ILLINOIS

POLLUTION

CONTROL BOARD

December

6, l98~

IN THE MATTER OF:

PROPOSED AMENDMENTS TO T1TL

)

R88-21,

DOCKET B

35,

SUBTITLE

C

(TOXICS CO1:TROL)

)

(Rextakina)

CONCURRING O~NION (by B.

Fo:cade):

I

concur from the majority

in

Docker.

B ~o that

:

miqht

raise

questions regarding two aspects of

toda~/’sfirst

notice

proposal.

In both

instances,

my questions relate

in general

tc

how the proposed language

wotild affect

the enforceability

of

Board regulations.

The ~trst section of concern

is

Section

305.102(e).

That

SE ~tion seems

to imply that when

an

LPDES

perm:t

contains

a

cc ~dition to study

the bioloalcal

imp:ct.

of an effluent,

the

N~JESpermittee may not be subject

to an

enforcement

action

for

either violations

of

the Board’s water q~lity standards

for

toxic chemicals or for actual violations

of in-stream toxicity

in

the receiving stream.

The second section of concern

is Section

309.152(b).

That

Section

seems

to imply

that the applicability of the Board’s

toxic chemical water quality

standards

to an NPDES permittee does

not comnience until

(1)

Agency notification,

(2) an additional

30

days

to file an application, and possibly

(3)

an additional

240

days for the Agency

to act on the permit application.

The Board has traditionally adopted regulations

that may be

enforced against NPDES oermittees regardless

of any permitting

decisions made by the Agency.

In thnt manner,

the Attorney

General,

local governments, and private citizens might enforce

Board regulations designed to protect the environment.

If the

Board adopts either

of these

two sections,

then Agency permitting

decisions would appear capable of vacating Board environmental

protection standards.

I question whether this is wise and

whether

it

is workable.

In addition,

third parties are not allowed

to appeal NPDES

permits.

Under

Landfill,

Inc.

V.

PCB,

387

N.E.2d 258

(1978) our

Supreme Court has allowed what

is,

in effect,

a suit

to reform

the permit

filed against

the permittee by a third party.

If

the

Board adopts either

of these sections,

I question

how

third

parties would be able to secure permit

reform.

If,

by mistake,

the Agency issued an NPDES permit with a toxic chemical

limitation that was clearly and ;;cefully inadequate, would third

parties be able

to seek reform of that permit

? If so,

how?

These questions would need to be clearly answered before

I

could support additional activity on these sections.

1’T~-~271

---

—2—

I,

Dorothy M.

Gunn,

Cr

Board, hereby certif

that

submitted on the

/~‘±

day of

of

tne Ill~ncisPo1lut~orControl

aoove

Concurrinq

Coanron

~ac.

~

/ ~

I

/

~

~

~--7~

-.---~~:

Dorothy

1~.~’tunn,

Clan.’

Illinois P6llution Control

Board