volumes of mixing, must not intersect any area of any

body of water in such a manner that the maintenance of aquatic life in the

body of water as a whole would be adversely affected.

---

17

8)

The area and volume in which mixing occurs, alone or in combination

with other areas and volumes of mixing must not contain more than 25%

of the cross-sectional area or volume of flow of a stream except for those

streams where the dilution ratio is less than 3:1. In streams where the

dilution ratio is less than 3:1, the volume in which mixing occurs, alone or

in combination with other volumes of mixing must provide for an

adequate zone of passage pursuant to Section 302.102(b)(6). Mixing is

not allowed in receiving waters which have a zero minimum seven day

low flow which occurs once in ten years.

9)

No mixing is allowed where the water quality standard for the constituent

in question is already violated in the receiving water.

10)

No body of water may be used totally for mixing of single outfall or

combination of outfalls, except as provided in Section 302.102(b)(6)

.

11)

Single sources of effluents which have more than one outfall shall be

limited to a total area and volume of mixing no larger than that allowable

if a single outfall were used.

12)

The area and volume in which mixing occurs must be as small as is

practicable under the limitations prescribed in this subsection, and in no

circumstances may the mixing encompass a surface area larger than 26

acres.

c)

All water quality standards of this Part must be met at every point outside of the

area and volume of the receiving water within which mixing is allowed. The

acute toxicity standards of Sections 302.208 and 302.210 must be met within the

area and volume within which mixing is allowed, except as provided in

subsection (e).

d)

Pursuant to the procedures of Section 39 of the Act and 35 Ill. Adm. Code 309, a

person may apply to the Agency to include as a condition in an NPDES permit

formal definition of the area and volume of the waters of the State within which

mixing is allowed for the NPDES discharge in question. Such formally defined

area and volume of allowed mixing shall constitute a "mixing zone" for the

purposes of 35 Ill. Adm. Code: Subtitle C. Upon proof by the applicant that a

proposed mixing zone conforms with the requirements of Section 39 of the Act,

this Section and any additional limitations as may be imposed by the Clean Water

Act (CWA) (33 USC

U.S.C 1251 et seq.), the Act or Board regulations, the

Agency shall, pursuant to Section 39(b) of the Act, include within the NPDES

permit a condition defining the mixing zone.

e)

Pursuant to the procedures of Section 39 of the Act and 35 Ill. Adm. Code 309, a

person may apply to the Agency to include as a condition in an NPDES permit a

ZID as a component portion of a mixing zone. Such ZID shall, at a minimum, be

---

18

limited to waters within which effluent dispersion is immediate and rapid. For the

purposes of this subsection, "immediate" dispersion means an effluent's merging

with receiving waters without delay in time after its discharge and within close

proximity of the end of the discharge pipe, so as to minimize the length of

exposure time of aquatic life to undiluted effluent, and "rapid" dispersion means

an effluent's merging with receiving waters so as to minimize the length of

exposure time of aquatic life to undiluted effluent. Upon proof by the applicant

that a proposed ZID conforms with the requirements of Section 39 of the Act and

this Section, the Agency shall, pursuant to Section 39(b) of the Act, include

within the NPDES permit a condition defining the ZID.

f)

Pursuant to Section 39 of the Act and 35 Ill. Adm. Code 309.103, an applicant for

an NPDES permit shall submit data to allow the Agency to determine that the

nature of any mixing zone or mixing zone in combination with a ZID conforms

with the requirements of Section 39 of the Act and of this Section. A permittee

may appeal Agency determinations concerning a mixing zone or ZID pursuant to

the procedures of Section 40 of the Act and 35 Ill. Adm. Code 309.181.

g)

Where a mixing zone is defined in an NPDES permit, the waters within that

mixing zone, for the duration of that NPDES permit, shall constitute the sole

waters within which mixing is allowed for the permitted discharge. It shall not be

a defense in any action brought pursuant to 35 Ill. Adm. Code 304.105 that the

area and volume of waters within which mixing may be allowed pursuant to

subsection (b) is less restrictive than the area or volume or waters encompassed in

the mixing zone.

h)

Where a mixing zone is explicitly denied in a NPDES permit, no waters may be

used for mixing by the discharge to which the NPDES permit applies, all other

provisions of this Section notwithstanding.

i)

Where an NPDES permit is silent on the matter of a mixing zone, or where no

NPDES permit is in effect, the burden of proof shall be on the discharger to

demonstrate compliance with this Section in any action brought pursuant to 35 Ill.

Adm. Code 304.105.

(Source: Amended at 32 Ill. Reg. _________, effective ___________)

SUBPART B: GENERAL USE WATER QUALITY STANDARDS

Section 302.208

Numeric Standards for Chemical Constituents

a)

The acute standard (AS) for the chemical constituents listed in subsection (e) shall

not be exceeded at any time except as provided in subsection (d).

b)

The chronic standard (CS) for the chemical constituents listed in subsection (e)

shall not be exceeded by the arithmetic average of at least four consecutive

---

19

samples collected over any period of at least four days, except as provided in

subsection (d). The samples used to demonstrate attainment or lack of attainment

with a CS must be collected in a manner that assures an average representative of

the sampling period. For the metals that have water quality based standards

dependent upon hardness, the chronic water quality standard will be calculated

according to subsection (e) using the hardness of the water body at the time the

metals sample was collected. To calculate attainment status of chronic metals

standards, the concentration of the metal in each sample is divided by the

calculated water quality standard for the sample to determine a quotient. The

water quality standard is attained if the mean of the sample quotients is less than

or equal to one for the duration of the averaging period.

c)

The human health standard (HHS) for the chemical constituents listed in

subsection (f) shall not be exceeded when the stream flow is at or above the

harmonic mean flow pursuant to Section 302.658 nor shall an annual average,

based on at least eight samples, collected in a manner representative of the

sampling period, exceed the HHS except as provided in subsection (d).

d)

In waters where mixing is allowed pursuant to Section 302.102, the following

apply:

1)

The AS shall not be exceeded in any waters except for those waters for

which the Agency has approved a zone of initial dilutions (ZID) pursuant

to Section 302.102.

2)

The CS shall not be exceeded outside of waters in which mixing is

allowed pursuant to Section 302.102.

3)

The HHS shall not be exceeded outside of waters in which mixing is

allowed pursuant to Section 302.102.

e)

Numeric Water Quality Standards for the Protection of Aquatic Organisms

Constituent

STORET

Number

AS

(μg/L)

CS

(μg/L)

Arsenic

(trivalent,

dissolved)

22680

360

×

1.0*

=

360

190

×

1.0*

=

190

Cadmium

(dissolved)

01025

exp

()

()(

[])

*,

ln

0.041838

ln

1.138672

⎭

⎬

⎫

⎩

⎨

⎧−

+

×

H

e

AB H

exp

()

()(

[])

*,

ln

0.041838

ln

1.101672

⎭

⎬

⎫

⎩

⎨

⎧−

+

×

H

e

AB H

---

20

where

A

= −2

.198

and

B

=

1.128

where

A

= −3

.490

0.7852

and

B

=

Chromium

(hexavalent,

total)

01032

16

11

Chromium

(trivalent,

dissolved)

80357

exp

ln

()

0.316*

e

A

+

B H

×

3.688

,

where

A

=

B

=

0.8190

and

exp

ln

( )

0.860 *

e

A

+

B H

×

1.561

,

where

A

=

0.8190

and

B

=

Copper

(dissolved)

01040

exp

ln

()

0.960*

e

A

+

B H

×

,

where

A

= −1

.464

and

B

=

0.9422

exp

ln

( )

0.960 *

e

A

+

B H

×

,

where

A

= −1

.465

and

B

=

0.8545

Cyanide

00718

22

5.2

Lead

(dissolved)

01049

exp

()

()(

[])

*,

ln

0.145712

ln

1.46203

⎭

⎬

⎫

⎩

⎨

⎧−

+

×

H

e

AB H

where

A

= −1

.301

and

B

=

0.1.273

exp

()

()(

[])

*,

ln

0.145712

ln

1.46203

⎭

⎬

⎫

⎩

⎨

⎧−

+

×

H

e

AB H

where

A

= −2

.863

and

B

=

1.273

Mercury

(dissolved)

71890

2.6

×

0.85*

=

2.2

1.3× 0.85*

=

1.1

Nickel

(dissolved)

01065

exp

ln

()

0.998*

e

A

+

B H

×

,

where

A

=

0.5173

and

B

=

0.8460

exp

ln

( )

0.997 *

e

A

+

B H

×

,

where

A

= −2

.286

and

B

=

0.8460

---

21

TRC

500600

19

11

Zinc

(dissolved)

01090

exp

ln

()

0.978*

e

A

+

B H

×

,

where

A

=

0.9035

and

B

=

0.8473

exp

ln

( )

0.986 *

e

A

+

B H

×

,

where

A

= −0

.8165

and

B

=

0.8473

Benzene

78124

4200

860

Ethyl-

benzene

78113

150

14

Toluene

78131

2000

600

Xylene(s)

81551

920

360

where:

μg/L

= microgram per liter,

exp

[x]

e

x

= base of natural logarithms raised to the x- power,

ln

()

H

= natural logarithm of Hardness (STORET 00900), and

*

= conversion factor multiplier for dissolved metals

f)

Numeric Water Quality Standard for the Protection of Human Health

Constituent

STORET

Number

(μg/L)

Mercury

71900

0.012

Benzene

78124

310

where:

μg/L

= micrograms per liter

g)

Concentrations of the following chemical constituents shall not be exceeded

except in waters for which mixing is allowed pursuant to Section 302.102.

Constituent

Unit

STORET

Number

Standard

Barium (total)

mg/L

01007

5.0

Boron (total)

mg/L

01022

1.0

Chloride (total)

mg/L

00940

500

Fluoride

mg/L

00951

1.4

---

22

Iron (dissolved)

mg/L

01046

1.0

Manganese (total)

mg/L

01055

1.0

Phenols

mg/L

32730

0.1

Selenium (total)

mg/L

01147

1.0

Silver (total)

μg/L

01077

5.0

Sulfate

mg/L

00945

500

Total Dissolved

Solids

mg/L

70300

1000

where: mg/L

= milligram per liter and

μg/L

= microgram per liter

h)

The following concentrations for sulfate must not be exceeded except in receiving

waters for which mixing is allowed pursuant to Section 302.102:

1)

At any point where water is withdrawn or accessed for purposes of

livestock watering, the average of sulfate concentrations must not exceed

2,000 mg/L when measured at a representative frequency over a 30 day

period.

2)

The results of the following equations provide sulfate water quality

standards in mg/L for the specified ranges of hardness (in mg/L as CaCO

3

)

and chloride (in mg/L) and must be met at all times:

A)

If the hardness concentration of receiving waters is greater than or

equal to 100 mg/L but less than or equal to 500 mg/L, and if the

chloride concentration of waters is greater than or equal to 25

mg/L but less than or equal to 500 mg/L, then:

C = [1276.7 + 5.508 (hardness) – 1.457 (chloride) ] * 0.65

where, C = sulfate concentration

B)

If the hardness concentration of waters is greater than or equal to

100 mg/L but less than or equal to 500 mg/L, and if the chloride

concentration of waters is greater than or equal to 5 mg/L but less

than 25 mg/L, then:

C = [-57.478 + 5.79 (hardness) + 54.163 (chloride) ] * 0.65

where C = sulfate concentration

---

23

3)

The following sulfate standards must be met at all times when hardness (in

mg/L as CaCO

3

) and chloride (in mg/L) concentrations other than

specified in (h)(2) are present:

A)

If the hardness concentration of waters is less than 100 mg/L or

chloride concentration of waters is less than 5 mg/L, the sulfate

standard is 500 mg/L.

B)

If the hardness concentration of waters is greater than 500 mg/L

and the chloride concentration of waters is 5 mg/L or greater, the

sulfate standard is 2,000 mg/L.

C)

If the combination of hardness and chloride concentrations of

existing waters are not reflected above, the sulfate standard may be

determined in a site-specific rulemaking pursuant to Section 303(c)

of the Federal Water Pollution Control Act of 1972 (Clean Water

Act), 33 USC 1313, and Federal Regulations at 40 C.F.R.

131.10(j)(2).

(Source: Amended at 32 Ill. Reg. ____________, effective _____________)

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE C: WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 309

PERMITS

SUBPART A: NPDES PERMITS

Section

309.101

Preamble

309.102

NPDES Permit Required

309.103

Application - General

309.104

Renewal

309.105

Authority to Deny NPDES Permits

309.106

Access to Facilities and Further Information

309.107

Distribution of Applications

309.108

Tentative Determination and Draft Permit

309.109

Public Notice

309.110

Contents of Public Notice of Application

309.111

Combined Notices

309.112

Agency Action After Comment Period

309.113

Fact Sheets

309.114

Notice to Other Governmental Agencies

309.115

Public Hearings on NPDES Permit Applications

309.116

Notice of Agency Hearing

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24

309.117

Agency Hearing

309.118

Agency Hearing File

309.119

Agency Action After Hearing

309.120

Reopening the Record to Receive Additional Written Comment

309.141

Terms and Conditions of NPDES Permits

309.142

Water Quality Standards and Waste Load Allocation

309.143

Effluent Limitations

309.144

Federal New Source Standards of Performance

309.145

Duration of Permits

309.146

Authority to Establish Recording, Reporting, Monitoring and Sampling

Requirements

309.147

Authority to Apply Entry and Inspection Requirements

309.148

Schedules of Compliance

309.149

Authority to Require Notice of Introduction of Pollutants into Publicly Owned

Treatment Works

309.150

Authority to Ensure Compliance by Industrial Users with Sections 204(b), 307

and 308 of the Clean Water Act

309.151

Maintenance and Equipment

309.152

Toxic Pollutants

309.153

Deep Well Disposal of Pollutants (Repealed)

309.154

Authorization to Construct

309.155

Sewage Sludge Disposal

309.156

Total Dissolved Solids Reporting and Monitoring

309.157

Permit Limits for Total Metals

309.181

Appeal of Final Agency Action on a Permit Application

309.182

Authority to Modify, Suspend or Revoke Permits

309.183

Revision of Schedule of Compliance

309.184

Permit Modification Pursuant to Variance

309.185

Public Access to Information

309.191

Effective Date

SUBPART B: OTHER PERMITS

Section

309.201

Preamble

309.202

Construction Permits

309.203

Operating Permits; New or Modified Sources

309.204

Operating Permits; Existing Sources

309.205

Joint Construction and Operating Permits

309.206

Experimental Permits

309.207

Former Permits (Repealed)

309.208

Permits for Sites Receiving Sludge for Land Application

309.221

Applications - Contents

309.222

Applications - Signatures and Authorizations

309.223

Applications - Registered or Certified Mail

309.224

Applications - Time to Apply

309.225

Applications - Filing and Final Action By Agency

---

25

309.241

Standards for Issuance

309.242

Duration of Permits Issued Under Subpart B

309.243

Conditions

309.244

Appeals from Conditions in Permits

309.261

Permit No Defense

309.262

Design, Operation and Maintenance Criteria

309.263

Modification of Permits

309.264

Permit Revocation

309.265

Approval of Federal Permits

309.266

Procedures

309.281

Effective Date

309.282

Severability

309.APPENDIX A

References to Previous Rules

AUTHORITY: Implementing Sections 13 and 13.3 and authorized by Section 27 of the

Environmental Protection Act [415 ILCS 5/13, 13.3 and 27].

SOURCE: Adopted in R71-14, at 4 PCB 3, March 7, 1972; amended in R73-11, 12, at 14 PCB

661, December 5, 1974, at 16 PCB 511, April 24, 1975, and at 28 PCB 509, December 20, 1977;

amended in R73-11, 12, at 29 PCB 477, at 2 Ill. Reg. 16, p. 20, effective April 20, 1978;

amended in R79-13, at 39 PCB 263, at 4 Ill. Reg. 34, p. 159, effective August 7, 1980; amended

in R77-12B, at 41 PCB 369, at 5 Ill. Reg. 6384, effective May 28, 1981; amended in R76-21, at

44 PCB 203, at 6 Ill. Reg. 563, effective December 24, 1981; codified at 6 Ill. Reg. 7818;

amended in R82-5, 10, at 54 PCB 411, at 8 Ill. Reg. 1612, effective January 18, 1984; amended

in R86-44 at 12 Ill. Reg. 2495, effective January 13, 1988; amended in R88-1 at 13 Ill. Reg.

5993, effective April 18, 1989; amended in R88-21(A) at 14 Ill. Reg. 2892, effective February

13, 1990; amended in R91-5 at 16 Ill. Reg. 7339, effective April 27, 1992; amended in R95-22 at

20 Ill. Reg. 5526, effective April 1, 1996; amended in R99-8 at 23 Ill. Reg. 11287, effective

August 26, 1999; amended in R02-11 at 27 Ill. Reg. 202, effective December 20, 2002; amended

in R03-19 at 28 Ill. Reg. 7310, effective May 7, 2004; amended in R07-9 at 32 Ill. Reg.

__________, effective __________.

SUBPART A: NPDES PERMITS

Section 309.103

Application - General

a)

Application Forms

1)

An applicant for a National Pollution Discharge Elimination System

(NPDES) Permit shall file an application, in accordance with Section

309.223 hereof

, on forms provided by the Illinois Environmental

Protection Agency (Agency). Such forms shall comprise the NPDES

application forms promulgated by the U.S. Environmental Protection

Agency for the type of discharge for which an NPDES Permit is being

sought and such additional information as the Agency may reasonably

---

26

require in order to determine that the discharge or proposed discharge will

be in compliance with applicable state and federal requirements.

2)

In addition to the above application forms, the Agency may require the

submission of plans and specifications for treatment works and summaries

of design criteria.

3)

Effluent toxicity monitoring

A)

In addition to the above application forms, the Agency may

require, pursuant to Section 39 of the Act, the installation, use,

maintenance and reporting of results from monitoring equipment

and methods, including biological monitoring. The Agency may

require, pursuant to Section 39 of the Act, effluent toxicity testing

to show compliance with 35 Ill. Adm. Code 302.621 and 302.630.

If this toxicity testing shows the effluent to be toxic, the Agency

may require pursuant to Section 39 of the Act further testing and

identification of the toxicants

toxicant(s) pursuant to 35 Ill. Adm.

Code 302.210(a).

B)

The following POTWs shall provide the results of valid whole

effluent biological toxicity testing to the Agency:

i)

All POTWs with design influent flows equal to or greater

than one million gallons per day;

ii)

All POTWs with approved pretreatment programs or

POTWs required to develop a pretreatment program

pursuant to 35 Ill. Adm. Code 310.Subpart E;

C)

In addition to the POTWs listed in subsection

(a)(3)(B), the

Agency may require other POTWs to submit the result of toxicity

tests with their permit applications, based on consideration of the

following factors.

i)

The variability of the pollutants or pollutant parameters in

the POTW effluent (based on chemical-specific

information, the type of treatment facility, and types of

industrial contributors);

ii)

The dilution of the effluent in the receiving water (ratio of

effluent flow to receiving stream flow);

iii)

Existing controls on point or nonpoint sources, including

total maximum daily load calculations for the waterbody

segment and the relative contribution of the POTW;

---

27

iv)

Receiving stream characteristics, including possible or

known water quality impairment, and whether the POTW

discharges to a coastal water, one of the Great Lakes, or a

water designated as an outstanding natural resource; or

v)

Other considerations (including but not limited to the

history of toxic impact and compliance problems at the

POTW), which the Agency determines could cause or

contribute to adverse water quality impacts.

D)

The POTWs required under subsection

subsections (a)(3)(B) or

(a)(3)(C) to conduct toxicity testing shall use the methods

prescribed at 35 Ill. Adm. Code 302.Subpart F. Such testing must

have been conducted since the later of the last NPDES permit

reissuance or permit modification pursuant to Section 309.182,

309.183 or 309.184 for any of the reasons listed at 40 CFR

122.62(a) (1994),

as amended at 60 Fed. Reg. 33926 effective June

29, 1995, herein incorporated by reference (including no later

amendments or editions).

4)

All POTWs with approved pretreatment programs shall provide the

following information to the Agency: a written technical evaluation of the

need to revise local limits pursuant to 35 Ill. Adm. Code 310.210.

BOARD NOTE: Subsections (a)(3)(B) through (a)(4) are derived from 40 CFR

122.21(j) (1994).

b)

Animal Waste Facilities

An applicant for an NPDES Permit in connection with the operation of an animal

waste facility shall complete, sign, and submit an NPDES application in

accordance with the provisions of 35 Ill. Adm. Code: Subtitle E, Chapter I.

c)

Mining Activities

1)

If, as defined by 35 Ill. Adm. Code 402.101, mining activities are to be

carried out on a facility for which an NPDES Permit is held or required,

the applicant must submit a permit application as required by 35 Ill. Adm.

Code 403.103, 403.104 and 405.104. If the facility will have a discharge

other than a mine discharge or non-point source mine discharge as defined

by 35 Ill. Adm. Code 402.101, the applicant shall also submit an NPDES

Permit application in accordance with Section 309.223 on forms supplied

by the Agency.

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2)

As provided by 35 Ill. Adm. Code 403.101, except to the extent

contradicted in 35 Ill. Adm. Code: Subtitle D, Chapter I, the rules

contained in this Subpart apply only to 35 Ill. Adm. Code: Subtitle D,

Chapter I NPDES Permits.

3)

As provided by 35 Ill. Adm. Code 406.100, except to the extent provided

in 35 Ill. Adm. Code: Subtitle D, Chapter I, the effluent and water quality

standards of 35 Ill. Adm. Code 302, 303 and

304 are inapplicable to mine

discharges and non-point source mine discharges.

d)

New Discharges

Any person whose discharge will begin after the effective date of this Subpart A

or any person having an NPDES Permit issued by the U.S. Environmental

Protection Agency for an existing discharge which will substantially change in

nature, or increase in volume or frequency, must apply for an NPDES Permit

either:

1)

No later than 180 days in advance of the date on which such NPDES

Permit will be required; or

2)

In sufficient time prior to the anticipated commencement of the discharge

to insure compliance with the requirements of Section 306 of the Clean

Water Act (CWA) (33 USC

U.S.C. 1251 et seq), or with any other

applicable water quality standards and applicable effluent standards and

limitations.

e)

Signatures

An application submitted by a corporation shall be signed by a principal executive

officer of at least the level of vice president, or his duly authorized representative,

if such representative is responsible for the overall operation of the facility from

which the discharge described in the application form originates. In the case of a

partnership or a sole proprietorship, the application shall be signed by a general

partner or the proprietor, respectively. In the case of a publicly owned facility,

the application shall be signed by either the principal executive officer, ranking

elected official, or other duly authorized employee.

(Source: Amended at 32 Ill. Reg. __________, effective __________)

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE D: MINE RELATED WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 405

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STATE AND NPDES PERMITS

Section

405.100

Preamble

405.101

Special Conditions: Agency Guidance Document

405.102

Standard for Permit Issuance or Certification

405.103

Permit Modification When New Regulations are Adopted

405.104

Permit Applications

405.105

Surface Drainage Control

405.106

Refuse Disposal

405.107

Experimental Permits for Refuse Disposal

405.108

Permit for Use of Acid-producing Mine Refuse

405.109

Abandonment Plan

405.110

Cessation, Suspension or Abandonment

405.111

Emergency Procedures To Control Pollution

405.112

Mine Entrances

405.113

Permit Area

405.APPENDIX A

References to Previous Rules

AUTHORITY: Implementing Sections 12 and 13 and authorized by Section 27 of the

Environmental Protection Act [415 ILCS 5/12, 13, and 27 (2006)].

SOURCE: Adopted in R76-20, R77-10, 39 PCB 196, at 4 Ill. Reg. 34, p. 164, effective August 7,

1980; codified at 5 Ill. Reg. 8527; amended in R83-6A at 8 Ill. Reg. 13267, effective July 16,

1984; amended in R07-9 at 32 Ill. Reg. __________, effective __________.

Section 405.109

Abandonment Plan

a)

A state or NPDES permit shall include an abandonment plan as a condition.

b)

An abandonment plan shall be incorporated into the permit by reference if it:

1)

Includes a time schedule establishing that the abandonment plan will be

executed and completed within a reasonable time after abandonment

considering any potential adverse impact on the environment pending

completion of the plan and the amount of time required to carry out the

steps in the plan; one year is assumed to be a reasonable time unless the

operator demonstrates that a longer time is reasonable; and

2)

Shows that the mine related facilities and mining activities will be

abandoned so as not to cause a violation of the Act or this Chapter.

;

A)

If the plan includes a discharge which will remain after

abandonment which will not meet the requirements of 35 Ill. Adm.

Code 406.202, and if the permit included water quality-based

conditions under 35 Ill. Adm. Code 406.203 during active

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mining, the discharge shall be deemed to meet 35 Ill. Adm. Code

406.202 with respect to total dissolved solids, chloride, sulfate,

iron and manganese if it will meet the requirements of 35 Ill.

Adm. Code 406.106 and 406.203(c)(1) and (c)(2); or

B)

If the plan includes impoundments which will remain after

abandonment and which will not meet the water quality standards

of 35 Ill. Adm. Code 302.204 or 302.208, with respect to total

dissolved solids, chloride, sulfate, iron, manganese and pH, such

fact shall not prevent approval of the plan if the impoundment will

meet the requirements of 35 Ill. Adm. Code 406.106 and

406.203(c)(1) and (c)(2).

c)

If the abandonment plan does not meet the standard of paragraph

subsection (b)

the Agency may either deny the permit or issue it with an abandonment plan

modified by conditions subject to Section 405.101.

d)

The time limit provided by paragraph

subsection (b)(1) is inapplicable to

abandonment plans for surface coal mines which are approved as reclamation

plans under the Surface Coal Mining Land Conservation and Reclamation Act,

[225 ILCS 720]

(Ill. Rev. Stat. 1983, ch. 96 1/2, par. 7902.03).

e)

Any abandonment plan constituting a substantial change from the permitted

abandonment plan is a revised abandonment plan.

f)

A permittee shall apply for a new or revised or supplemental NPDES or State

state

permit prior to implementation of a revised abandonment plan within the

time limits provided by 35 Ill. Adm. Code 403.104(c).

g)

An abandonment plan incorporated into a permit pursuant to showing under 35

Ill. Adm. Code 406.203 shall include conditions pursuant to 35 Ill. Adm. Code

406.203(e)(1) and (e)(2).

(Source: Amended at 32 Ill. Reg. ___________, effective _________)

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE D: MINE RELATED WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 406

MINE WASTE EFFLUENT AND WATER QUALITY STANDARDS

SUBPART A: EFFLUENT STANDARDS

Section

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406.100

Preamble

406.101

Averaging

406.102

Sampling, Reporting and Monitoring

406.103

Background Concentrations

406.104

Dilution

406.105

Commingling of Waste Streams

406.106

Effluent Standards for Mine Discharges

406.107

Offensive Discharges

406.108

Non-Point Source Mine Discharges

406.109

Effluent Standards for Coal Mine Discharge from Reclamation Areas

406.110

Alternate Effluent Standards for Coal Mine Discharges During Precipitation

Events

SUBPART B: WATER QUALITY STANDARDS

Section

406.201

Temporary Exemption from Section 406.105 (Repealed)

406.202

Violation of Water Quality Standards

406.203

TDS Related Permit Conditions (Repealed)

406.204

Good Mining Practices

406.205

Contact with Disturbed Areas

406.206

Retention and Control of Exposed Waters

406.207

Control of Discharge Waters

406.208

Unconventional Practices

406.209

Expiration of Former Exemptions (Repealed)

406.APPENDIX A

References to Previous Rules

AUTHORITY: Implementing Sections 12 and 13 and authorized by Section 27 of the

Environmental Protection Act [415 ILCS 5/12, 13 and 27].

SOURCE: Adopted in R76-20, R77-10, 39 PCB 196, at 4 Ill. Reg. 34, p. 164, effective August 7,

1980; codified at 5 Ill. Reg. 8527; emergency amendment in R83-6B at 7 Ill. Reg. 8386,

effective July 5, 1983, for a maximum of 150 days; amended in R83-6B at 7 Ill. Reg. 14510,

effective October 19, 1983; amended in R83-6A at 8 Ill. Reg. 13239, effective July 16, 1984;

amended in R84-29 at 11 Ill. Reg. 12899, effective July 27, 1987; amended in R07-9 at 32 Ill.

Reg. _________, effective __________.

SUBPART A: EFFLUENT STANDARDS

Section 406.100

Preamble

a)

Part 406 applies to mine discharges and non-point source mine discharges as

defined by Section 402.101.

b)

Other discharges, including sanitary sewers, are regulated under Subtitle C,

Chapter I: Water Pollution.

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c)

A facility which has another discharge will be subject to both Subtitle C and

Subtitle D. Subtitle D governs mining activities, including mine discharges and

non-point source mine discharges. Subtitle C governs other discharges.

d)

Except to the extent provided in this Part 406, Part

Parts 302, 303 and 304 of

subtitle C is

are inapplicable to mine discharges and non-point source mine

discharges.

(Source: Amended at 32 Ill. Reg. ___________, effective _____________)

SUBPART B: WATER QUALITY STANDARDS

Section 406.203

TDS Related Permit Conditions (Repealed)

a)

This Section sets forth procedures by which water quality-based permit conditions

for total dissolved solids, chloride, sulfate, iron and manganese may be

established by the Agency for coal mine discharges. These procedures apply

instead of Section 406.202 whenever a permit applicant elects to proceed under

this Section. A permittee must comply with water quality-based permit

conditions for total dissolved solids, chloride, sulfate, iron and manganese

established pursuant to this Section instead of Section 406.202. Public hearings

may be required pursuant to 35 Ill. Adm. Code 309.115.

b)

An applicant may elect to proceed under this Section by providing the required

information as part of a new or renewed or supplemental state or NPDES permit

application.

c)

The Agency shall establish permit conditions under this Section if all of the

following conditions are met:

1)

The applicant proves to the Agency that the discharge will not cause an

adverse effect on the environment in and around the receiving stream, by

either:

A)

Demonstrating that the discharge will contain a

concentration less than or equal to 3500 mg/l sulfate and 1000 mg/l

chloride; or,

B)

Through actual stream studies.

2)

The applicant proves to the Agency that the discharge will not adversely

affect any public water supply; and

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3)

The applicant proves to the Agency that it is utilizing good mining

practices designed to minimize discharge of total dissolved solids,

chloride, sulfate iron and manganese.

d)

The Agency may promulgate under 35 Ill. Adm. Code 405.101(c) a code of good

mining practices consistent with the definition in Section 406.204. Compliance

with the code of good mining practices shall be prima facie evidence that the

applicant is utilizing good mining practices within the meaning of paragraph

(c)(3).

e)

Whenever the Agency issues a permit based on this Section, it shall include such

conditions as may be necessary to ensure that:

1)

There is no adverse effect on the environment in and around the receiving

stream;

2)

The discharge does not adversely affect any public water supply; and

3)

The permittee utilizes good mining practices designed to minimize

discharge of total dissolved solids, chloride, sulfate, iron and manganese.

f)

Whenever the Agency issues a permit pursuant to this Section, if may include as a

condition a requirement that the permittee submit to the Agency effluent data for

total dissolved solids, chloride, sulfate, iron and manganese.

(Source: Repealed at 32 Ill. Reg. ________, effective ____________)

Section 406.209

Expiration of Former Exemptions (Repealed)

a)

Exemptions from the water quality standards granted prior to the effective date of

Section 406.203 shall continue until any of the following events occurs:

1)

Any State or NPDES permit for the facility expires, or is revoked,

renewed or reissued;

2)

Any State or NPDES permit for the facility is modified, unless the Agency

expressly continues the exemption pending review pursuant to paragraph

(b);

3)

An application period set pursuant to paragraph (b) expires with no

application having been received;

4)

The Agency grants or denies a permit under Section 406.203; or

5)

January 1, 1987, the final date for continuation of former exemptions.

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b)

The Agency may require applications for review pursuant to Section 406.203 by

notifying individual permittees and setting a date for application not less than 15

months after the date notice is given.

c)

If an appeal to the Board is filed, exemptions continue until the Board enters a

final order disposing of the appeal.

(Source: Repealed at 32 Ill. Reg. ________, effective ____________)

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE D: MINE RELATED WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 407

COMPLIANCE AND EFFECTIVE DATES (REPEALED)

Section

407.101

Effective Date

407.102

Applications from Holders of Outstanding Permits

407.103

Expiration of Outstanding Permits

407.104

Abandonment Plan for Existing Permits

APPENDIX A References to Previous Rules

AUTHORITY: Authorized by Section 27 and implementing Sections 12 and 13 and authorized

by Section 27 of the Illinois Environmental Protection Act (Ill. Rev. Stat., ch. 111 1/2, pars.

1012, 1013 and 1027) unless otherwise noted.

SOURCE: Adopted at 4 Ill. Reg. 34, p. 164, effective August 7, 1980; codified at 5 Ill. Reg. 34,

p. 8527, effective August 10, 1981; Repealed in R07-9 at 31 Ill. Reg. _______, effective

_______.

Section 407.101

Effective Date

This Chapter is effective upon filing with the Secretary of State.

Section 407.102 Applications from Holders of Outstanding Permits

a)

A holder of an outstanding operating permit under the old Chapter 4 may apply

for a state or NPDES permit at any time.

b)

The Agency may by notification require a holder of an outstanding operating

permit to apply for a state or NPDES permit.

c)

Notification shall contain a date, not less than 180 days after notification, by

which date an application must be received by the Agency.

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Section 407.103

Expiration of Outstanding Permits

Compliance with the provisions of this Chapter is required on the effective date except that

immediate compliance with the permit requirement of Section 404.101 is not required of holders

of outstanding permits for mines opened prior to the effective date of this Subtitle D, Chapter I.

For such facilities, compliance with Section 404.101 is required upon expiration of the

outstanding operating permit. Such permits shall expire upon the occurrence of any of the

following conditions, whichever occurs first:

a)

The lapse of three years after the effective date of this Chapter; or

b)

The expiration of any NPDES permit held by the permittee for the facility; or

c)

Issuance of a permit for the facility pursuant to Section 403.102 or Section

404.101; or

d)

The lapse of an application period fixed pursuant to Section 407.102(c) if an

application is not received by the date given in the notification.

Section 407.104

Abandonment Plan for Existing Permits

The requirement of a permit to abandon contained in Rule 502 of old Chapter 4, effective May

23, 1972 shall continue to apply to operators of mines opened prior to the effective date of this

Subtitle D, Chapter I, until such time as such operator shall have been issued under this Subtitle

D, Chapter I a valid permit containing an abandonment plan.

Section 407.APPENDIX A

REFERENCES TO PREVIOUS RULES

The following table is provided to aid in referencing old Board rule numbers to section numbers

pursuant to codification.

Chapter 4, Mine Related Pollution Part VII,

Compliance and Effective Dates

35 Ill. Admin. Code Part 407

Rule 701

Section 407.101

Rule 702

Section 407.102

Rule 703

Section 407.103

Rule 704

Section 407.104

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I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above opinion and order on May 1, 2008, by a vote of 4-0.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board