ILLINOIS POLLUTION CONTROL BOARD

April 4, 1996

IN THE MATTER OF:

)

PROPOSED AMENDMENTS TO 35 ILL.

)

R92-8

ADM. CODE SUBTITLE C (WATER

)

(Rulemaking

Water)

TOXICS AND BIOACCUMULATION)

)

Proposed Rule.

Dismissal Order.

OPINION AND ORDER OF THE BOARD (by R.C. Flemal):

On July 21, 1992 the Illinois Chapter ofthe Sierra Club, Citizens for a Better

Environment, Lake Michigan Federation, and the McHenry County Defenders (Joint

Proponents) filed a proposal in which they asked this Board to consider adoption of a series of

amendments intended to improve the water quality of the State of Illinois. An amended

proposal was filed on June

25,

1993.

This matter has now been through several public hearings and a “negotiation” phase.

In addition, it has engendered an unusually large number of motion pleadings. Since August,

1995 this record has been under consideration by this Board.

After substantial consideration, and for the reasons given below, the Board today

declines to proceed with this proposal. The docket will accordingly be closed.

OVERVIEW

The Joint Proponents have presented a proposal that contains a range of water quality

management elements, including modification of the State’s allowed mixing and site-specific

rule policies, greater focus on controlling bioaccumulative pollutants and management of

nonpoint water pollution, and promotion of pollution prevention and watershed planning. The

expressed intent is to reduce the discharge of toxic and persistent pollutants from point

sources, establish water quality standards for pollutants associated with nonpoint sources, and

develop effective plans for limiting pollution in watersheds seriously affected by nonpoint

water pollution. (Joint Proponents 6/8/94 at 2.)’ To this end, adoption of the proposal would

‘Citation to the various pleadings in this record are in the form: author, date of filing with the

Board, and (where appropriate) page number.

significantly amend the Board’s existing water quality regulations at

Ill. Adm. Code 301,

302, 304, 306, and also would open a new Part 313 to address watershed planning.

During the first phase of this proceeding, which occurred during the first half of 1993,

the Board held five hearings2, at which the Joint Proponents explained the intent of their

proposal. Two additional days of hearing devoted to the economic impact ofthe proposal

were held in the fall of 1994. Much of the intervening period was devoted to informal

meetings organized by the Illinois Environmental Protection Agency (Agency) for the purpose

of exploring areas ofpossible common ground between the Joint Proponents and the many

other interested persons.

In the ordinary course of events, the hearings at which the Joint Proponents presented

their position would have been followed by other hearings at which the Agency, plus other

interested persons, would have made a record of their views ofthe proposal. Instead, the

Board has received motions from the Agency and several other participants requesting that

parts or all of this proposal be dismissed without additional hearings. These motions, and the

Joint Proponents response, are currently pending before the Board, and serve, along with the

Board’s own perspective and expertise, as the basis for today’s action.

PROCEDURAL HISTORY

The Joint Proponents filed their initial proposal on July 21, 1992. The Board issued an

order acceptingthe proposal for hearingon September3, 1992 after the Joint Proponents had

addressed certain deficiencies identified in an earlier Board order dated August 13, 1992. On

December 1, 1992 the hearing officer issued an order scheduling hearings on January22, March

4, and March

1993. The order also established deadlines for prefihing testimony and

questions.

The first hearing was held on January 22, 1993. After the completion of the first

hearing, the following participants filed motions requesting that the Board stay proceedings:

Acme Steel Co, et al. (2/3/93); Illinois Environmental Regulatory Group (IERG) (2/22/93); and

GE Chemicals, Inc. (2/24/93). Responses to these motions were filed by the Joint Proponents

(2/16/93 and 2/23/93) and the Agency (2/24/93). On February

25,

1993 the Board issued an

order noting its intent to proceed with the hearings as scheduled, but the Board withheld ruling

on the motions to stay proceedings. The remaining two previously-scheduledhearings andtwo

additional hearings were held on March4 and

and April 14 and 15, 1993, respectively.

On June 6, 1993 the Joint Proponents filed a motion for extension oftime to file an

amended proposal and answers to questions not addressed at hearings. The Joint Proponents

submitted an amended proposal, statement of reasons, written answers to questions, and a motion

for leave to file instanter on June 25, 1993.

The Board wishes to extend its appreciation to the hearing officer in this matter, Senior

Attorney Kathleen Crowley, for her many efforts in guiding this proceeding.

The Joint Proponents filed motions: to postpone the hearing schedule (8/11/93) and for

continuance ofthe hearing schedule (11/9/93). The hearing officer granted the Joint Proponents’

motion to defer hearings by an order dated December 10, 1993. On January 27, 1994 the Joint

Proponents filed anothermotion for continuance ofhearing until March

15,

1994. This motion

was grantedby hearing officer order dated February

25,

1994.

On March 15, 1994 the Joint Proponents filed a status report noting that meetings with

the Agency and other interested persons had not resulted in agreement, and accordingly

requested that hearings before the Board resume. By the same filing, the Joint Proponents

moved for extension oftime to file economic testimony and suggested hearing dates. This

motion was granted by the hearing officer on March 25, 1994. The Agency filed a motion for

clarification of record on April 4, 1994.

The Joint Proponents filed economic testimony and a motion for leave to file instanteron

April 11, 1994. They also filed a response to the Agency’s motion for clarification, anda

motion for leave to file instanter on April 22, 1994. The Board issued an order granting the

Agency’s motion for clarification on May

1994. Onthe same day, the hearing officergranted

Joint Proponents’ motionto resume hearing. On June 16, 1994 Joint Proponents filed technical

feasibility testimony and a motion for leave to file instanter. The hearing officer issued an order

on September 2, 1994 scheduling a hearing for September 28, 1994 to consider the technical

feasibility and economic reasonablenessof the proposed amendments.

On September 9, 1994 IERG filed a motionfor continuanceof hearing “for a rmnimuin

of90 days”. The Joint Proponents filed a response in oppositionon September 14, 1994.

Motions in support ofIERG’s request for continuancewere filed on September 14, 1994 by the

Chemical Industry Council ofillinois (dcl), the Illinois Fertilizer and Chemical Association

(IFCA), and the Illinois Steel Group (ISG). On September 12, 1994 the Agency filed a

statementthat it was preparedto proceed to hearings. However, the Agency did not specifically

object to a continuanceofhearings. On September 15, 1994 the Board denied the motionfor

continuance of hearing. Hearings on economic and technical feasibility were held on September

28and29, 1994.

In order to 

provide the Joint Proponents

an opportunity to address certain unresolved

issues, the hearing officer 

issued

an order on October 

3, 1994 setting deadlines for the

participants to file written questions, and the Joint Proponents to 

provide written answers. The

order also establishedDecember 

23,

1994 as the deadline for written 

request for hearing.

Written questions were submitted by IFCA (10/21/94),

the Illinois 

Farm

Bureau (IFB)

(11/1/94), GROWMARK, Inc. (11/1/94), IERG (1 1/1/94), and Gardner, Carton and Douglas

(GCD) (11/1/94). The Joint Proponents submitted answers to writtenquestions on December

1994. IERG filed a request for hearing on December 22, 1994 based on the contentionthat the

Joint Proponents’ answers were not responsive to many ofthe questions posed by the hearing

participants. On December 27, 1994 IFCA and CICI also filed requests for hearing. The Joint

Proponents filed their response on January 17, 1995. On January 26, 1995 the Board denied the

participants’ request for hearing to address unresolved issues and directed the hearing officer to

expeditiously schedule hearings at whichthe participants in the rulemaking other than the

proponentscould presenttestimony in response to the record made by the Joint Proponents.

Before the hearing officer could schedule any hearings pursuant to its order ofJanuary

26, 1995, the Board received a number of filings requesting additional time to prepare for

hearing and moving the Board to strike or otherwise rule on various aspects of the proposal in

advance ofany additional hearings. The filings include: IFCA’s Motion to Conform Rule to

Record and Law prior to first notice

(2/24/95);

IERG’sMotion to Strike

(3/7/95);

CICI’s Motion

to Strike (3/8/95); IFCA’s Statement in Support of Motion to Strike (3/13/95); Agency’s Motion

to Strike

(3/16/95);

IERG’s Motion to Dismiss

(5/5195);

CICI’s Motion to Dismiss

(5/9195);

ISG’s Statement in Support ofIERG and IEPA Motions to Strike and IERG Motion to Dismiss

(5/9/95); IERG Motion to Supplement Record

(5/11/95);

GCD Statement in Support of IERG

5/11/95 Motion (5/23/95); Joint Proponents’ Response to Motions to Strike/Dismiss (6/8/95);

IERG Reply to 6/8/95 Response

(6/22/95);

ISG Reply (6/22/95); IFCA Reply (6/28/95); Joint

Proponents’ Motion to File Instanter & Motion to Correct Misrepresentations (7/3/95); ISO

Response to Joint Proponents’ 7/3 Motion

(7/11/95);

Agency Response to 7/3 Motion &

Motion to File Instanter (7/17/95); GCD Response to 7/3 Motion and Motion to File Instanter

(7/21/95); and IERG Response to 7/3 Motion & Motion to File Instanter (7/24/95). It is these

filings that constitute the pending motions before the Board3.

ANALYSIS

The record in this case occupies roughlyeight feet ofshelf space (including hearing

transcripts and 94 exhibits and group exhibits), making an exhaustive summary ofthe record and

arguments here impractical.

To avoid burdensomerepetition, we will not follow our usual practice ofpresenting a

detailed outline of theproposal, followed by a detailed outline of all arguments, followed by our

analysis on each point. Instead, we will generally discuss each of the topic areas in the proposal,

discuss the various arguments for and againstcontinuing with-that-component ofthe proceeding,

and explain the reasons for our decisions.

Moreover, before looking at each topic area, it is instructive to review several general

considerations within which the Board must frame today’s decision. Among these are:

(1) The Board is, as are the Joint Proponents, heedful of our need to keep moving

forward with our efforts to maintain and foster an improvedenvironment. The Board, and the

State as a whole, is constantly reviewing strategies to this end, and pursuing those which have

the best promise. Axiomatic is that a decision to not move forward with a particularstrategy is a

decision only against that particularstrategy at this time, and not a decision against achieving

environmental progress.

~All outstanding motions to file instanter and to supplement the record associated with these

filings are hereby granted.

(2) Many of the initiatives that the Joint Proponents would have the Board mandate

under the instant proposal are under way, and in some cases well-advanced, in other arenas.

There are, for example, major pollutionpreventionprograms underway at the federal, State, and

private levels; theproblems associated with bioaccumulative substances and strategies for their

management are under continuing review by USEPA and the Agency, as well as many private

and government researchers; and illinois has already in progress a large watershed management

program. The Board must be considerate of these efforts, including consideration ofwhether

any proposal before the Board would have the net effect ofretarding rather than advancing these

initiatives.

(3) In the area ofenvironmental management ofwater, there is a particularprocess

already in place that works towards assuring that regulations arepromulgatedwhen they become

justified by new research and technology. This is the triennial review process mandated under

the Clean Water Act.

(4) Much of current environmental regulation, including most ofthe Board’s regulations,

are of the command and control variety. The Board must be mindful, however, of the strong

societal desire to give opportunity, where possible, to incentive-basedenvironmental

management.

PollutionPrevention

Proponents’ Explanation. Joint Proponents contend that the ability “to restore, maintain

and enhance the purity ofthe waters of this State Act at Section 11(b)” can be attained only ifa

search for alternativesto dischargesoftoxic pollutants becomes the standard practice. (Joint

Proponents 6/8/94 at 4.) Moreover, the Joint Proponents assert that preventing pollutionat the

source instead ofattempting to deal with it after it has been created is the only way to actually

solve the State’s environmental problems. (Testimonyof K. Greene at 4.) To this end, Joint

Proponents propose requiring that dischargers evaluate pollution prevention alternativesas a

prelude to obtaining dischargepermits. Moreover, Joint Proponents propose that dischargers to

surface waters and certain pretreaters be required to file a summary ofpollutionprevention

findings with the NPDES permitor pretreatment approval application.

Suggested Dismissal Grounds. All moving participantsargue that the pollution

prevention mandate advocated by the Joint Proponents is in conflict with existing legislation: the

1989 Toxic PollutionPrevention Act (TPP Act) (415 ILCS 85/1

et seq.)

and the 1992 Illinois

PollutionPrevention Act (IPP Act) (415 ILCS 115/1

et seq.).

IERG also alternativelyargues

that, if the Board should find that it does have authority to regulate notwithstanding these

provisions, that we should “refrain from promulgation ofregulations in the area ofpollution

prevention until such time as the General Assembly has reviewed the findings ofthe IPP Act

established PollutionPrevention Advisory Council and indicated its beliefthat action in the area

was warranted”. (IERG 3/7/95 at 25-26.)

The Board also notes that a significantportion ofthe discussion regardingthe merits of

the Joint Proponents’ pollutionprevention proposal is directed to the circumstancesunder which

the “best degree oftreatment” (BDT) standard applies to dischargers. (Agency 3/16/95 at 10-11

and 7/17/95 at 1-2; IERG 3/7/95 at 18-26 and 6/22/95 at

5-8;

CICI

5/9/95;

ISG

5/9/95;

GCD

5/23/95 and 7/3/95 at 1-4; and Joint Proponents

7/3/95

at 1-3.) Joint Proponentspostulatethat

BDT does or should apply to

~fl

persons currently dischargingcontaminants directly or indirectly

into the waters ofthe state. The Agency and the other moving participantsparse the existing

rules as requiring BDT only when a permitteddischarger requests a mixing zone or ZID from

the Agency pursuantto Section 302.201, orwhen a permitted discharger requests to integrate its

waste streamspursuant to Section 304.102 (see, e.g., Agency 7/ 17/95 at 1). The difference in

interpretation is critical if the proposal is to be adopted, since the Joint Proponents’ interpretation

would place a much larger number ofdischargers under the pollutionprevention mandate.

Decision. The issue before the Board is notwhether pollutionprevention is good or bad.

Pollutionprevention is undisputedly one ofthe most essential elements in maintaining

environmental quality. Rather, the issue is whetherthe particularpollution prevention program

advocatedby the Joint Proponents constitutes the best, most effective way to maximize the

magnitudeand consequences ofpollutionprevention.

Twopollution prevention acts, the TPP Act and the IPP Act, that are already in existence

establish a broad philosophical and operationalframework for promoting pollutionprevention in

Illinois. The 1989 TPP Act has as its stated purpose:

To reduce the disposal and release of toxic substances which may have adverse

and serious health and environmental effects, to promote toxic pollution

prevention as the preferred means for achieving compliance with environmental

laws and regulations, to establishState programs that provide high-level

attentionto toxic pollutionprevention policy initiatives, to integrate existing

regulatory programs to promote toxic pollutionprevention, and to stimulate

toxic pollutionprevention strategies by industry.

The TPP Act also created a Toxic PollutionPrevention Fund to finance activities

mandated for the Agency (Toxic PollutionPrevention Program) and the Hazardous Waste

Research and Information Center (Toxic Pollution Prevention Assistance Program). The TPP

Act further created a voluntaryprogram whereby any person could seek Agency approval ofa

toxic prevention innovationplan utilizing innovative productionprocesses.

Among other matters, the IPP Actenumerates findings ofthe General Assembly as

regards the prevention ofpollution. The findings include statements regarding the values of

pollutionprevention (i.e., “that such pollutionpreventionopportunities may offer significant

savings throughreduced raw materials, insurance and pollution control costs

“).

The

findings also note various directives to the State to help promote pollutionpreventionand to look

for pollutionprevention alternatives. The IPP Act also articulates the policy of the State as

embracingthe conceptof reducing pollutionand describes a hierarchy for differentmeans of

implementing prevention techniques; it does not, however, mandate the performance ofpollution

prevention.

The IPP Act goes on to establish the PollutionPrevention Advisory Council (Council).

The Council is charged with evaluating the adequacy ofpollution preventionprograms, to

consider other approaches to pollution prevention, and to report its findings and

recommendationsto the Governorand General Assembly. The Council is now in the process of

finalizing its recommendations, which it expectsto deliver to the Governor and General

Assembly within the next two to three months. Because the IPP specificallydirects the Council

to propose its recommendationsfor pollutionpreventionprograms firstto the General Assembly

and the Governor, the Board believes that the IPP Act clearly envisions that the General

Assembly and Governor will decide which, ifany, of the recommendations ofthe Council will

be proposed into law.

Given the active pollution prevention programs already present in the State, plus

reasonable expectation that the recommendations of the Council will provide for additional State

pollutionprevention initiatives, we believe that it would be inappropriate at this time for this

Board to entertain an independentand uncoordinatedpollutionprevention mandate.

Since the Board does not intend today to adopt the Joint Proponents’ mandatory pollution

preventionprogram, the issue of whether that program applies to dischargers subject to BDT

requirements, or to some other group, need not be addressed.

Allowed Mixing. Zone of Initial Dilution (ZID). and Bioaccuniulation

Proponents Explanation. Joint Proponents would disallow the use ofmixing where

effluents contain bioaccunrnlative chemicals, and entirely prohibit the establishment of ZIDs. in

permits. Joint Proponents assert.that allowed mixing may be appropriate for chemicals that

degrade, but is not appropriate for chemicaLs that persist in the environment or build up in the

food chain. When bioaccumulative and persistent toxicants are included in an effluent, the

contention is that their adverse effects on the ecosystem are not abated by mere dilution.

Regarding ZIDs, the Joint Proponents observe that the existing rules allow exceedence

of acute aquatic toxicity standards within a ZID. Thus, they contend that the ZID provision

permits “dead zones” within the stream. The Joint Proponents believe that prohibition of

ZIDs is necessary to protect aquatic life in Illinois waters.

As to Section 302.663, bioaccumulationis a process by which organisms in the food

chain, up to the top avian and terrestrial predators, absorb and retainwater-bornechemicals in

their tissues at greater concentrations than found in their environment. In deriving wildlife

protectionand human health criteria, the Joint Proponents have proposed the use of a

bioaccumulation factor (BAF) for a substance as a replacement for a bioconcentrationfactor

(BCF). The existing regulations for deriving water quality criteria at 35 III. Adm. Code

302.Subpart F prescribe the use of BCF, whichaccounts for uptake of pollutants into an aquatic

organism only through absorption. The Joint Proponentscontend that use of BAF, which also

accounts for uptake from food and other ingested sediment, will provide a more accurate

indication of the impact of a pollutant in an ecosystem. (Testimony ofR. Ginsberg at 5.) The

proposalalso includes procedures for deriving BAFs.

Suggested Dismissal Grounds. IERG, CICI, ISG, and GCD essentially argue that the

proposal is an improper “post-hoc” attack on the allowed mixing rules adopted in Docket R88-

21 Dockets A & B In the Matter of Amendments to Title 35 Subtitle C (Toxics Control)

(January 25, 1990 and June 21, 1990). These participants cite to the extensive record

developed in R88-21 on these points, and suggest that the testimony of Dr. Robert Ginsberg

and Glenda Daniels presented in this proceeding by Joint Proponents simply does not justify

revision of the recently adopted rules. (IERG 5/5/95 at 9-31; CICI 5/9/95; ISG 5/9/95 at 2-4;

GCD 5/23/95).

Decision. The Board finds nothing improper in revisiting even recently adopted rules

to keep pace with new research and technology. The information presented by the Joint

Proponents certainly indicates that concern has heightened over time about the effect of

bioaccumulative pollutants (see, e.g. Exh. 35-40), and as the Joint Proponents point out, the

USEPA guidance document (Technical Support Documents for Water Oualitv Based Toxics

Control, September, 1995) upon which the R88-21 rules were based, expressed some concerns

about bioaccumulative pollutants (Joint Proponents 6/8/95 at 4). USEPA has itself updated

this technical support document (TSD), issuing a revision in 1991. The March, 1991 TSD

continues to reflect USEPA concerns about bioaccumulation, as it continues to advise states to

consider this as a factor in considering whether to allow mixing.

However, as IERG points out, USEPA does continue to support use of mixing and

ZIDs and water quality management tools. In this instance, the Board finds that the Joint

Proponents’ general concerns have outpaced the availability of scientific evidence to support

their suggested approach ofan outright ban on ZIDs. Any specific concerns can be expressed

on a case-by-case, site-by-site basis under our existing rules. Moreover, while we will not

proceed to additional hearings with this portion ofthe proposal now, Joint Proponents are

reminded that all new research, emerging issues, and technological developments regarding

control of water pollution are routinely revisited in the context of the state’s federally-

mandated triennial review of its water rules. This process will continue, and will certainly

keep in focus the issues of both allowed mixing and bioaccumulation.

Biological Integrity or Biological Standards

Proponents’ Explanation. The Joint Proponents believe that Illinois’ management

programs addressing nonpoint source contamination are inadequate. They contend that the

State’s regulatory programs lack in-stream water quality standards for the various methods of

managing nonpoint water pollution. (Testimony ofS. Apfelbaum at 2.) To address this

deficiency, the Joint Proponents have proposed a new Section at 35 III. Adm. Code 302.313,

which would set forth biological integrity standards. Joint Proponents believe that such

standards are an important addition to the water quality standards as an indicator of long-term or

ecosystemiceffects on a water system. (See Joint Proponents 6/8/95 at 5, and Ex. 1-Attach. C,

L, M, and F, and Ex. 22).

Joint Proponents would also add to the Board’s water quality regulationsa narrative

standard stating that water resources of the State must be preserved, protected and restored in

their most ecologically achievablecondition. They would also require that the Agency propose

to the Board within two years of the effective date ofthe proposed amendments numeric

biological standards for Illinois water resources. The narrative standard at Section 302.313(a)

requiresthe Agency to deterntine the condition of the State’s water resources using the combined

measures ofphysical, chemical, and biological characteristics of each surface water type. The

Joint Proponents believe that the informatiOn regardingthe State’s water resources will be useful

to the Agency in developing numeric biological standards. (Testimony ofM. Ross at 10.)

Suggested Dismissal Grounds. Only the Agency has moved to strike this portion ofthe

proposal. The Agency’s challengedoes not go to lack of statutory authority, but instead goes to

the timing ofenactment of any mandate for biocriteria. The Agency believes that mandatory

biocriteria are:

premature, consideringthe Agency’s obligations to USEPA under the

Clean Water Act. They also call upon the Board to mandate that the Agency

devote considerable resources to aspects of the biological standards development

that may prove inconsistent with program requirementsestablished pursuantto

the Clean WaterAct.

The federally mandated triennial review of water quality standards has been

discussed with USEPA and it was agreed that narrative biocriteria as Illinois

standards would constitute one of the goals for the next triennial review

proposal (following the pending triennial review proposal that has been

designated by the Board as R94-1). The biocriteria would be based in part on

guidance documents distributed by USEPA to aid states in establishing both

biocriteria standards and the necessary monitoring programs supportive of

biocriteria. Monitoring programs are essential in enabling the Agency to assess

compliance with a biocriteria standard as well as to establisha baseline of

ecosystem quality information. Unlike conventional standards, biocriteria

require a strong understanding of current conditions as well as what are

considered the best reference conditions in existence for a particularregion.

Subpart (a) of proposed Section 302.313 could be interpreted as directing the

Agency as to what type ofnumeric standards are intended under the mandate of

subpart (b). It could also be interpreted as directing the Agencyto gather data

rather than to regulatea certain attribute in the waters of the State. Since other

obligations such as the triennial review process are in place to assure that

Illinois has biocriteria in place in the near future, the Joint Proponents’ rule

would serve only to provide a cumbersome model to follow in the proposed

narrative standard and to set an unrealistic and perhaps unnecessary deadline for

numeric biocriteria.

(Agency

3/16/95

at 6-7).

Decision. Clearly, the Agency’sobjection is one ofresource prioritization. The Agency

has committed to USEPA that it will work towards narrative biocriteria as a part ofthe triennial

review process. As a result of thepassage of time since the Joint Proponents’ 1992 filing, the

time for the Agency to honor its federal commitmentis nearly upon us. Under these

circumstances, the Board agrees that it would be unwise for all concerned to proceed with this

portion ofthe proposal in this docket at this time. The Board expects to see an Agency

regulatory proposalmade in a timely fashion, and welcomes the Joint Proponents’ participation

in such proceeding.

Watershed Planning

Proponents’ Explanation. Joint Proponents believe that watershed planning is essential

for reducing nonpoint water pollution. The petitioners base their conclusion on the 1990-91

Illinois Water Quality Report. Overall, the intent ofthe proposal is to require the Agency “to

take the lead in developing watershed plans, and to involve other interested parties and local

governments to the greatest extent possible” in voluntary watershed planning. (Statement of

Reasons 6/25/93 at 6.)

The proposed planning requirements require watershed plans for those watersheds

found to exceed water quality standards or biological standards. The watershed plan is

intended to identify existing and potential problems and opportunities for protection and

management ofwater and related land resources, and then to develop objectives to carry out

an appropriate plan of action. Once an adversely-affected water body is identified, the

proposal requires the Agency to determine a total maximum daily load (TMDL) for the

watershed. The Agency is required to use the TMDL to determine and allocate the maximum

amount ofpollutants that may be present in the watershed and still assure compliance with

water quality standards.

In addition to determining TMDL, the proposal assigns a number of tasks to the

Agency. First, the Agency is required to issue a public notice in the affected counties; the

Joint Proponents envision that such notice will stimulate a discussion among local governments

and various public interest groups regarding reduction of nonpoint water pollution. Second,

the Agency is required to develop guidelines for the preparation of watershed plans, and

provide technical assistance and approval of plans developed by local units of government.

Third, the Agency is required to meet with units oflocal government, state and federal

agencies, and the public to facilitate their participation in the planning process. Last, the

proposed amendments assign the Agency the ultimate responsibility to ensure that appropriate

actions are taken in a timely manner to maintain quality of the State’s water resources.

Suggested Dismissal Grounds. The Agency, IFCA, IERG, ISO, CICI, and GCD each

challenge the Board’s statutory authority to adopt the ambitious planning system which the Joint

Proponents advocate (Agency 3/16/95 at

3-5;

IFCA 2/24/95 at 1-13; IERG 3/7/95 at 27-3 1; ISG

5/9/95 at 4; CICI

5/9/95;

GCD

5/23195).

This challenge does not differ in its particulars among

filings. The first ground for challenge involves the perceived inter-relationshipbetween

watershed planning and the Illinois WaterQuality Management Plan (IWQMP), which pLan falls

within the Agency’s statutory purview. The second involves past case precedent involving

invalidation ofthe Board’s attempt, made during its early years, to mandate regional wastewater

treatment in DuPage County. (Village ofSouth Lombard v. PCB, 66111. 2d 503, 363 N.E. 2d

814 (1977).)

The IWQMP argument flows from the Act’s separation of functions in Sections 4 and 5

between the Agency and the Board. Among other things, Section 4(1) designates the Agency as

“the water pollutionAgency for the state for all purposes ofthe Federal Water Pollution Control

Act”, the predecessor title for the Clean Water Act. Under the Clean Water Act, the Agency is

required to develop a continuingplanningprocess, subject to review and approval by the

USEPA, that integrates operating policies, procedures, and practices that comprisethe functional

and planning elements of the Agency’s water quality management program. (33 U.S.C.

1313.)

As part ofthat process, the Agency is required to develop a Water Quality ManagementPlan

containing the elements specified in Sections 208 and 303 of the Clean Water Act. (33 U.S.C.

§~

1288 and 1313.) Those elements include procedures for controlling point and nonpoint

sourcesofpollution, as well as development ofTMDLs for pollutants in certain waters. (33

U.S.C.

1313(e).)

The Agency is accordingly vested with the authority to create, revise, and administerthe

IWQMP. (Citizens Utilities Company of Illinois and Village of Plainfleld v. Illinois Pollution

Control Board. illinois Environmental Protection Agency. and Village of Bolingbrook,

265

III.

Aat 3d 773, 639 N.E.2d 1306, 1307 (1994).) That authority is granted to the Agency alone, and

the Board has been held to lack jurisdiction to mandate or review provisions ofthe Water Quality

Management Plan. (Jurcak, 513 N.E.2d at 1009-1010.)

The Agency and the others who forward this argument believe that:

The provisions proposed by the Joint Proponents for Part 313 are the subject

matter ofthe continuingplanning process and the Water Quality Management

Plan provided by the Clean Water Act. The Joint Proponents would have the

Board, interalia, directthe Agency on what circumstancesrequire preparation

of watershed plans, specify what is to be included in those plans, direct the

Agency on when to prepare TMDLs, and mandate that the Agency ensure

timely and sufficient development or implementing those plans. Clearly, the

Board would be outside of itsjurisdiction in imposing such requirementson the

Agency. A Board mandate that the Agency somehow “ensure” the cooperation

of units of local government in the water shed planning process is much like the

effort to adoptregulationsmandating regional water treatment in a county that

was struck down by the Illinois Supreme Court in Village of Lombard v.

Pollution Control Board, 66 ill. 2d 503, 363 N.E.2d 814 (1977). As the

Supreme Court noted in that case the legislative intent behind adoption ofthe

Act did not include “an intentto permitthe Board to compel independent

governmental entitiesto cooperate with one another.” (Lombard, 363 N.E.2d

at 816.) (Agency 3/16/95 at 4-5)

Decision. Watershedplanning, like pollutionprevention, is an environmental

management program already under substantialdevelopmentunder aegis apart from Board

regulation. In particular, both the USEPA and the Agency, under authority ofboth the Clean

Water Act and the Safe Drinking WaterAct, have major watershedplanning initiatives in

progress4.

The Board is particularly aware, as are the Joint Proponents and all persons who have

been involved in the water quality management effort, that to date most of that effort has been

directed towards control ofpointsource pollution. Moreover, it is also general knowledge that

nonpoint water pollution is both a significantand historically intractable part of the pollution

controlequation.

In spite of the problems that control of nonpoint water pollutionhave presented, the

Board believes that the current USEPA and Agency initiatives offer some ofthe greatest promise

to date, and accordingly that they shouldbe encouraged. In these circumstances, the Board

believes that it would be unwise and unfruitful to impose a separate, and not necessarily

complimentary,~watershedplanning program on top of these currentinitiatives.

Expiration Dates for Site-specific Rules (Sections 304.101 & 306.35(Y)

Proponents’ Explanatioa The Joint Proponents propose that all ofthe Board’s site-

specific rules, both current and future rules, have a maximum term of five years. In this

regard, the Joint Proponents maintain that unlimited exemption from attainment of water

quality standards is not appropriate in water quality regulations.

Suggested Dismissal Grounds The arguments ofthe proponents for the striking of this

portion ofthe proposal are summed up by the Agency:

ofthe important documents detailing the progress ofboth USEPA and the Agency in

the watershed planning arena postdate the last hearing in this matter. Because the Board

believes that evidence of the progress made is best detailed in these recent documents, the

Board both takes judicial notice of them and today enters them into the record of this

proceedings as Board exhibits. The documents are: Exibit 95, “Region 5 Water Division

Watershed Protection Approach, December

1995,

11 pages; Exhibit 96, “Mobilizing the

Watershed Community”, Agency document, Fall 1995, 11 pages; and Exhibit 97, “Watershed

Management Program”, Agency newsletter, Winter 1966, 16 pages.

If the General Assembly intended all site-specificrules and exemptions to be of

limited duration, it could have easily established such a limit as it did with

respect to variance relief. The fact that the Act instead provides for the same

sorts of considerations to apply to site-specific rules and exemptions as for rules

ofgeneral applicability indicates that the General Assembly intended that the

Board consider whether each such individual rulemaking warrants a termination

date based on consideration of the facts pertaining to that particularrulemaking.

To requireall specificrules and exemptions to expire in five years would, in

essence, convert them into variances that would not have a specific compliance

plan and that would carry the burden ofhaving to be re-justified every five

years. The impact of the Joint Proponents’ proposal would be to:

penalize dischargers that have already demonstrated that

compliancewith the general rule is economically unreasonable

and/or technically infeasible;

require the Agency to expend resources on the review of

repetitive regulatory proposals that have been previously

reviewed and found to be valid, thereby diverting Agency

staff away from actions potentially having more impact on the

environmentsuch as enforcement actions and the review of

existing standards; and

require the Board to spend more of its time dealing with

potentially frivolous matters, and would, as a result, leave the

Board with less time to devote to the more important issues of

enforcement andpromulgating general rules.

(Agency 3/16/95 at 9-10).

While IERG, supported by ISO and GCD, cites to caselaw establishing general principles

ofadministrative law and statutory construction (IERG 3/7/95 at 4-17 and IERG 6/22/95 at 1-5),

it can point to no specific caselaw which would prevent the Board from adoptingthe proposed

limitation.

Decision. The

Board fmds itself in significant agreement with 

the

position of the

Agency, as quoted above. The Board believes that there are good purposes for site-specific

rules, and that it would be damaging to the environment, rather than constructive, to exclude the

site-specific rule from the tools used in environmental management.

We do not accept, as seems implicit in the Joint Proponents’ challenge to site-specific

rules, the assumption that a site-specificrule is by its character a lesser rule or a “pass”. A site-

specific rule is only a rule tailored to the specific circumstances faced by a discharger, and

therefore differentfrom the rule applicable under other circumstances. The whole principle

underlying site-specific rules is that there will be circumstances where “one-size doesn’t

fit

all”.

We continue to believe this is a legitimate principle, and that discretionateuse of site-specific

rules is beneficial.

Since we do not intend to eliminate all of our adopted site-specific rules, there is no need

to address the issue ofwhether the Board possessesthe authority to so do. Suffice it to say, we

believe that the Board is vested with substantial rulemaking authority. We also note that ~

person has the authority to 1) propose limitations on any site-specificrule now in force, andto

provide support for specificterminationdates, and 2) suggest specific terminationdates in site-

specific rules proposed to the Board by others. The merits of any site-specificrule are thus

reviewable at all times at the instigationof interested persons generally.

CONCLUSION

For the reasons stated above, the Board will not proceed with the amendments to the

Illinois water quality regulations proposed by the Joint Proponents in this docket.

The Board emphasizes that ongoing programs ofthe State agencies, such as the IEPA,

DNR, and DCCA, plus the overview of the Natural Resources Coordinating Council, are

designed to address many of the concerns brought forth in the instant proposal. While the

Board today concludes it is unwise to move forward with this proposal, the Board nevertheless

recognizes that it may well be necessary to reassess this position after sufficient time and

opportunity have been given to these various programs to prove their merit. Should regulatory

processes or structures or even mandates need to be developed in the future in any ofthese

areas, the Board, as always, stands ready to entertain proposals for such from any of the State

agencies, from any interest group, or on the Board’s own motion.

ORDER

This docket is hereby closed.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk ofthe Illinois Pollution Control Board, hereby certify that the

above opinion and order was adopted on the

_____

day of

1996, by a vote

of7O_.

Dorothy M,i9(inn, Clerk

Illinois Polh&Iion Control Board