ILLINOIS POLLUTION CONTROL BOARD
January 11, 1990
IN THE MATTER OF:
TOXIC AIR CONTAMINANTS LIST
)
R90-1
(35 ILL. ADM. CODE PART 232)
)
(Regulatory)
ORDER OF THE BOARD (by J. Marlin):
On January 2, 1990, the Agency filed this proposal to list
toxic air contaminants. Proposal by the Agency, and promulga:ion
by the Board, of such a list is required by Section 9.5(c) of the
Act. The Board has docketed this proposal, and contemplates
expeditious scheduling of a public hearing as required by Section
28 of the Act. For reasons given below, the proposal is not,
however, today “accepted for hearing”.
A preliminary review of this proposal by the Board and its
staff reveals that the proposal does not conform to certain
content and drafting requirements of the Illinois Administrative
Procedure Act and implementing regulations adopted by the
Secretary of State and the Joint Committee on Administrative
Rules (as codified at Illinois Administrative Code Parts 100 et
seq. and 200 et seq.). Deficiencies range from what some may
consider to be picayune, i.e. failure to follow long—prescribed
typing formats for identations and Section—numbering, to those
which may greatly affect the substantive content of the rule.
Examples of items in the latter category include 1) a
proposed definition of carcinogens as contaminants so classified
by any one of four bodies at any time without indication of
whether and where such lists may be publicly available (proposed
Section 232.310), 2) proposed procedures for scoring chronic
toxicity which apparently rely on procedures contained in
textbooks and journal articles which cannot be incorporated into
a rule by reference and whose availability is questionable (e.9.
a 1947 journal article) (proposed Sections 232.110 and Tab~e
1). The Board notes that any uncertainty as to the identity of
the contaminants within the scope of the rule create
uncertainties as to the scope of the reporting requirements
proposed.
In some prior proceedings, the Board has attempted to
correct similar deficiencies by putting the proposal in a format
minimally acceptable for publication in the Illinois Register and
then addressing other tecl~nical matters at hearing. This process
has not worked well in complex proceedings. It inevitably leads
to amended proposals which require additional hearings and
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occasional re—noticing. In the instant matter, the Board
believes that fairness and judicious use of resources dictate
that a refined proposal be developed prior to any hearing.
The Board accordingly directs its Hearing Officer, in
consultation with its Scientific/Technical Section to prepare a
document specifying the deficiencies in the proposal, which is to
be transmitted to the Agency and entered into the record in this
proceeding. The Hearing Officer shall schedule a pre-hearing
conference pursuant to Section 27(e) to discuss revisions to the
Agency proposal with the Agency if it appears that such effort
would expedite the filing of a sufficient proposal.
The Board also notes that Section 9.5(c) of the Act exempts
rulemakings pursuant to that Section from the economic impact
requirements of Section 27(b). Since enactment of Section
9.5(c), additional economic impact requirements have been added
to Section 27(a) by P.A. 85—1048 (also known as SB1834). The
Board directs the Agency to address the issue as to how Section
9.5(c) should be construed in light of these subsequent
amendments to Section 27.
After receipt of Agency filings responsive to this Order,
the Board will, by Order, again consider this matter.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify tha~the above Order was adopted on
the
//~/
day of
~
,
1990, by a vote
of
__________
.
I
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Dorothy M,71unn, Clerk
Illinois P~llution Control Board
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