ILLINOIS POLLUTION CONTROL BOARD

August

7,

1980

IN THE MATTER OF:

)

PROPOSED RULES UNDER

)

R71—9,

R80—1

SECTION 25a OF THE

)

Consolidated

ENVIRONMENTAL PROTECTION ACT

OPINION AND ORDER OF THE BOARD

(by J.D. Dumelle):

In 1971,

a proposal was filed and docketed as R71—9 pursuant

to Section 25(a) of the Illinois Environmental Protection Act to

develop radiation standards for nuclear plants in Illinois.

Subsequently, Section 25(a) was held unconstitutional, based

largely upon the United States Supreme Court affirmance of

Northern States Power Company v. Minnesota which found federal

preemption

in the area of regulation of radioactive emissions

from nuclear power plants.

405 U.S.

1035,

92 S.Ct.

1307,

31

L.Ed.2d 576

(1972), aff’d 447 F.2d 1143

(1971).

Until

recently, no further action has been taken on R71—9.

In

1980, however, the Illinois Attorney General moved to reopen

R71—9 following the passage of the Clean Air Act Amendments of

1977 which authorized limited state participation in the

regulation of airborne radioactive emissions.

Therefore, the

Board scheduled hearings in docket

P.80—i to inquire into its

authority to regulate radiation emissions and has consolidated

that proceeding with R71-9.

Commonwealth Edison Company moved to

dismiss the consolidated proceedings, and the Board set a

briefing schedule to address two issues:

(1)

the Board’s

authority to regulate radioactive emissions pursuant to the

federal Clean Air Act Amendments and

(2)

the Board’s authority

under the newly organized Illinois Department of Nuclear Safety.

Briefs were received on behalf of the Illinois Attorney General,

Commonwealth Edison Company, Mid-America Legal Foundation,

Illinois Power Company and Citizens for a Better Environment. The

first and last of these opposed dismissal;

the others supported

it.

There have been significant changes in the area of nuclear

power generation since the R71—9 proposal was

filed.

Nine years

of research and development in an area as new as nuclear energy

has greatly added to our understanding of it.

Further,

the

events at Three Mile Island have clearly underscored the need to

look more deeply into regulations concerning the construction and

operation of nuclear power plants, and recent amendments to the

Clean Air Act have significantly changed the regulatory

relationship between the states and the federal government.

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—2—

It is in the light of these changes that the Board has been

asked to revive R71-9 and has instituted the now consolidated

P.80-i.

The briefs submitted concerning the motion to dismiss

have greatly aided the Board in determining the scope of its

jurisdiction in this area, and the Board has reached several

conclusions.

First, and most importantly, the Board has determined that

it does

in fact have jurisdiction to regulate radioactive

emissions pursuant to Section 25(a) of the Illinois Environmental

Protection Act

(Illinois Act)

Ill. Rev.

Stat.,

oh.

111—½,

par.100i et

~

and the Federal Clean Air Amendments of 1977

(Clean Air Amendments)

42 U.S.C.

7401 et

~.

The Clean Air Amendments have radically changed the powers

of the states to regulate radioactive emissions.

Congress has

now expressed an intent not to preempt all state authority to

regulate radiation from nuclear power plants and fuel

reprocessing facilities.

Therefore,

the Board’s holding in the

Application of Commonwealth Edison Company and the

Application of General Electric Company,

4PCB 445

(May 3,1972),

no longer has any vitality.

That decision was based on Northern

States Power Co.

v. Minnesota,

supra, which held that the Atomic

Energy Act preempts the states from regulating radioactive

discharges.

Without the authority to regulate radiation, the

Board reasoned that it lacked authority over any non—radiation

matters,

such as the requirement of an environmental feasibility

report, because the entire statutory scheme of Section 25(a) of

the Illinois Act which granted such authority hinged on control

of radioactive emissions.

The most relevant sections of the Clean Air Act which have

caused this change are §302(g) and §116.

A reading of these

sections and of their legislative history makes

it clear that

limitations have been set on the extent ‘of federal preemption.

Under §302(g)

“air pollutant” has now been defined to include

“radioactive (including source material, special nuclear

material, and byproduct material)

substance or matter which is

emitted into or otherwise enters the ambient air.” §116 then

provides that:

nothing in this Act shall preclude or deny the right of

any State or political subdivision thereof to adopt or

enforce

(1)

any standard or limitation respecting

emissions of air pollutants or

(2

any requirement

respecting control or abatement of air pollution;

except that if an emission standard or limitation is in

effect under section 111 or 112, such State or

political subdivision may not adopt or enforce any

emission standard or limitation which is less stringent

than the standard or limitation under such plan or

section.

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—3—

Since

no applicable standards or limitations yet exist under

sections

lii or 112, the states now have the authority to freely

regulate emissions of radioactive matter entering the ambient air

pursuant to sections 302(g) and 116.

Further, that authority may

continue after a federal standard or limitation is in effect so

long as the state regulation is no less stringent than the

federal.

The legislative history clearly supports this reading.

The

intent of Congress is explicitly set out

in House Conference

Report No.

95—564

(August

3,

1977)

at 143,

2 U.S.C.

Congress and

Administration News 1523-1524:

Under this provision section

122 of the Conference

BillJ,

radioactive pollutants,

including

source

material, special nuclear material,

and by—product

material

are covered by section 116 of the Clean Air

Act.

Thus,

any state, or political sub—division

thereof, may establish standards more stringent than

Federal, or where a Federal Standard has not been

established, may establish any standards they deem

appropriate.

Thus the provision would not preempt

States and localities from setting and enforcing

stricter air pollution standards for radiation than the

Federal Standards,

and would not follow the holding of

Northern States Power Co.

v. State of Minnesota

citation

omitted

in the context of radioactive air

pollution.

Floor debates on the Clean Air Amendments confirm this

regulatory delegation to the states

(at Congressional Record

H8665,

H8671,

H8672 and S13710,

all August

4,

1977).

In summary, the Board finds that the holdings of the

Application of Commonwealth Edison Company and the Application of

General Electric Co.,

supra,

and of Northern States Power Co.

v.

Minnesota, supra,

are no longer valid precedents,

that Section

25(a) of the Illinois Act

is no longer preempted,

and that the

Board now has regulatory power over radiation emissions,

as well

as the other applicable provisions under that section.

Second, the Board has determined that the hearings scheduled

under R80—1 have now been rendered needless, and that that part

of the consolidated proceedings should he dismissed.

The Board

finds that the Motion to Dismiss and the attendant briefing have

provided the necessary information upon which to determine

jurisdiction and that any inquiry hearings at this point would be

in the nature of superfluous oral argument.

Third, the Board has determined that given the nine years

that have passed since the proposal was filed in R71—9, and given

the great number of changes that have taken place in nuclear

development,

the proposals in R71-9 may well be out-dated.

Further,

federal regulations concerning radionuclides are,

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—4—

apparently,

in the process of being developed, and the

promulgation of such regulations will change the context of the

state/federal regulatory scheme.

Pursuant to Section 122(a) of the Clean Air Act, the

Administrator of the U.S.

Environmental Protection Agency has

added radionuclides to the list of hazardous air pollutants in

accordance with Section 112(b)(1)(A) of that act

(44 Fed.

Reg.

76738

(December 27,

1979)) and under Section 112(b)(i)(B) has 180

days to publish a proposed emission standard or not to promulgate

a standard if he finds the pollutant is clearly not hazardous.

That last step has not as yet taken place, and, therefore,

there

are presently ~o limitations on the state authority to regulate

radionuclides.

However, once federal standards are set, §112(d)(1)

of the

Clean Air Act provides:

Each State may develop and submit to the Administrator

a procedure for implementing and enforcing emission

standards for hazardous air pollutants for stationary

sources located in such State.

If the Administrator

finds the State procedure is adequate, he shall

delegate to such State any authority he has under this

Act to implement and enforce such standards.

This section in conjunction with Section 9.1 of the Illinois

Act which provides that the “Board shall adopt rules which are in

substance identical with federal regulations promulgated...

to

implement Sections...112,” may limit the power of the Board to

regulate radioactive emissions once federal standards are set.

However,

the Board

is not at this time finding that §112(d)(1) of

the Clean Air Act and §9.1 of the Illinois ~tctwill foreclose the

possibility of independent State regulation.

As of now neither

section has been triggered by the setting of federal standards.

Therefore,

the Board finds that

P.71—9 should not be

dismissed but that further proceedings are not presently

appropriate.

Time

is needed for the Department of Nuclear

Safety or any other interested proponent to develop and propose

a regulatory scheme reflecting the present state of knowledge

‘Those briefs favoring dismissal of these proceedings have

indicated that,

under section 112(d) (1) of the Clean Air Act,the

stat&s participation in regulation of radioactive discharges is

limited to developing enforcement procedures only after a federal

emission standard has been established for a hazardous air

pollutant under section 112(b)(1)(B).

However, having found that

the states now have the authority to set independent standards

under Section 116,

the Board finds that it could not have been

the intent of Congress to set up a gap in the regulatory scheme

whereby standards which are promulgated by the states pursuant to

Section 116 are suspended pursuant to Section 112 when the USEPA

lists a hazardous air pollutant, but before any federal standards

are promulgated, only to later have USEPA standards control.

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—5—

concerning radioactive emissions from nuclear power plants.

To allow for this the Board finds that proceedings in R71—9

should be stayed for a period of six months.

Fourth, the Board has determined that the Department of

Nuclear Safety

(DNS) will have no effect on the Board’s

power to adopt standards under §25(a) of the Illinois Act, and

that the act of proposing the DNS demonstrates that the intent of

both the executive and legislative branches of the Illinois

government is to have the Board exercise its powers pursuant to

Section 25(a) of the Illinois Act.

In Executive Order #3

(1980)

Governor James Thompson,

pursuant to Article V,

Section 11 of the 1970 Illinois

Constitution, proposed the creation of the DNS, which would take

over various powers and duties of the Department of Public

Health, the office of the State Fire Marshal and the

Environmental Protection Agency

(EPA)

and would have the powers

of the EPA “to the extent that such powers relate to standards of

the Pollution Control Board adopted pursuant to Section 25(a)

of

the Act”

(Section II c(1) of Executive Order Number 3).

The same

Order

(page

1,

para.2)

states that the purpose of creating DNS is

to “consolidate..,

licensing programs and insure the safer

operation of nuclear facilities.”

Further, House Bill 3614,

legislatively creating the

Department of Nuclear Safety passed the legislature and is

on the Governor’s desk.

The Bill amends §25(a) to add the

following:

The Department of Nuclear Safety shall enforce the

provisions of this section and standards,

rules and

regulations adopted by the Board pursuant thereto.

The Department of Nuclear Safety shall have the same

authority, powers, obligations and duties as the Agency

has pursuant to this Act.

(Lines 956—960).

Thus,

like the Governor, both houses of the General Assembly

have now explicitly recognized that the Board has power under

§25(a) to regulate nuclear facilities and have indicated that

it should proceed to exercise that power.

The Board,

therefore,

finds that the proposed DNS does not

alter the Board’s power to regulate radioactive emissions from

nuclear power plants, and that it is,

in fact, the intent of the

Executive and Legislative Branches of the Illinois Government

that such powers should be exercised.

In conclusion,

the Board has found that

it presently has

jurisdiction to regulate radioactive emissions.

The State of

Illinois, which has more nuclear reactors than any other state,

should begin to examine methods of regulation which can protect

the health and safety of its citizens, based upon the growing

knowledge of health risks and control technology with respect to

the nuclear power industry.

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—6—

This opinion constitutes the Board’s finding of facts and

conclusions of law in this matter.

ORDER

1.

Hearings set under R80—1 are hereby vacated,

and

that part of the consolidated proceedings of P.71—9

and P.80—i is dismissed.

2,

Proceedings

in R71—9 are hereby stayed for

a period of

6 months from the date of this

order,

that being February

9,

1981.

IT IS SO ORDERED.

I, Christan L. Moffett,

Clerk of the Illinois Pollution

Control B~ard,hereby certi y that the above Orde~wasadopted

on the ~

day of

_______

1980 by a vote of

~.O

Christan L. Mo ~

Clerk

Illinois Pollution control Board