ILLINOIS POLLUTION CONTROL BOARD
May 5,
1994
IN THE
MATTER
OF:
)
)
Amendments to 35
I...
Adm.
Code 302.302,
302.208, 302.212
)
R94—3.
302.213,
302.407, 304.122 and
)
(Rulemaking)
304.301
(Ammonia Nitrogen, Lead
)
and Mercury)
)
ORDER
OF THE BOARD
(by C.
A. Manning,
R.
C. Flemal,
E. Dunham)
On February 24,
1994, the Illinois Environmental Protection
Agency (Agency)
filed a regulatory proposal as part of its
mandatory review of the applicable water quality standards of the
State of Illinois pursuant to
33 U.S.C.
§S 1251—1387
(1987).1
The Agency filed the proposal pursuant to Section 27 of the
Environmental Protection Act
(Act)
and the Board’s procedural
rules at 35 Iii.
Adiu. Code
SS
102.120 and 102.121.2
(415 ILCS
5/27
(1992).)
Pursuant to Section 28.2 of the Act and the
Board’s procedural rules at 35
Ill. Adm. Code § 102.121(e)
the
Agency certified that the proposed rulemaking is needed to
fulfill the requirements of the Federal Clean Water Act and
therefore was federally required.
(415 ILCS 5/28.2
(1992).)
However, the Agency only certified to part of the proposed
rulemaking and did not include a written confirmation letter from
the United States Environmental Protection Agency (USEPA).
Based
on the Agency’s proposal and certification, the Board on March
17,
1994, rejected that the rulemaking was federally required.
The subject of this Order
is the Agency’s motion to reconsider
that determination which was filed on April 11,
1994.
In its motion for reconsideration the Agency states that the
entire rulemaking is federally required.
Additionally, the
Agency attaches to the filing the confirmation letter from USEPA
Region V.
The USEPA confirmation letter states that the proposed
changes for the ammonia, mercury and lead standards would address
the inconsistencies of the current State law to the Federal Water
The Federal Water Pollution Control Act commonly know as the Clean
Water Act
(CWA)
SS 101—607 requires the Agency to periodically,
but at lea8t
every three years,
review the water quality standards applicable in that
State.
The Agency refers to this as the “Triennial Review.”
2
The Agency
is proposing to
amend
35 Ill. Adm. Code SS 302.302,
302.208,
302.212,
302.407,
304.122 and 304.301 to update the ammonia nitrogen,
mercury and lead general water quality standards,
secondary contact
and
indigenous aquatic life standards and other applicable regulations.
In
addition, the Agency is proposing to add a new section 35
Ill. Adm. Code
302.213 entitled “Effluent Modified Waters.
2
Pollution Control Act (FWPCA).3
(33 U.S.C.
§1313(c) (2) (A) and
§1313(C)(2)(b).)
The confirmation letter also states that the
proposal would be consistent with the FWPCA and federal
regulations.
The Agency argues that in order to effectuate the
required rule changes, the amendments to 35 Ill. Adm. Code
304.122 and the addition of 302.213 are also required.
The
Agency therefore concludes that the entire regulatory proposal is
federally required.
The Board received three responses to the Agency’s motion
for reconsideration.
The responses were filed by B.F. Goodrich
Company, the Illinois Association of Wastewater Agencies on April
25,
1994,
and by the Illinois Environmental Regulatory Group on
April
26,
1994.
Generally the responses make three arguments:
that there is no basis to grant the Agency’s motion for
reconsideration citing to Atlanta Meadows.
LTD and R.O.C.G.G.P.
Corp. Partner v. Illinois Environmental Protection Agency (March
17,
1994),
PCB 93-72; that the Board in making this determination
must independently verify, based upon the “record”, that the
proposed rule is federally required, as established in RACT
Deficiencies Amendments to 35
Ill. Adm. Code Parts 211 and 215
(May 10,
1990), R89-l6(a); and that even if the proposed rule is
federally required the Board must weigh the economic
reasonableness and technical feasibility of the proposal.
We will grant the Agency motion for reconsideration.
As
argued by those responding to the Agency’s motion, the Board must
independently verify, based upon the record, whether a proposed
rule is federally required.
The USEPA’s confirmation letter
submitted with the Agency’s motion for reconsideration is
evidence in this record, albeit new, addressing whether the
proposed rules are federally required.
We are persuaded by this
new evidence, and find that these proposed rules are federally
required.4
In addition, the language of §101.246,
“...the Board
will consider factors including,
but not limited to, error in the
decision and facts in the record which are overlooked” does not
limit the Board in its consideration.
Finally, we also agree
that pursuant to our ruling in RACT Deficiencies Amendments the
Board should consider in adopting this type of rule the economic
reasonableness and technical feasibility.
Therefore, based on the record before the Board, the
proposal will be accepted as federally required.
Pursuant to
~
The
FWPCA
is also know as the Clean Water Act(cWA).
(40 C.F.R.
§131.11(a) (1)
and
(2).)
Additionally,
we note that in Atlanta Meadows the Board was
determining a motion for reconsideration of
a Board’s final order that clearly
is appealable.
Here,
we have a motion for reconsideration of a Board’s
interim order
in
a rulemaking which was not dispositive of the ultimate matter
before the Board.
3
Section 28.2 of the Act that the first notice of the proposal
shall be submitted for publication in the Illinois Register as
expeditiously as is practicable, but in no event later than six
(6) months from the date of this order.
For the above stated reasons, we grant the motion to
reconsider and accept the Agency proposal as a federally required
rule pursuant to Section 28.2 of the Act.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
B~aj~d,hereby certify that the above order was adopted on the
~Y~-
day of
______________,
1994, by a vote of
______
~
Dorothy N. *nn,
Clerk
Illinois P~JlutionControl Board