IlLINOIS

POLLUTION

CONTROL

BOARD

December 16,

1982

IN

THE MATTER

OF

PARALLEL SHORE PROTECTION

R

82~i1

IN

LAKE

MICHIGAN

(Subtitle

C;

Part 311)

Order of Dismissal.

OPINION AND ORDER

OF

THE BOARD

(by I~G~

Goodman):

On September 15,

1982 the Board adopted

a Proposed Rule!

First Notice Opinion and Order in this matter,~ The First Notice

was published in the Illinois Register on October 15~ 1982

(Vol.

6,

No. 42),

and the First Notice period ended on December

1,

1982.

During that period only one comment was received;

that being

from

the Illinois Department of Transportation

(IDOT)

on October

6,

1982.

The purpose of this rulemaking as proposed by IDOT was to

obviate the need

for Board review of individual Lake Michigan

permit applications for approval of structures

in the water which

comply with general permit conditions

as proposed in this rule-

making.

The Board would,

in effect, grant its concurrence by

having the Board Chairman sign a general

permit

document

(see

Ex.

2) which would be issued to future applicants whose applica-

tions demonstrate comp:tiance with the general permit conditions

for parallel shore construction

as determined by IDOT,

Those

conditions were to be established to insure that there would be

no harmful environmental effects caused by construction of the

structures.

For a description of the types of structures involved,

see Exhibit #1, pp. 664—753 and 787—799,

In

its comments

IDOT argues that the Board derives the power

to adopt its proposal under Section 13

(a)(3)

of the Environmental

Protection Act which allows the Board to prescribe standards “for

the issuance of permits

for construction~..ofany...facility...

capable

of causing or contributing

to water pollution.”

However,

IDOTtS proposal does not prescribe standards for the issuance of

such permits, but rather prescribes standards for Board concur-

rence

in

the issuance of a permit by IDOT,

That is, the proposal

acts as a limitation upon Board action rather than as a limitation

upon IDOT or the applicant.

If IDOT determines that a general

permit should issue,

it issues without any Board action or even

Board knowledge.

An

argument could be made that the Board has

in

fact taken

action through the adoption of IDOT~sproposal.

However,

to

argue that is to argue that a present Board may by regulation

bind

a

future Board~s

action

on an issue which the Board has

been given the duty to consider

(i.e. concurrence).

50-155

---

2

Ill.

Rev. Stat., c. 19, ¶ 65 mandates that the Board concur

in

any permit

issued by DOT

authorizing deposits in Lake Michigan.

DOT

now

requests

that

the

Board

concur

in

certain

such

permits

before

application

is

even

made.

Could

the

Board

by

regulation

express

its

concurrence

in

all

future

Lake

Michigan

permits?

Certainly

not.

Th

do

so

would

negate

by

regulation

the

mandate

of

the

legislature,

which

an

agency

cannot

do.

DOT’s

proposal

differs

only

in

degree:

it

only

negates

part

of

the

legislative

mandate.

That,

too,

however,

is

unac-

ceptable.

If the proposal is appropriate, then the statute should

be changed, which only the legislature can do.

The Board cannot.

The

Board

has

attempted

to

remedy this

problem

through

its

modification

of

IDOT’5

proposal.

However,

DOT

has

commented

that

these

changes

are

unacceptable

to

it.

Therefore,

the

Board

is left with no alternative but to dismiss the action.

The Board notes, however, that it is a full-time Board

which

has

the

ability

to

give

expeditious

consideration

to

any

which

IDOT

may

bring

before

Proceedings

in

this

matter

are

hereby

IT

IS

SO

Chairman

Dumelle

concurred.

I, thristan L. Moffett, Clerk of the Illinois Pollution

Control

Board,

hereby

certify

that

the

above

Order

was

adopted

on

the

?~0lL

day

of

~

,

1982

by

a

vote

of

~

~

Illinois Pollution

Board

50-156