ILLINOIS POLLUTION CONTROL BOARD
January 23,
1992
IN THE MATTER OF:
)
TOXIC AIR CONTAMINANTS LIST
)
R90-1(C)
(35 ILL.
ADM. CODE 232)
)
(Rulemaking)
ORDER OF THE BOARD
(by J.C.
Marlin):
This
matter
is
before
the
Board
on
motions
filed
by
the
Illinois Environmental Regulatory Group
(IERG)
and the
Illinois
Steel
Group
(ISG)
on
December
12,
1991
requesting the
Board
to
determine whether
an economic
impact statement
(EcIS)
should be
performed in this subdocket.
The Illinois Department
of Energy
and Natural Resources
(IDENR)
filed its comments on the necessity
of
an
EcIS
on
December
12,
1991
and
followed
with
additional
comments on January
16,
1992.
The motions request
the Board to order
IDENR to prepare
an
EcIS as the record presently before the Board considering reporting
by
emission
sources,
does
not
contain
sufficient
economic
information
concerning
its
costs.
IERG
argues
that
proposed
reporting requirements are not exempt from the EcIS determination
requirements
of the
Act.
IERG
believes, that
an
EcIS
would
be
beneficial
and
would
likely
demonstrate
the
high
cost,
if
not
technical impossibility,
of the reporting requirement included at
Section
232.410
of
the
Board’s
second
first
notice
opinion
and
order.
IERG
states that it intends to submit economic information
to the Board at merit hearings on the reporting requirements.
The
ISG motion
argues that the proposed rule will require
testing and monitoring of an intensity and detail far in
excess of
that
presently
required
by
the
Agency
under
its
air
permit
programs.
The ISG states that the proposed reporting requirement
is
not
the
same
as that
in the current air
rules
because
as
a
matter of practice, the Agency has only required the identification
of
“specified
air contaminants”,
and that
the Agency
would
not
consider toxic air contaminants to be specified air contaminants.
The ISG states that the proposed rule will require an applicant to
monitor and sample every single emission and test for the presence
and amount of all 266 listed toxic air contaminants.
The ISG also
argues that there
is no indication that USEPA will require this
level of detail as part of its air toxic program.
The IDENR states that the proposed reporting requirements do
not impose,
in and of themselves,
a significant economic burden as
they
are
“congruent”
with those
reporting
requirements
already
required for new permit or permit renewal applications.
The DENR
points out that the participants will have ample opportunity to
supply economic information
at hearing,
delineating any
extreme
technical difficulties and unreasonable economic costs assoQiated
129—371
2
with the proposed rules.
At hearing, DENR argues, the Agency will
also have an opportunity to explain its present practice concerning
reporting by sources of specified air contaminants.
The Board begins by pointing out that
its obligation under
Section 27 of the Act
is not to order an EcIS whenever a rule
is
determined to have
an economic cost,
as some of the participants
argue,
but
to
exercise
its
judgment
whether
such
a
study
is
necessary.
Factors the Board
is to consider include:
“the
potential
economic
impact
of
the proposed
rule,
the
potential for consideration of the economic impact absent such
a
study,
the
extent,
if
any,
the board
is
free under
the
statute authorizing the
rule to modify the substance of the
rule based upon the conclusions of such a study, and any other
considerations the Board deems appropriate.
Ill.
Rev.
Stat.
1989,
ch.
111 1/2, par.
1027(a).
The Board may, prior to the close of the record, order such a study
be performed if
a substantial modification or information
in the
record indicates
it would be advisable.”
Id.
The Board
stands by
the reasoning
contained
in
its second
first notice opinion and order that just as the Agency’s air permit
program could not operate without information concerning emissions,
no toxic air contaminant program could either.
Indeed, IERG admits
that reporting may be a desirable precursor to the control phase.
Though the ISG and IERG protest that the Board-proposed reporting
requirement, despite its substantial similarity to that presently
contained in the Board’s air permitting rules,
(35 Ill. Adm.
Code
201.152,
157) will have an enormous economic impact upon industry,
this record does not reflect
it.
Only the parties’
briefs have
suggested that an EcIS
is necessary.
The Board notes that it has
previously
separated
the
proposed reporting
requirement
into
a
separate subdocket so that its merit could be fully evaluated even
as the list,
Docket
A,
was being adopted.
The Board recognizes
that
future
hearings
on
the
proposed rule
may
demonstrate
the
necessity of preparing an EcIS.
The Act concedes as much.
Should
the
record
indicate
its
necessity
the
Board
will
order
the
preparation of an EcIS.
to collect.
Having made its decision not to require the preparation of an
EcIS at this time, the Board directs the hearing officer to allow
testimony regarding the economir~impact of the proposed rule, to be
presented in at least one hearing.
It is anticipated that at that
time,
the
Agency
will
present
testimony’ as to how
its
current
permitting process works regarding the collection of this type of
information.
It
is also hoped that ‘the Agency would clarify its
statements as to whether toxic air contaminants will be considered
“specified air contaminants” or
if not, why not.
129—372
3
In conclusion then the Board presently denies the requests to
Drder the preparation of an economic impact study but directs the
~iearingofficer
to
schedule
at
least
one hearing regarding the
~cononiicsof the proposed reporting requirement.
IT IS SO ORDERED.
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certi
that the above Order was adopted on the
______
~ay
of
,
,
1992, by a vote of
~
£~
Dorothy M.4~unn,Clerk
Illinois ~l1ution
Control Board
12 9—373