ILLINOIS POLLUTION CONTROL BOARD

June 21, 1990

IN THE MATTER OF:

)

SOWA UPDATE; USEPA RULES

)

R90—4

(7/1/89 THROUGH 12/31/89)

)

(Rulemaking)

ORDER OF THE BOARD (by J. Anderson):

On May 24, 1990, in P.88—26, pursuant to Sections 7.2 and

17.5 of the Environmental Protection Act (Act), the Board adopted

regulations which are “identical in substance” with United States

Environmental Protection Agency (USEPA) regulations implementing

the Safe Drinking water Act (SDWA). On June 7, 1990, the Board

granted a motion filed by the Illinois Environmental Protection

Agency (Agency) to extend the post—adoption comment period

through July 17, 1990. The “identical in substance” rules

adopted in P.88-26 consist of a new 35 Ill. Adm. Code 611. R88—26

included USEPA rules adopted through June 30, 1989.

The Board has reserved this Docket as the first update

Docket for the SDWA rules. Pursuant to Section 7.2(b) of the

Act, the Board normally “batches” USEPA actions during a six—

month period for adoption as Board rules. Board action is

required within one year after the first tJSEPA action during the

batch period, unless the Board enters an “extension of time”

order, and publishes the “reasons for delay” in the Illincis

Register. This Docket was to cover USEPA actions during the

period 7/1/89 through 12/31/89.

Part 611 is derived from 40 CFR 141. There was only a

single amendment to that Part during this batch period. This was

at 54 Fed. Reg. 29998, July 17, 1989. The due date for action on

this Docket is therefore July 17, 1990, unless the Board enters

an extension of time Order.

The amendment concerns the incorpora:ion by reference of

certain journal articles concerning coliform tests. The

incorporation occurs in 35 Ill. Adm. Code 611.102, and is

discussed on page 30 of the May 24, 1990 Opinion in P.88—26.

As was discussed in the P.88—26 Opinion, these journal

articles, including the additions in the July 17 Federal

Register, cannot be incorporated by reference under the Illinois

Administrative Procedure Act (APA). The APA authorizes the

incorporation 5y reference “standards and guide:.ines”, but not of

journal articles. Furthermore, th~e American Society of

Microbiology does not make copies of the articles available to

112—471

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the public. Moreover, the articles are.descriptions of the

results of field trails of new methods for colifor.m analysis.

They do not include a description of the

methods

themselves such

that a person could read the articles and perform the tests. As

such, they are not “standards or guide1ines~’ in any sense of the

terms, and are..not even useful in the rules. The Board therefore

dropped the references from P.88—26. For the same reasons, there

is no need to add the references from the July 17, 1989 Federal

Register, which is the subject of this Docket..~ The Board will

therefore dismiss this Docket.

There is still a possibility of

reconsideration. ~..nP.88—26.

However, this will not occur before July 17, which :is ~ls.othe

due date for any action on this rulemaking.

~If

reconsideration

should affect the issue which is the subject of th,i:s Docket, the

Board will address the July 17, 1989, Federal R’egi~.te.r in P.88—26,

rather than reopen this Docket.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Order

was adopted on

the

~

day of

_____________

,

1990, by a vote of

________

/2~~

Dorothy M.

•Gun!i~

Clerk

Illinois Pollution Control Board

112—472