ILLINOIS POLLUTION CONTROL BOARD
March 11,
1993
IN THE MATTER OF:
)
AMENDMENTS TO 35 ILL. ADM.
)
R92-8
CODE SUBTITLE C (WATER TOXICS
)
(Rulemaking)
AND
BIOACCUMULATION)
)
ORDER OF THE BOARD
(by 3.
C. Marlin):
On February 3,
1993,
the Board received a motion to stay the
proceedings in this matter.
This motion was filed on behalf of
the Illinois Steel Group
(ISG), Acme Steel Company, Commonwealth
Edison, LTV Steel Company, and UNO-VEN Company
(joint movants).
On February 16,
1993,
the proponents--Sierra Club, Lake Michigan
Federation, McHenry County Defenders,
and Citizens for a Better
Environment
(joint proponents) ——filed
a response in opposition to
the motion to stay.
On February 22,
1993, the Illinois
Environmental Regulatory Group
(IERG)
filed a motion to be added
as a signatory to the motion to stay the proceedings.
Additionally, IERG’s motion contains new statements
in support of
the motion to stay the proceedings.
On February 23,
1993,
the joint proponents filed a response
in opposition to IERG’s motion to stay the proceedings.
On
February 24,
1993, the Illinois Environmental Protection Agency
filed a response in opposition to the joint movants’ motion to
stay the proceeding.
Also on February 24,
1993, the Chemical Industry Council of
Illinois filed a separate motion to stay proceedings with “agreed
with and subscribed
tOtt
joint movants’ original February
3
motion.
Finally, on February 24 the joint movants filed a reply
to the proponents’ response to the joint movants’ motion to stay
the proceedings and a request from GE Chemicals Inc. to join the
motion to stay.
The Board had originally planned to address the motion to
stay at its February 25 meeting, as hearings had long been
scheduled to continue on March 4,
1993.
However,
given its
receipt of three filings late in the afternoon of February 24,
and the unusual number of hotly contested complex matters in
which decision was required to be reached on February 25, the
Board did not reach the merits of that motion on that day.
Instead, the Board’s February 25 order reserved ruling on all
motions, but ordered hearing to proceed on March 4—5.
As the hearings were not delayed, and no prejudice to the
participants or to the Board’s deliberations have occurred as a
result of the February 24 filings, the Board denies the
proponent’s February 23 motion to strike IERG’s February 22
motion to stay.
IERG’s February 22 motion and GE Chemical’s
01 ~0-O129
2
February 24 motion to join in the previously filed motion to stay
are granted.
However,
for the reasons stated below,
all motions
for stay are denied.
This docket will proceed.
All movants for stay request that hearings be held in
abeyance pending completion of two actions
1) the decision of the
Illinois Supreme Court in Granite City Division of National Steel
Co.. et al v.
IPCB,
Docket 72850,
and 2)and adoption by USEPA of
guidance implementing the Great Lakes Water Quality Initiative
(GLI).
The Granite City Ai~peal
The Granite City appeal challenges the water toxics rules
adopted by the Board in R88-21(a) and
(B).
The matter was fully
briefed to the Illinois Supreme Court in July,
1992, and argued
in September,
1992.
The case is still under advisement.
The appeal concerns, among other things, the validity of
narrative water quality standards and provisions
for mixing
zones.
The proposal in this docket seeks to amend those rules.
Consequently, the movants believe it would be an “unwise use of
the Board’s time and resources” to proceed with this proposal,
noting that the Board would be required to open yet another
regulatory docket in the event the rules are remanded.
(ISG
Motion February
3,
1993,
p.
5).
As the proponents point out, however, the validity of the
R88-21(A)
&
(B)
rules has been sustained by the Illinois
Appellate Court in Granite City v.
IEPA,
221 Ill.App.3d 68
(1991).
The Board continues to believe that the rules were
properly adopted.
Moreover,
as the Agency points out in opposing the stay on
this ground,
“the fact that said appeal could possibly effect
(sic)
certain existing regulations with some relationship to
proponents present regulatory proposal is not a sufficient
justification for stay” given that “the proponents regulatory
proposal should stand on its own regardless of whether any other
regulatory proposal dealing with or affecting the same sections
is filed with the Board during the course of this proceeding”.
(Agency Response,
#.
4,
5).
The issues involved in the Granite City appeal are a mere
fraction of the issues raised in the instant regulatory proposal.
The Board notes that,
even following the March 4-5 hearings, the
proponents have not finished answering the over 300 questions
prefiled by all proponents in this proceeding concerning the full
scope and intent of the proposal.
The Board sees no reason to
postpone further elucidation of the proposal as a whole.
In the
event that any portion of the R88—21 rulemaking is remanded to
the Board for action, the Board will then determine whether
01L~O-O130
3
consolidation or severance of dockets
is the most practical
method of consideration of any related issues.
GLI Guidance
The second asserted justification for stay is the USEPA’s
still-continuing development of guidance to supplement the Great
Lakes Water Quality Initiative.
As IERG points out:
In further support of the Motion to Stay
Proceedings, IERG states that in 1990,
the
U.S. Congress passed the Great Lakes Critical
Programs Act,
33 U.S.C. S1267 ~
seq.
(1990).
The Act directs the USEPA to publish proposed
GLI Water Quality Guidance for water quality
standards and implementation procedures by
June 30,
1991, and to issue final guidance to
the state by June 30,
1992.
The states are
directed to adopt standards and procedures
consistent with the guidance within two years
after publication of the final guidance.
.~
Exhibit “A”.
The deadlines of the Great Lakes Critical
Programs Act
(June 30,
1991 and June 30,
1992) have both passed without USEPA
promulgating final guidance.
In September,
1992, the USEPA completed an initial review
of the draft guidance and forwarded it to the
Office of Management and Budget for pre-
publication review.
As indicated in the
joint-movants’ Motion to Stay Proceedings,
Federal Register publication could occur
in
April,
1993.
IERG is unaware of a final
publication date for guidance to the states.
The USEPA has also received a draft
scientific analysis of four technical
guidance documents used to develop water
quality criteria in the Great Lakes Basin,
entitled,
“An SAB Report: Evaluation of the
Guidance for the Great Lakes Water Quality
Subcommittee of the Ecological Processes and
Effects Committee and the Drinking Water
Committee of the Science Advisory Board
(“SAB
Report”).
See Exhibit “B”.
The SAB Report
is the result of an “extensive charge” from
EPA Region V asking for a review of “aquatic
life,
wildlife, and human health criteria
guidance and a new approach for assessing
ORO-0 131
4
bioaccumulation”.
The SAB Report
is, inter alia,
a critique of
the science supporting the current draft of
the guidance documents; IERG submits that it
would conserve the resources of the Board and
all those with an interest in the outcome of
this instant rulemaking to delay R92-8 until
such time as questions concerning the science
of the GLI highlighted in the SAB Report are
resolved via the public notice and comment
period and USEPA’s final publication of
guidance to the states.
(IERG Motion,
par.
5—
9)
The joint movants generally believe that the Board should
conserve its own resources, and those of all participants, and
wait until USEPA adopts the final version of its guidance before
amending the existing Illinois rules.
They believe that:
Waiting will give the public the chance to
fully debate the new concepts and issues
raised by the Great Lakes guidance.
Since it
is clear that they will be subject to debate
in the wider forum of the entire Great Lakes
area,
it would be precipitous to decide them
as a matter of Illinois law after receiving
input only from Illinois sources.
(ISG
Motion, par.
6)
Joint movants also question application of regulations derived
from the GLI guidance to areas in Illinois outside of the Great
Lake Basin.
In its response, the Agency states:
The Agency believes that any person has the
right to file a regulatory proposal under the
provisions of the Illinois Environmental
Protection Act and the Board’s rules and
regulations.
The Agency also believes that,
if the proceeding were to continue,
the
proponents should be required to provide
independent justification for the use of the
concepts and criteria contained in the early
draft of the GLI that has not been subjected
to peer review or public notice.
Furthermore, the Agency believes that the
proponents should be required to provide
specific justification for the use of those
concepts and criteria for the waters of the
State outside the Great Lake Basin,
Finally,
Ol’~O-O132
5
the Agency believes that any proponent must
be able to provide the proper justification
for all other aspects of a proposal.
(Agency
Motion,
par.
3)
The rule’s proponents assert that R92—8 looks to the GLI for
only a limited purpose, and that the GLI process includes many
matters not necessarily germane to this proceeding.
They note
that:
Although some of the methodologies proposed
by the joint proponents are also proposed by
GLI.
The methods were derived from U.S. EPA
1986 guidance,
“Quality Criteria for Water
1986
(EPA 440/5—86—001),” and are already
substantially in effect in several Great
Lakes states,
including Wisconsin.
Contrary to the joint movants’ position, the
GLI methodology is not radically new or
different.
The methodology for setting
bioaccumulation factors in R92-8 is based
upon long-standing and established methods
from the Gold Book and are substantially
similar to the methods used in Wisconsin,
Indiana and Michigan that have been debated,
reviewed negotiated and finally incorporated
into the GLI.
The methodology proposed by the joint
proponents for developing formulas to
determine bioaccumulation factors was
developed by state and federal water
standards experts,
in cooperation with non-
governmental participants for the Great Lakes
Water Quality Initiative in recognition that
current water quality standards fail to deal
adequately with the long—term chronic effects
of persistent toxic chemicals.
Whether or
not the formula is ultimately adopted as
federal guidance through the GLI is
irrelevant,
because under the GLI, state
regulations that produce similar or better
results than federal guidance would be
allowed to stand in any case.
(Proponents’
Response to ISG, par.
5—7)
As to IERG’s additional argument that the SAB report justifies a
delay in this proceeding, the proponents argue that:
the SAB report notes that the
“.
.
.BAF
(Bioaccumulation factor) procedure is more
a
1I.~13-O
133
6
advanced and scientifically credible than
existing BCF procedures”.
The SAB report
endorses the concept of BAF.
Any issues or
questions about the BAF methodologies in the
R92-8 proposal that are raised by this report
would appear to be proper subjects of
discussion in these proceedings.
Only by
going forward with these proceedings can the
Board give full consideration to all of the
scientific evidence.
A stay of these
proceedings would certainly not accomplish
this goal.
The Board should deny IERG’s
motion to stay.
(Proponents’ Response to
IERG,
par.
4)
The Board notes that this record contains no indication as
to when final USEPA action--already overdue-—could occur.
While
the Board appreciates joint movants’ desire to avoid duplication
of effort at the state and federal levels,
it is also the Board’s
long experience that federal action may often be delayed for
reasons which do not relate to Illinois concerns, and that to
find that the Board
is effectivly “preempted” from considering
regulation in an area which is also under scrutiny may
unacceptably delay resolution of Illinois issues.
1
The Board
concurs with the belief of the Agency and proponents that the
proponents should be afforded the opportunity to make
a record
concerning any need and justification for regulatory change.
While the Board appreciates the participants’ concerns about the
possibility of multiple dockets on different time tracks, the
Board again notes that we will carefully assess case management
needs
if and when the situation arises.
Again, the motions to stay are denied.
Hearings will
proceed in this docket,
IT IS SO ORDERED.
1
One example is regulation of non—hazardous waste
landfills.’
See R88—7,
In the Matter of:
Develornnent Operating
and Reporting Requirements for Non—Hazardous Waste Landfills,
Opinion p.
43-52
(February 25,
1988)
and Opinion p.
26-28
(March
1,
1990).
a
i
I3~
7
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above order was adopted on the
//~7—day of
_____________________,
1993, by a vote of
~.
0
IL~O-U
135
Control Board