ILLINOIS POLLUTION CONTROL BOARD
September 17, 1992
IN THE MATTER OF:
)
TOXIC AIR CONTAMINANTS LIST
)
R90-1(A)
(35 ILL. ADM. CODE 232)
)
(Rulemaking)
SUPPLEMENTAL OPINION OF THE BOARD (by 3
•
C. Marlin):
On September 2, 1992 Ford Motor Company (Ford) filed a
comment on the June 4, 1992 second notice opinion in this
proceeding. The final opinion and order, adopting the same rules
concerning which Ford filed comments, issued on the morning of
September 3, prior to distribution of the comment. The Board has
deferred the filing of these rules with the Secretary of State in
order to address some aspects of Ford’s comment.
The substance of Ford’s comment is that the second notice
opinion mischaracterized its position on the Federal Hazardous
Air Pollutant (HAP) list and failed to address its comment of
December, 1991 (PC 48) regarding the listing/delisting process.
Ford goes on to:
request that the Board delay further action on this docket
until the State of Illinois properly addresses these issues.
Ford believes it has raised several substantive arguments
and questions in the December 6, 1991, submittal which merit
the attention of the State of Illinois.
Further, Ford believes that the public comment period is
meant to resolve any substantive issues and questions
pertaining to the proposed rules, and avoid future
litigation and appeals after promulgation. We would
appreciate some explanation or analysis of the basis for
rejection of the substantive comments Ford submitted
previously.
At the outset, the Board agrees with Ford that the public
comment period is intended to help the Board to resolve any
substantive issues or questions. The public comment period in
this proceeding ended March 30, 1992. The Board’s June 4, 1992
opinion and order authorized submission of a set of proposed
rules to the Joint Committee on Administrative Rules (JCAR) for
its review. The rules were received by JCAR on June 17, 1992.
Section 5.01(b) of the Administrative Procedures Act (Ill. Rev.
Stat. 1991, ch. 127, par. 1005.01(b)) provides that “(a)fter
commencement of the second notice period (i.e. JCAR’s receipt of
rules), no substantive change may be made to a proposed
rulemaking unless it is made in response to an objection or
suggestion of” JCAR. As explained in detail in the Board’s
September 3, 1992 actions in RES 92—1 (p. 1) and the R90—l(A)
final opinion and order (p. 17), JCAR’s only objection at its
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August 11, 1992 meeting was to the inclusion of the chemical
styrene. The Board simply cannot “defer action” on rules in
response to comments received after JCAR has reviewed rules.
Ford’s September 2, 1992 comment, received three months after the
Board directed submission of rules to JCAR is untimely.
However, review of Ford’s comment leads the Board to
conclude that the users of these adopted rules might benefit from
some expansion of the Board’s discussion of the record concerning
the topics of toxicity scoring and listing and delisting
procedures. This supplemental opinion is intended to provide
this additional guidance.
HAP LIST
The Second First Notice opinion of September 26, 1991, at p.
17 and subsequently the Final opinion of September 3, 1992)
stated:
The public comments filed by the Sierra Club, Coalition
for Consumer Rights, and Chicago Lung Association (PC
56) and Ford Motor Company (PC 48) recommended adding
the Clean Air Act Amendments hazardous air pollutants
(HAPs) list to the Illinois TAC list.
Ford believes that the Board misconstrued its comment and
asserts that “Ford was not requesting the list to be enlarged,
but to regulate only the HAPs listed in the Clean Air Act.”
In comment 48 Ford stated:
Ford strongly recommends that Illinois Toxic Air
contaminant List Rule be revised to specifically
regulate the list of 189 hazardous air pollutants (HAP)
defined by the Clean Air Act Amendments of 1990 (CAAA).
Consistency between the federal and state legislation
would limit confusion when the new CAAA toxic
regulations come into effect.
The list in this proceeding is being developed pursuant to a
State statute. The Federal Clean Air Act Amendments were adopted
after the State Air Toxics provision became law. The two are
separate and distinct and it is not unreasonable to expect
differences in the two lists. The Federal list contains 189
chemicals, most, but not all, of which are on the State list of
263 chemicals.
The coxnmenters in PC 56 clearly wanted the entire Federal
list added to the Illinois list. In responding to Ford’s comment
they stated:
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Ford Motor Company (Ford) contends that the Illinois
Toxic Air Contaminant Rule should contain the list of
HAPs in the Clean Air Act Amendments of 1990. As
stated in our post—hearing comments, we agree that the
Illinois program would be strengthened by the inclusion
~ofthe_HAPsj.n~
th~ toxic~air contaminants~1jst.~
The Board, like Sierra Club ~
~
interpreted comment 48
to mean that Ford wanted the Federal list added to the Illinois
list. The Ford comment was ambiguous on this point. Ford has
now clearly stated its intent and the Board notes that the
language in the prior opinions does not reflect Ford’s intent.
The confusion on this point has no bearing on the outcome of
the Board’s decision to proceed with the independent Illinois Air
Toxics Contaminant List as directed by the statute. As pointed
out in the prior opinions, changes to the list may come at a
later time.
TOXICITY SCORING
Ford also commented that the second notice opinion did not
address Ford’s concerns pertaining to the listing/delisting
methodology. After reviewing Ford’s comments, the Board feels it
useful to provide additional discussion regarding the method by
which a toxicity score is determined. This method is contained
in Section 232.310 of the rule.
The method proposed by the Agency has remained virtually
intact since the amended proposal was filed with the Board in
April 1990. Over the course of this proceeding, many questions
and comments, including Ford’s, have been directed towards the
specifics of the Agency’s proposed method. Among the concerns
raised were the use of solely rat toxicity data for the acute
lethality score (e.g. Tn. at 330—331, 446—448, 470—471; PC 22 at
4), the required quality of studies evaluated (Tn. at 664—670),
and the significance of organ characterization and severity of
effects scoring (e.g. Tn. at 144—153, 325—327, 333—347). Other
concerns included inclusion of mutagenic and teratogenic effects
(e.g. Tn. at 63, 353—358, 397—402, 406, 656—657), as well as the
role of emission volume in toxicity (e.g. Trl.at 127—130, 360—
364).
These issues were addressed by the Agency witnesses in the
first four hearings of this proceeding and consumed nearly the
entire four days of testimony and questions equaling 884 pages of
transcript. At the June 25 and 26, 1990 hearings, the Agency
answered questions regarding toxicity scoring from Sierra Club,
Chicago Lung Association, Illinois Steel Group, the Illinois
Department of Energy and Natural Resources, as well as the Board.
At the September 6 and 7, 1990 hearings, the Board heard
testimony from several industry groups including Chemical
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Manufacturer’s Association, Climax Metals Company, Chemical
Industry Council of Illinois, Illinois Environmental Regulatory
Group, Illinois Steel Group, and the Chlorobenzene Producers
Association. Each of these groups expressed some concern with the
Agency’s proposed scoring method. As one result of this
te.stIn~ony,~t Age~cy~adde&reterenceto~Gc’id~Laboratory
Practices Standards for use in evaluating the quality of data in
calculating a.chronic toxicity score. In addition, a definition
of “critical gestation days” was added to clarify the minimum
length of exposure required for acceptable developmental studies
in animals. These amendments were included in the Agency’s second
amended proposal which was filed December 14, 1990. The March
21, 1991 hearing primarily addressed the Agency’s second amended
proposal. Very little testimony at that hearing was directed to
the toxicity scoring method.
Public Comments 1, 2, 4, 7, 9, 10, 11, 14, 16, 18, 27, 32,
34, 37, 46, 48, 50, 56, 57, 60, and 61 addressed the nature or
use of the toxicity scoring method. Only one public comment (PC
48: Ford Motor Company) addressed specif IC concerns with the
general scoring method after the second first notice was adopted
in September 1991 (all other public comments filed after this
time were concerned with specific chemicals). Sierra Club, in PC
56, asserts that the concerns raised by Ford. Motor Company in PC
48, “have been addressed previously by the Agency, and the
Agency’s responses can be found in the record.” (PC 56, p. 4) The
Board notes that no testimony was given at the January 7, 1992
hearing concerning specific questions with the calculation of the
toxicity score.
The Board appreciates Ford’s comments in this proceeding and
notes that the issues raised in Ford’s eight questions generally
fall into the categories discussed above. For example, concerns
regarding acute toxicity based solely on rat data was discussed
at the June and September 1990 hearings (Tn. at 330—331, 446—
448, 470-471) and in the Agency’s public comment 22. Ford’s third
question regarding the exposure time for an LC5O value may be
answered by the referral to the definition of “LC5O” in Section
232.210:
“LC5O” means the concentration in the air of a
contaminant that kills, or is estimated to kill, 50 per
cent of a population of laboratory animals where the
exDosure is brief (8 hours or less~and where the route
of exposure is inhalation. (Emphasis added)
Other comments regarding the use of acute lethality, adverse
health effects, uncertainty factors, and inhalation retention
factors were taken into consideration when the Board reviewed all
comments and testimony prior to adoption of the second notice
order and opinion.
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The Board’s decision at second first notice to retain the
Agency’s proposal was not a wholesale endorsement of the method
but rather an acknowledgement that the Agency had provided
substantive justification for the method’s use as a screening
method, rather than as a detailed risk assessment. The Board
~otes-that..~no..~substantive.amentiinents or alternatives to the
toxicity scoring method (other than those adopted by the Agency
prior to filing of their second amended proposal, see above) were
provided by any of the participants in this proceeding.
The Agency has testified that this method Is intended to be
used solely in creating the list and not to prioritize chemicals
in the control strategy (Tn. at 313). The Agency also comments
that, “(t)he purpose of the scoring procedure is solely to array
the 400—plus chemicals into a spectrum of potential hazards,
based on their ability to cause adverse health effects. This is
necessary in order to enable the Agency to identify those
chemicals whose potential hazards fit the Legislature’s
description of a Toxic Air Contaminant (i.e. causes or
significantly contributes to an inc4ease (sic) in mortality or an
increase in serious irreversible or incapacitating reversible.
(sic) illness).” (PC 22 p. 10)
The Board acknowledges the concerns raised during the
hearings and comment periods of this proceeding and recognizes
the potential for gaps in the Agency’s method. But the Board is
persuaded by the Agency’s extensive comments and testimony that
the toxicity scoring method exists as an objective screening
method to differentiate chemicals of concern from the many with
little to no hazard. However, we also recognize that screening
methods are, by nature, imprecise. Therefore, the Board crafted
these rules to contain a provision by which a chemical could be
listed or delisted using considerations outside the Agency’s
protocol. We feel that this provides a safety net for those
chemicals which might slip through. Using the listing/delisting
procedure adopted by the Board in Section 232.500, a concerned
party may introduce evidence that, among other things, the
toxicity scoring method is not appropriate for a chemical or that
studies exist which may result in a different score or require an
alternate evaluation of the chemical. It is the Board’s position
that a scientifically-defensible list of toxic air contaminants
will result from the use of a combination of the Agency’s
screening method and the listing/delisting procedure.
The Board will proceed to file these rules with the
Secretary of State.
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I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certJ~Ly that the abov su lemental opinion was
adopted on the
I7’~
day of __________________________, 1992,
by a vote of 1-c
Dorothy M.//~unn, Clark
Illinois ~llution Control Board
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