ILLINOIS POLLUTION CONTROL BOARD
    November 21,
    1991
    IN THE MATTER OF:
    TOXIC AIR CONTAMINANTS LIST
    )
    R90-1(A)
    (35 Ill.Adm. Code 232)
    )
    R90—1(C)
    (Rulemaking)
    ORDER OF THE BOARD
    (by 3.C. Marlin):
    This matter is before the Board on a Motion to Sever Subpart
    D of Second First Notice Proposed Rule filed by the Illinois
    Environi~entalRegulatory Group
    (“IERG”) on November 6,
    1991.
    The
    Motion concerns the Board’s second first notice proposal of the
    Air Toxics List,
    R90-1, published in the Illinois Register on
    October 10,
    1991.
    The public comment period of 45 days following
    publication expires December
    2,
    1991.
    On November,
    11,
    1991 the
    Illinois Chapter of the Sierra Club, the Coalition for Consumer
    Rights and the Chicago Lung Association filed a response
    to. the
    motion.
    The Illinois Department of Energy and Natural Resources
    filed comments concerning the motion on November 15,
    1991.
    The motion requests the Board to sever the reporting
    requirements for existing sources found in Subpart D of the
    second first notice publication and place such rules
    in a
    separate docket.
    Thereafter,
    IERG requests that the Board make a
    determination that an economic impact statement (“EcIS”)
    should
    be prepared in the new docket.
    IERG contends that Subpart D,
    as proposed by the Board, goes
    beyond the promulgation of a list of toxic air contaminants and
    thus is outside the scope of the EcIS exemption contained in
    Section 9.5(c)
    of the Act.
    Section 9.5(c),
    IERG argues,
    exempts
    only the rulemaking proceeding to promulgate this list from the
    EcIS requirement.
    Rather,
    IERG argues, the list is,
    as the Board
    put it in its Opinion in R90-l of September 26,
    1991, a
    “precursor of the control phase.”
    Because subpart D of the
    proposed rule is not part of a list and not subject to the EcIS
    exemption,
    IERG argues that the Board must determine whether an
    EcIS shou~ldbe performed as mandated by Section 27(a)
    of the Act.
    IERG submits that should an EcIS determination be made, the
    lack of economic information in the record will necessitate
    preparation of an economic impact statement.
    The Board,
    in its
    September 26,
    1991 Second First Notice Opinion and Order noted
    that under the present permitting rules the nature and type of
    information the Board wished to see reported was already
    required.
    The proposal reinforced these regulations by making
    them part of the air toxics rules as well.
    The Board’s Opinion and Order also noted that similar
    information would be required under The Clean Air Act Amendment
    as well.
    IERG disagreed
    ttthat the current practices and
    projected requirements pursuant to the Clean Air Act Amendments
    will in any way approach the rigor of the absolute reporting
    requirements proposed by the Board under Subpart D.”
    IERG states
    that it will explain the difference at hearing.
    127~297
    2
    IERG also submits that had the current proposal in Subpart D
    been under prior consideration by the Board,
    IERG would have
    presented detailed information on both the costs of reporting and
    the technical feasibility,
    or infeasibility, of such reporting.
    IERG stated that it intended to present such information to the
    Board at any future hearing on Subpart D.
    IERG submitted that
    such substantive reporting requirements would impose a “high
    cost” and in some cases be technically impossible.
    The Board quotes from its Opinion of September 26,
    1991
    regarding its reasoning in proposing this requirement:
    Industry’s concern about reporting requirements is
    cost.
    The Board notes that current permitting
    regulations require certain information to be submitted
    by applicants for construction and operation permits.
    A source must identify, as part of informational
    requirements for permitting,
    “the nature, specific
    sources and quantities of controlled and uncontrolled
    air contaminants.
    See 35111.
    Adm. Code 201.152,
    201.157.
    For purposes of these sections, “air
    contaminants”
    is defined as “any solid,
    liquid or
    gaseous matter...capable of being released into the
    atmosphere.”
    35 Ill. Adm. Code 201.101.
    Under these
    definitions toxic air contaminants would constitute a
    reportable “air contaminant” likewise.
    Similarly,
    under the new Federal Clean Air Act Amendments,
    existing major and area sources which must obtain
    permits for defined hazardous air pollutants
    (HAPS)
    must also submit information regarding their emissions
    of these contaminants.
    42 USC 7412.
    Reporting by
    existing sources,
    then,
    is not so much a question of j~
    as it is a question of when the requirement is
    satisfied.
    At hearing as to the potential costs of such a
    reporting requirement.
    Industry representatives
    testified that reporting would carry associated costs
    but did not supply any specifics.
    Post-hearing public
    comments from industry groups did not contain any new
    information which enlightened the Board.
    The Board has altered the Agency’s proposed reporting
    requirement to include reporting by existing sources at
    time of permit renewal.
    In parallel with the language
    of existing regulations, this reporting includes the
    “nature, specific source and quantity” of each TAC.
    In
    this manner, the information on emissions of toxic air
    contaminants by existing sources will be supplied as
    current permits are renewed over a five year period.
    The Board inserts this as an affirmative requirement
    in
    these regulations to ensure that the information will
    not be omitted in the future.
    (Opinion, pp.
    10-11)
    The Board’s second first notice proposal is also supported
    by the response filed by the Illinois Chapter of the Sierra
    Club/Coalition for Consumer Right/Chicago Lung Association.
    (PC
    3
    42)
    These groups state that they “remain convinced that
    reporting of emissions data is essential to establish an
    effective toxic air contaminants program”.
    They do not oppose
    the motion on the belief that the requirement is not essential to
    the listing process.
    They urge the Board, however, to consider
    promulgation of the reporting requirements prior to the Agency’s
    submission of the control program.
    The Illinois Department of Energy and Natural Resources’
    comments echo the reasoning contained in the Board’s Opinion and
    Order of September 26,
    1991.
    IDENR also concludes that because
    the reporting requirements already exist in Agency permitting
    regulatipns,
    “Subpart D would not impose any economic
    burdens.
    .
    which are not already imposed.”
    (PC 43, p.2)
    The Board decides today to remove Subpart D from the second
    first notice proposal and to place it in separate subdocket.
    The
    Board opens such docket today, R90-l(C).
    The Board believes
    removal of the reporting requirement will allow quick adoption of
    the toxic air contaminants list while preserving the issue of
    reporting by existing sources.
    These issues may be addressed in
    any hearings held under this subdocket.
    The Board takes this
    action to clear any remaining procedural impediment to the-lists’
    adoption.
    No finding is made as to the necessity for an EcIS.
    Having considered all of the above, the Board decides today
    to give notice that the reporting requirements contained in
    Subpart D of the second first notice publication will be removed
    at second notice.
    The requirements of Subpart D will be removed
    to a subdocket, R90-1 (C), which the Board opens today.
    Docket B
    has been previously reserved for the Agency’s proposal concerning
    environmental effects.
    IT IS SO ORDERED.
    3.
    D. Dumelle dissented.
    I, Dorothy N. Gunn,
    Clerk of the Illinois Pollution Control
    Board,
    hereby certify that the above
    Opin~Lox~
    and Order was
    adopted on the
    _____________
    day of ________________________
    1991 by a vote of
    ________________.
    C
    V
    (:7
    ~orothy
    M. dunn,
    Clerk
    Illinois Pth~lutionControl Board
    127—299

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