Current through Register Vol. 48, No. 38, September 20, 2024
Waters of the Lake Michigan Basin must be free from any
substance or any combination of substances in concentrations toxic or harmful
to human health or animal, plant, or aquatic life. The numeric standards
protective of particular uses specified for individual chemical substances in
Section 302.504 are not subject to
recalculation by this Section; however, where no standard applies to a
category, a numeric value may be calculated.
a) Any substance will be deemed toxic or
harmful to aquatic life if present in concentrations that exceed the following:
1) A Tier I Lake Michigan Basin Acute Aquatic
Life Toxicity Criterion (LMAATC) or Tier II Lake Michigan Basin Acute Aquatic
Life Toxicity Value (LMAATV) derived under procedures in Sections
302.555,
302.560 or
302.563 at any time;
or
2) A Tier I Lake Michigan Basin
Chronic Aquatic Life Toxicity Criterion (LMCATC) or Tier II Lake Michigan Basin
Chronic Aquatic Life Toxicity Value (LMCATV) derived under procedures in
Section 302.565 as an average of four
samples collected on four different days.
b) Any combination of substances, including
effluents, will be deemed toxic to aquatic life if present in concentrations
that exceed either subsection (b)(1) or (b)(2):
1) A sample of water from the Lake Michigan
Basin collected outside of a designated zone of initial dilution must not
exceed 0.3 TUa
as determined for the most sensitive species tested using acute toxicity
testing methods.
2) A sample of
water from the Lake Michigan Basin collected outside a designated mixing zone
must not exceed 1.0 TUc
as determined for the most sensitive species tested using chronic toxicity
testing methods.
3) To demonstrate
compliance with subsections (b)(1) and (b)(2), at least two resident or
indigenous species must be tested. The rainbow trout must be used to represent
fish for the Open Waters of Lake Michigan and the fathead minnow must represent
fish for the other waters of the Lake Michigan Basin. Ceriodaphnia must
represent invertebrates for all waters of the Lake Michigan Basin. Other common
species may be used if listed in Table I (a) of
40 CFR
136, incorporated by reference at 35 Ill.
Adm. Code 301.106, and approved by the
Agency.
c) Any substance
must be deemed toxic or harmful to wildlife if present in concentrations that
exceed a Tier I Lake Michigan Basin Wildlife Criterion (LMWLC) derived under
procedures in Section
302.575 as an arithmetic average
of four samples collected over four different days.
d) For any substance that is a threat to
human health through drinking water exposure only, the resulting criterion or
value must apply to only the Open Waters of Lake Michigan. For any substance
that is determined to be a BCC, the resulting criterion must apply to the
entire Lake Michigan Basin. These substances must be deemed toxic or harmful to
human health if present in concentrations that exceed either of the following:
1) A Tier I Lake Michigan Basin Human Health
Threshold Criterion (LMHHTC) or Tier II Lake Michigan Basin Human Health
Threshold Value (LMHHTV) based on disease or functional impairment due to a
physiological mechanism for which there is a threshold dose below which no
damage occurs as derived under procedures in Section
302.585 as an arithmetic average
of four samples collected over four different days; or
2) A Tier I Lake Michigan Basin Human Health
Nonthreshold Criterion (LMHHNC) or Tier II Lake Michigan Basin Human Health
Nonthreshold Value (LMHHNV) based on disease or functional impairment due to a
physiological mechanism for which any dose may cause some risk of damage as
derived under procedures in Section
302.590 as an arithmetic average
of four samples collected over four different days.
e) The derived criteria and values apply at
all points outside of any waters in which mixing is allowed under Section
302.102 or
302.530.
f) The procedures of this Subpart E set forth
minimum data requirements, appropriate test protocols, and data assessment
methods for establishing criteria or values under subsections (b), (c), and
(d). No other procedures may be used to establish these criteria or values
unless approved by the Board in a rulemaking or adjusted standard proceeding
under Title VII of the Act. The validity and applicability of these procedures
may not be challenged in any proceeding brought under Title VIII or X of the
Act, although the validity and correctness of application of the numeric
criteria or values derived under this Subpart may be challenged in proceedings
under subsection (g).
g) Challenges
to Applying Criteria and Values
1) A
permittee may challenge the validity and correctness of application of a
criterion or value derived by the Agency under this Section only at the time
the criterion or value is first applied in its NPDES permit under 35 Ill. Adm.
Code 309.152 or in an action under
Title VIII of the Act for violation of the toxicity water quality standard.
Failure of a person to challenge the validity of a criterion or value at the
time of its first application to that person's facility constitutes a waiver of
a challenge in any subsequent proceeding involving an application of the
criterion or value to that person.
2) Consistent with subsection (g)(1), if a
criterion or value is included as, or is used to derive, a condition of an
NPDES discharge permit, a permittee may challenge the criterion or value in a
permit appeal under 35 Ill. Adm. Code
309.181.
3) Consistent with subsection (g)(1), in an
action when the alleged violation of the toxicity water quality standard is
based on an alleged excursion of a criterion or value, the person bringing the
action has the burdens of going forward with proof and persuasion regarding the
general validity and correctness of application of the criterion or
value.
h) Subsections (a)
through (e) do not apply to USEPA registered pesticides approved for aquatic
application and applied under the following conditions:
1) Application must be made in strict
compliance with label directions;
2) Applicator must be properly certified
under the provisions of the Federal Insecticide, Fungicide, and Rodenticide Act
(7 U.S.C.
136 et seq.);
3) Applications of aquatic pesticides must
comply with the laws, regulations and guidelines of all State and federal
agencies authorized by law to regulate, use or supervise pesticide
applications;
4) Aquatic pesticides
must not be applied to waters affecting public or food processing water
supplies unless a permit to apply the pesticide has been obtained from the
Agency. All permits must be issued so as not to cause a violation of the Act or
any of the Board's rules. To aid applicators in determining their
responsibilities under this subsection (h), a list of waters affecting public
water supplies must be published and maintained by the Agency's Division of
Public Water Supplies.
