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~