ILLINOIS POLLUTION CONTROL BOARD

January 26, 1995

IN THE

MATTER

OF:

)

)

PROPOSED AMENDMENTS TO 35 ILL.

)

R92-8

ADM.

CODE SUBTITLE C

(WATER

)

(Rulemaking-Water)

TOXICS

& BIOACCUMULATION)

ORDER OF THE BOARD

(by R.

C.

Flemal):

This matter comes before the Board on the following filings:

December 22 and 27,

1994 requests for hearing filed separately by

the Illinois Environmental Regulatory Group

(IERG)

and the

Illinois Fertilizer and Chemical Association (IFCA);

a December

27,

1994 statement in support of the IERG request filed by the

Chemical Industries Council of Illinois

(CICI); and the January

17,

1995 motion for leave to file instanter and response in

opposition filed by the joint proponents, the Sierra Club of

Illinois, the Lake Michigan Federation, Citizens for a Better

Environment, and the NcHenry County Defenders (joint proponents).

The joint proponents’ motion for leave to file instanter is

granted.

PROCEDURAL BACKGROUND

The IERG and IFCA hearing requests were filed consistent

with the hearing officer’s order of September 30,

1994.

In that

order, the hearing officer explained that:

At the close of the September 28—29,

1994

hearings,

...

the joint proponents stated that

there was nothing more they wished to present

in support of their proposal, absent order of

the Board.

The

hearing officer

stated that

in the ordinary course, our next step in the

process would be the scheduling of hearings for

testimony and comment in response to the

proposal.

After off-the-record consultation with all

participants present, we learned that there was

some feeling that participants had had

insufficient opportunity to pose questions

concerning the June 25,

1993 amendments to the

July 21,

1992 proposal, and that answers to

questions would facilitate preparation of

testimony in response to the proposal.

The

joint participants suggested that written

questions be posed,

to which they would respond

in writing.

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2

With participants’ concurrence, a filing timetable was

established.

Consistent with the timetable, questions were

prefiled on and before November 1, 1994 by the IFCA,

the Illinois

Farm Bureau, Growmark,

IERG,

and the law firm Gardner, Carton

&

Douglas.

The joint participants filed answers on December 5,

1994.

IERG,

IFCA,

and the joint proponents filed the hearing

requests and response as detailed at the beginning of this order.

REQUESTS

& RESPONSE

The gist of the IERG,

IFCA,

and CICI filings are that the

joint proponents’:

“answers are not responsive to many of the

questions posed by the hearing participants.

Additional clarification through a verbal

question/answer process is necessary so that

the record will reflect the joint proponents’

intent and justification for the amended

proposal”.

IERG and other participants in this

rulemaking will be materially prejudiced if

required to proceed in this rulemaking absent

an opportunity to question and elicit

responsive answers from the joint proponents

concerning the substantively revised portions

of the amended proposal.

Such additional

questioning is necessary so that the record

will reflect the intent of the joint proponents

and their responses to questions regarding the

substantively revised portions of the proposal.

Proper development of this record is necessary

so that the Board can make a reasoned and

informed decision in this matter.

Additionally, such development is also

necessary to facilitate IERG’s and other

participants’ constructive participation in the

proposed adoption of rules which will

profoundly affect their interests.

(IERG

Request, Para.

7,

13; see also IFCA Request,

Para.

5-8; CICI Statement,

Para.

3.)

The essence of the joint proponents’ response concerning the

alleged inadequacy of their answers is that their June 25,

1993

amended proposal consists of deletions, typographical

corrections, and clarifying changes.

It is the joint proponents’

contention that:

These revisions were made in response to

questions and comments made during the first

five days of the seven days of hearings, and

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3

reflect a re—arrangement of some aspects of the

Joint Proponents’ proposal, rather than

substantive changes.

The Joint Proponents respectfully point

out that another hearing would not change the

Joint Proponents’

intent.

To the extent that

IERG, or CICI or IFCA, has objections to the

Joint Proponents’ position, such concerns can

be properly raised during future hearings where

testimony in opposition,

as well as in support,

can be presented.

In the course of these proceedings, the

Joint Proponents have made every effort to

provide information to assist the Board in

considering the proposed rule amendments.

The

proposed amendments to the water quality rules

were designed to limit further and eventually

eliminate the discharge of toxic and

bioaccmi~ulativepollutants, establish more

enforceable water quality criteria, and develop

effective plans for limiting pollution in

watersheds seriously affected by nonpoint

pollution.

The intent of the proposed

amendments to reduce loading of bioaccumulative

and toxic pollutants into Illinois waterways

has not changed.

The Joint Proponents do not

believe that additional hearings on the intent

of the proposal will provide substantially more

information to the Board.

(Joint Proponents

Response,

Para.

8,

10,

14)

BOARD RULING

After consideration of the participants’ arguments, the

Board finds that no useful purpose would be served by requiring

the joint proponents to appear at yet another hearing to defend

their proposal.

At the close of the September 28-29 hearings,

the joint proponents essentially “rested their case”; their

response reiterates their belief that additional hearings

concerning their intent will not provide substantially more

information to the Board.

The proponents have apparently made as

much of a record as they can, or are willing to, make given

resource constraints.

As joint proponents suggest, any remaining

concerns other participants may have concerning the sufficiency

of the proposal can be expressed during the next phase of

hearings where “testimony in opposition,

as well as in support,

can be presented.”

The Board denies the December 22 and 27 requests for

hearing.

However, the Board directs the hearing officer to

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4

expeditiously schedule hearings at which all other participants

may present their testimony in response to the record made the

joint proponents.

Once this set of hearings is complete, the

Board will determine whether first notice of any proposal, this

proposal, or some variation of it, will be published in the

Illinois Register, or whether this docket will be closed.

IT IS SO ORDERED.

E. Dunham and H. McFawn dissented.

I, Dorothy N. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that

e above order was adopted on the

_____________

day

of

_______________________,

1995,

by

a

vote

of

~

.

(I

/

*~

~

Dorothy N. ~1nn, Clerk

Illinois P~,ilutionControl Board