ILLINOIS POLLUTION CONTROL BOARD
    September
    28,
    1989
    IN THE MATTER OF:
    )
    PROPOSED AMENDMENTS TO TITLE
    )
    R88-2l
    35, SUBTITLE C (TOXICS CONTROL)
    )
    PROPOSED REGULATIONS
    FIRST NOTICE
    SUPPLEMENTAL OPINION OF THE BOARD
    (by R.
    C.
    Flemal)
    At hearing conducted
    in this matter on September
    18
    and 19,
    1989 the Illinois Environmental Regulatory Group
    (“IERG”)
    requested that
    the Board
    issue
    a Supplemental Opinion expanding
    upon certain matters related
    to the Board’s
    First Notice Opinion
    of August
    31, 1989.
    IERG requests the Supplemental Opinion
    so
    that it may more fully respond to its and the Board’s concerns.
    It
    is not the Board’s normal procedure
    to issue Supplemental
    Opinions.
    However, IERG correctly points out that this
    proceeding
    is
    on an expedited time schedule
    intended to allow
    completion by February,
    1990, which provides
    a short
    time frame
    within which IERG can formulate responses.
    IERG also correctly
    points out that some of the matters raised by it were not
    addressed
    in the Board’s August 31,
    1989 First Notice Opinion
    (“Opinion”)
    due to the
    short time frame within which the Board
    also was required to operate.
    Given
    these circumstances,
    the Board believes that departure
    from normal procedure
    is warranted
    in this case.
    Accordingly,
    the Board
    today
    supplements
    its First Notice Opinion with
    observations
    as follows.
    The Board emphasizes
    that
    the
    conclusions
    it reaches today are perspective conclusions based
    on
    the record as
    its currently
    stands.
    As
    is always true
    in rule—
    makings,
    these conclusions are subject
    to modification based upon
    continued development of the record,
    and are not final
    until the
    Board
    issues
    its Final Opinion
    in this matter.
    IERG TESTIMONY: EXHIBIT 36
    IERG specifically requests exposition of
    the Board’s
    perspective
    on recommendations made
    at hearing
    held
    on June
    13,
    1989 and
    included within Exhibit
    36.
    The following discussion
    parallels the presentation
    of
    IEPG’s recommendations within
    Exhibit
    36.
    It
    is
    to be noted
    that the IERG
    recommendations are
    in reference
    to
    the Illinois Environmental Protection Agency’s
    (“Agency”)
    February 1989 draft proposal
    (Exh.
    43).
    1fl3~-~fl3

    —2—
    Section 302.100
    IERG recommends
    that
    the word “adverse”
    be added within the
    definition
    of “Acute Toxicity”.
    This recommendation,
    which is
    also supported by the Agency
    (PC #8
    at
    par.
    4), has been accepted
    by the Board and incorporated within the First Notice Proposed
    Rule.
    IERG recommends that the definition
    of “Toxic Substance”,
    as
    included
    in
    the February 1989 proposal,
    be deleted.
    The Agency
    has responded
    that
    it believes that the term has utility within
    the overall context of the proposed
    rule
    (PC
    #8
    at par.
    5).
    The
    Board accepted this Agency perspective for
    the purposes of First
    Notice,
    although it has made substantive changes in the form of
    that definition,
    as detailed
    in the Opinion,
    p.
    26.
    IERG recommends
    the addition of
    a definition
    of “Toxicity
    Criterion”.
    The Board believes that the Agency’s recommended
    addition of
    a definition
    for “Criterion”,
    as adopted
    for First
    Notice, plus other pertinent additions related
    to the
    applicability of criteria,
    provide
    for substantial conformity of
    the proposed rule with
    IERG’s intent.
    IERG
    is specifica1l~y
    requested
    to comment on whether
    it
    is of
    a like belief.
    IERG recommends the addition of
    a definition for “Total
    Residual Chlorine”.
    This recommendation has been accepted by the
    Board
    and incorporated within
    the First Notice Proposed Rule.
    However,
    it
    is
    to be noted that the First Notice definition
    differs
    in detail from that proposed
    by IERG.
    The changes made
    are intended
    to present
    the definition
    in
    a
    form acceptable under
    the Illinois Administrative Code.
    IERG
    is requested
    to comment
    on whether
    the First Notice definition conforms with IERG’s
    intentions.
    IERG recommends certain modifications
    to the definition
    of
    “Zone of
    Initial Dilution
    (ZID)”.
    The Agency objects to
    the
    modifications
    (PC
    #8
    at pars.
    6
    and
    7)
    on grounds which the Board
    finds reasonable.
    Accordingly,
    for purposes of First Notice,
    the
    Board followed the Agency’s recommendation.
    Section 302.101
    IERG recommends that
    subsection 302.101(f)
    be deleted,
    concomitant with its recommendation
    that
    the whole of 302.Subpart
    F be deleted.
    This recommendation has been declined by the Board
    for
    the same reasons
    it declines
    to delete Subpart
    F (see
    following).
    Section 302.201
    IERG recommends amendments
    to
    the Scope
    and Applicability
    statement
    found
    at Section 302.201
    intended to establish
    that the

    —3—
    General Use Water Quality Standards are rules of general
    applicability from which applicants may seek
    an adjusted
    standard.
    The Board believes that this recommendation may have
    merit, and accordingly requests that IERG,
    the Agency,
    and other
    interested persons continue to address
    this issue and provide
    a
    record which could allow the Board
    to revisit this matter
    for
    Second Notice.
    Seotion 302.203
    IERG recommends
    that Section 302.203
    be modified to provide
    that offensive conditions
    (sludge, bottom deposits,
    floating
    debris,
    etc.)
    be subject
    to the mixing
    zone provisions
    of Section
    301.102.
    The Agency recommends
    against the IERG proposal
    (PC
    #8
    at par.
    24)
    on grounds which
    the Board
    finds persuasive.
    Accordingly,
    the IERG recommendation was excluded from the First
    Notice Proposal.
    Section 302.208
    IERG recommends certain modifications of the Agency’s
    proposed subsections
    (a)
    to
    (d),
    intended to clarify
    these
    subsections.
    The Board has also shared these concerns, and
    accordingly at First Notice discussed and proposed alternative
    language of
    its own (Opinion at p.
    29).
    IERG
    is requested
    to
    comment on whether
    the Board’s proposed modifications are
    in
    consort with the IERG recommendations.
    IERG also recommends alternate chlorine and iron
    standards.
    These recommendations were accepted by the Board
    in
    principle
    at First Notice
    (Opinion at
    p.
    21—22,
    30).
    As
    noted
    there,
    IERC and other
    interested persons are requested
    to further
    address
    both
    of these matters.
    Section 302.210
    IERG recommends various modifications
    to wording within
    subsections
    (a)
    through
    (f)
    “primarily
    for clarification
    purposes”.
    The Board
    notes
    that
    the Agency’s August
    9,
    1989
    proposal
    incorporated several
    of the IERG recommendations,
    and
    that additional
    further
    modifications were made by the ~oard
    at
    First Notice.
    IERG
    is requested
    to comment on whether
    these
    accumulative changes conform with IERG’s intent.
    IERG also recommends the addition of
    an adjusted standard
    procedure
    IERG’s
    proposed subsections
    (g)
    and
    (h)
    .
    The Board
    gave
    this procedure extensive consideration prior
    to First
    Notice.
    Additionally,
    the Board
    is impressed with the amount of
    originality and effort evidenced
    in the recommendation.
    Nevertheless, the Board declined
    to propose
    the recommendation
    at
    First Notice.
    The principal
    reason
    is that the Board does not
    believe
    that
    the adjusted standard procedure
    is necessary because
    103--6fl5

    —4—
    the same ends can be achieved by more straight—forward methods.
    These methods are embodied principally
    in the Board proposed
    subsection
    (f).
    A second reason for the Board declining
    to propose
    the
    adjusted standard procedure
    is the question raised by the Agency
    regarding
    the federal
    acceptability of
    the procedure
    (PC
    #8
    at
    par.
    30).
    The Board does not believe that the Agency’s questions
    have been countered.
    IERG further recommends
    the addition of new subsections
    at
    302.210(j)
    and
    (k).
    As regards
    the proposed
    subsection
    (j),
    the
    Board believes that vagueness of the phrases “statistically
    reliable data base”
    and “scientifically valid methodology”
    limit
    the acceptability of the subsection.
    As regards proposed
    subsection
    (k),
    the Board believes that the thrust of the
    subsection may be
    incorporated within the Board’s proposed
    302.210(f).
    The Board requests that,
    from this vantage,
    IERG
    comment on whether
    it would continue
    to recommend
    the
    incorporation of
    its subsections
    (j)
    and
    (k).
    Section 302.211
    IERG recommends
    the addition of
    a new subsection specifying
    the dimensions of
    a mixing zone
    for temperature standards.
    The
    Board did not adopt
    this recommendation
    for purposes of First
    Notice because
    it did not believe that the record was
    sufficiently developed
    to justify
    its inclusion.
    Interested
    persons are requested
    to comment further
    on this matter.
    302.Subpart
    F
    IERG recommends that Subpart
    F be deleted
    in its entirety
    from consideration under
    the instant docket and considered
    instead
    under
    a separate docket.
    IERG’s position
    is that the
    Subpart involves complicated
    issues which require more
    time
    for
    review.
    The Board
    is
    in sympathy with the perspective that Subpart
    F
    involves complicated
    issues.
    However,
    the Board believes that
    this
    is not sufficient grounds to separate
    it out from this
    proposal.
    As complex as Subpart
    F may be,
    it must be noted
    that
    the substance
    of the Subpart has been available
    for review since
    the inception of this proceeding
    in August 1988.
    Moreover,
    the
    Board has received extensive testimony on the Subpart.
    The Board further
    believes that splitting
    off Subpart
    F
    would leave
    a
    rule which lacks essential operative components.
    Such
    a rule would therefore doubtfully comply with
    the federal
    mandate which drives this entire proceeding.

    —5—
    Section 305.102
    IERG recommends
    several additions
    to reporting
    requirements.
    These recommendations were not incorporated at
    First Notice on the belief that they have not been sufficiently
    developed
    in the record.
    IERG and interested persons
    are
    requested
    to comment further
    on
    these
    recommendations.
    r~ctjon309.141
    IERG recommends
    several additions
    to terms and conditions of
    NPDES permits.
    These recommendations were not incorporated
    at
    First Notice on the belief that they have not been sufficiently
    developed
    in the record.
    IERG and interested persons
    are
    requested
    to comment further
    on these recommendations.
    FIRST NOTICE ERRATA
    At hearing on September
    18 and 19, 1989 comments regarding
    apparent errata
    in the First Notice Opinion
    and Order were made
    by several participants.
    Additionally,
    the Board itself notes
    several such items.
    The Board
    takes this opportunity
    to identify
    these,
    as
    follows:
    1)
    The Opinion at page
    25 cites
    the 1985 16th Edition as
    the most recent Standard Methods.
    The 1989 17th Edition
    is now available,
    as is correctly cited
    in the Order
    at
    301.106(b).
    2)
    Section
    302.203(d)
    of the Order
    the
    table entry of AS
    for
    lead should read “not
    to exceed
    100 ugh”,
    rather
    than “not
    to exceed
    50 ug/l”.
    3)
    Section 302.210(b)
    of the Order should contain
    the
    phrase “(WDAPC) derived pursuant
    to” rather
    than
    “(c~DAPC)pursuant
    to”.
    4)
    Section 302.615(f)
    at lines
    6
    and 7 should contain the
    phrase
    “GMAVs which are
    to be
    used” rather
    than “GMAVs
    which are to used”.
    5)
    The equation
    in Section 302.618(j) should contain
    an
    upper
    case
    X rather than
    a lower case
    x.
    6)
    The word “must”
    in Section 302.654(d)
    should
    be “shall”.
    7)
    Section 303.362
    (Horseshoe
    Lake Mixing Zone and ZID)
    of
    the Order
    should be numbered as Section 303.354, for
    the
    purpose
    of accommodating the Part 303 organizational
    scheme specified at
    35
    Ill. Mm.
    Code 303.301.
    103-(07

    —6—
    8)
    Section 309.l03(a)(3)
    of the Order has not been purged
    of the vague word “apparent”.
    The Board does not believe that any of these changes are of
    a nature that they could not be made at Second Notice.
    Accordingly,
    the Board would intend to incorporate them at that
    time.
    COMMENTS OF THE ILLINOIS ADMINISTRATIVE CODE DIVISION
    On September
    26,
    1989 the Illinois Administrative Code
    Division of the Illinois Office of the Secretary of State filed
    comments.
    These consist of changes necessary
    to conform the
    proposed rules
    to Code Division standards.
    The Board anticipates
    that these changes can be made at Second Notice.
    IT IS SO ORDERED.
    Board Member
    J. Dumelle concurred.
    I, Dorothy M. Gunn,
    Clerk
    of the Illinois Pollution Control
    Board, hereby certify that
    the
    bove Supplemental Opinion was
    adopted on the
    ~‘~Z
    day of
    /
    ~
    ,
    1989,
    by a vote
    of
    ~,O.
    C
    ~
    Dorothy M.
    G~inn, Clerk.
    Illinois Pollution Control Board
    103—6iY~

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