ILLINOIS POLLUTION CONTROL BOARD

October

24, 1985

IN

THE

MATTER OF:

TITLE

35:

ENVIRONMENTAL PROTECTION

)

R82-2

SUBTITLE

I:

ATOMIC RADIATION

)

CHAPTER

I:

POLLUTION CONTROL BOARD

)

PART

1000:

RADIATION HAZARDS

Resolution

in Response

to JCAR Objection.

RESOLUTION AND ORDER OF THE BOARD

(by J.D. Dumelle):

This matter

comes before

the Board upon

a letter dated

September 19,

1985,

to the Board from the Joint Committee on

Administrative Rules

(JCAR)

informing the Board that JCAR has

objected

to this rulemaking.

This Resolution and Order

constitutes

the Board’s formal refusal

to modify

the rules

in

response

to that objection pursuant

to Section 7.07 of the

Administrative Procedure Act (APA).

A notice of

refusal

to

modify will

be timely

filed with the Secretary

of State

for

publication

in the Illinois Register.

JCAR’s September

19,

1985,

letter

reads,

in pertinent part,

as follows:

The Joint Committee objects

to

Section 1000.403 of

the

pollution Control Board’s rules entitled “Radiation

Hazards”;

35

111. Adm. Code 1000, because

the Board has

failed

to include within the referenced section the

proper standards, pursuant

to Section 4.02 of the

Illinois Administrative Procedure Act, by which it will

exercise its discretionary power.

Section 1000.403 states that ~‘operations

covered by

this subpart shall

be conducted

in such

a manner

as

to

provide reasonable assurance that” doses do not exceed

a

specified level

and that the total quantity of

radioactive material entering the environment

is kept to

a certain minimum.

Section 4.02 of

the Illinois Administrative Procedure

Act

(IAPA)

(Ill,

Rev.

Stat.

1983,

ch,

127,

par.

1004.02)

provides that REach rule which implements a

discretionary power

to be exercised

by an agency shall

include

the

standards by which

the agency shall exercise

the power.

Such

standards shall

be

stated as precisely

66~211

---

—2—

and clearly

as practicable

under

the conditions,

to

inform fully

those persons affected,”

**

*

It would appear that the Board

could incorporate much

more of what determines that a “reasonable assurance”

has been provided, specifically, the

information

obtained from the USNRC.

The Board should

be able to

inform operators of

what

they

will have

to do to meet

their

obl:L~tion

to

operate

in

such

a

way

as

to

provide

a “reaso

b~

assurance~

that

radiation

levels are kept

down.

*

*

*

Therefore~the

Joint:. Cormittee objects

to Section

1000.403

of

the

Pollution

Control Board’s rules entitled

“Radiation Hazards”;

35

il1~Adm. Code 1000,

because the

Board has failed

to include within

the

referenced

section

the proper standards, pursuant

to Section 4.02

of

the Illinois Administrative Procedure Act,

by which

it will exercise

its discretionary power.

JCAR believes,

based on discussion with DNS,

that DNS

(and

the Board, presumably)

will determine whether

“reasonable

assurance”

has been provided by analyzing certain information

provided by the operator “with

the help

of a manual developed by

the

tJSNRC

United

States Nuclear Regulatory Commission

.“

The

Board was,

therefore,

asked

“to include

in the rule

the

standards,

including

the

manual,

arid the process used

to

determine whether

that

assurance

is

reasonable.”

The Board cannot mod~tythe rule as requested by JCAR

this

late

in

the proceeding.

The “manual”

is not in the record,

nor

does

the Board have

a copy of

it.

It has not been the subject

of

hearings,

nor does the Board have any reason to believe

that it

contains “standards”

or

a

“process” which would aid the regulated

community in attaIning

or maintaining compliance with the adopted

rules,

Furthermore., under Section 6.02 of the APA,

the Board has

the authority to incorporate by reference “regulations or rules

of

an agency of the United States,”

Therefore,

the Board could

have simply incorporated these rules by reference,

thereby

avoiding any

controversy

over

their wording.

Yet, because

the

Board decided

to fully set forth

those rules

to give better

notice to

the regulated community of what

the requirements are,

JCAR has objected

to

them.

In

a subsequent rulemaking the Board

can,

and has, considered

modification

of

rules

to meet JCAR’s

objections, but the record

in this case demonstrates that the

regulated community has been subject

to the same rule on the

federal

level for

several years,

understands

it and

Is

in

compliance

with. Lt~ The Board,

therefore, sees no reason

to go

through such

a ~:ocedure when

it appears that little

or nothing

---

—3-.

would be gained,

and

thus refuses to modify the rule based on

,7CAR’s

objection.

Finally, the Board notes that in JCAR’s September

:19, 1985,

letter, JCAR indicates that the Board has agreed to delete the

phrase ‘conducted by or for such persons’ from Section

l000.501(a)(b) which has been renumbered as Section 1000.501(f)

and reads as follows:

All persons subject to this Part shall submit to the

Department, with respect to any material or facility

permitted or licensed by the NRC or for which an NRC

permit or license is sought:

f)

All data,

records, and reports submitted to the NRC

in connection with determining or predicting

radiation levels in air

in unrestricted areas or

the

type

or amount of radioactive materials emitted

into air conducted by or for such persons.

If the Board were to delete the recommended language, the set of

documents which would be required to be sent to DNS would be

enlarged to include records, data

and

reports which were

conducted by or for persons other than the person submitting

the

material to the NRC,

thus imposing a larger

and

more burdensome

obligation on the regulated community.

Furthermore, the Board

finds the lInguage to be sufficiently understandable in that

‘such persons’ refers to ‘persons subject to this Part’

in the

first paragraph of the section.

Thus, while JC&R finds this

wording confusing,

the Board finds it to be clear and finds

JCAR’s recommended change to be a substantive alteration of the

rule.

The Board will, therefore,

not make that change.

IT IS SO ORDERED.

Board Member

3.

Theodore Meyer dissented.

I, Dorothy H. Gunn, Cle~rkof the Illinois Pollution Control

Board, hereby certify that the above Resolution and Order was

adopted on the

oI.?C

day of

_________________,

1985, by a vote

of

L—/

orothy M.

Gunn,

lerk

Illinois Pollution Control Board