ILLINOIS POLLUTION CONTROL BOARD
    January
    25,
    1990
    IN THE MATTER OF:
    )
    AMENDMENTS TO TITLE 35,
    )
    R88-21,
    Docket A
    SUBTITLE C
    (TOXICS CONTROL)
    )
    (Rulemaking)
    DISSENTING OPINION
    (by J.D.
    Dumelle and N. Nardulli):
    We dissent from the Board’s Final Opinion and Order adopted
    today
    in this
    docket.
    While
    we totally support
    the adoption
    of
    rules and regulations which attempt to assure that there shall
    be
    no toxic substances present
    in toxic amounts within the waters of
    the State, we feel strongly that that which is to be adopted by the
    Board
    be
    rules
    and regulations
    as
    those
    terms
    are used
    by
    the
    Illinois
    Environmental
    Protection
    Act
    (Act)
    and
    the
    Illinois
    Administrative
    Procedure
    Act
    (APA).
    We
    do
    not
    believe
    that
    portions of this rulemaking can properly be characterized as “rules
    and regulations.”
    In
    particular,
    our concern
    is
    directed
    to
    the
    “narrative
    standard” provisions, Section 302.210 and Subpart F, Procedures for
    Determining Water Quality Criteria.
    We believe that these sections
    (1)
    are vague,
    (2)
    delegate
    Board
    rulemaking
    authority
    to
    the
    Illinois Environmental Protection Agency
    (Agency), and
    (3)
    do not
    allow for a consideration of economic reasonableness,
    as required
    by Section 27(a)
    of the Act.
    First, some conimenters have pointed out the vagueness of the
    rule
    by
    stating
    that
    it
    is
    possible
    for two scientists
    working
    through the narrative standard provisions to arrive at completely
    different results.
    We agree.
    And we firmly believe that a rule
    should not have such a result.
    Section 5(b)
    of the Act states:
    The
    Board
    shall
    determine1
    define
    and
    implement the environmental control standards
    applicable
    in the State
    of
    Illinois and may
    adopt rules and regulations in accordance with
    Title VII of this Act.
    (Emphasis added.)
    Consistent with this directive,
    we believe that every discharger
    in
    Illinois
    should
    know,
    or
    should
    be
    able
    to
    determine
    with
    reasonable accuracy, what
    is expected of his facility.
    We do not
    believe that the narrative standard rules, as written, provide such
    information.
    Second,
    the
    argument
    was
    made
    early
    and
    often
    in
    this
    proceeding
    that
    if
    the
    Board
    adopts
    the
    narrative
    standard
    provisiops as proposed by the Agency,
    the Board will be delegating
    its rulemaking authority to the Agency.
    There was a good deal of
    hearing time dedicated to this issue, and the post—hearing comments
    1n7—357
    address it amply.
    Further, the Joint Committee on Administrative
    Rules
    (JCAR)
    during the course of
    its review addressed the issue
    and adopted a
    formal Objection to the rule on this basis.
    We,
    too,
    believe
    that
    the
    narrative
    standard
    provisions
    constitute
    a delegation of rulemaking authority to the Agency,
    and
    we
    do
    not support
    it.
    Whether
    the adopted
    language
    is
    called
    “standards”
    or
    “criteria”,
    it
    is
    clear that the Agency will
    be
    determining
    the numerical
    limitations
    on
    a case
    by
    case basis.
    This strikes
    us
    as rulemaking
    in disguise,
    which raises
    a number
    of additional concerns.
    First, with the Agency setting numerical
    standards
    on
    a case by case
    basis without
    following
    established
    APA rulemaking procedures,
    public notice and comment are ignored.
    How can we ensure that the Agency is subjecting facilities within
    a certain class to the same or similar requirements?
    Second, when
    the
    Board
    adopts
    a
    rule,
    it
    must
    first
    consider
    economic
    reasonableness and technical feasibility pursuant to Section 27(a)
    of the Act.
    But when, where,
    and how will economic reasonableness
    and
    technical
    feasibility
    be
    considered
    under
    the
    narrative
    standard provisions?
    By the Agency
    in a permit application,
    or by
    the Board
    on
    review of an Agency permitting decision?
    How will
    this determination be made consistent
    with the Board’s scope
    of
    review
    as
    articulated
    in
    City
    of
    East
    Moline
    v.
    Illinois
    Environmental Protection Agency,
    PCB 86—218,
    September
    8,
    1988?
    These questions raise many troublesome issues which will haunt us
    for a long time.
    We would prefer,
    as an alternative to the narrative standard,
    “option
    1”
    which
    is
    set
    forth
    in
    the USEPA
    guidance
    document
    (Exh.46)
    and
    also noted
    in the Board’s
    Opinion under
    “Required
    Action.”
    We believe that this option offers
    a workable approach
    under
    the
    system
    of
    environmental
    regulation
    created
    by
    the
    Illinois General Assembly in adopting the Environmental Protection
    Act.
    For these reasons, we respectf~ly dissent.
    /~-I:
    ~
    /1
    ~
    Jacob D.
    Dume le
    ichael
    L.
    Nardulli
    Board Member
    I,
    Dorothy N.
    Gunn,
    Clerk
    of the Illinois Pollution Control
    Board, hereby certify that
    th9~..above Dissenting Opinion was filed
    on the
    __________
    day of
    ___________________
    ,
    1990.
    ~
    Dorothy N. A~unn,Clerk,
    Illin~is
    Pollution
    Control
    Board
    107—358

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