ILLINOIS POLLUTION CONTROL
BOARD
August
31,
1989
IN THE MATTER OF:
PROPOSED AMENDMENTS TO TITLE
)
R88-21
35, SUBTITLE C
(TOXICS CONTROL)
)
PROPOSED REGULATIONS
FIRST NOTICE
OPINION OF THE BOARD
(by R.
C. Flemal)
This matter comes before the Board upon
a regulatory
proposal filed August
5,
1988 by the Illinois Environmental
Protection Agency (“Agency”).
The purpose of the proposal
is to
make additions to and to amend the Board’s regulations for the
control of toxic substances
in surface waters.
The original proposal,
filed August
5,
1988 has been amended
by the Agency three times;
the most
recent amended proposal was
filed August
9,
1989.
The Agency has certified that adoption of
such rules
is federally required pursuant to the procedures of
Section 28.2 of
the Illinois Environmental Protection Act
(“Act”), which became effective January
1,
1989.
The Board has
expedited this proceeding
to allow for adoption of final
rules
by
the certified deadline date of February
4,
1990.
The Board today, by separate Order, adopts
a modified
version of the Agency’s August
9,
1989 proposal
for First Notice.
OVERVIEW OF PROPOSAL
The instant proposal both adds
to and amends the Board’s
existing water quality regulations
(35 Iii. Adm. Code 302.101
et
~g.)
reflecting the mandate of
the Federal Clean Water Act
(“CWA”)
as well as advances
in the sciences of toxicology and
chemical detection.
The underlying policy of both the existing
regulations and the proposed regulations
is that the waters of
Illinois must not be impacted by toxic substances
in toxic
amounts.
This section will briefly summarize the major elements
of the current proposal.
The Standard for Toxics
in Waters of the State
The standard that we propose today
is very simple.
Moreover,
it
is the standard required by federal
law and
is
hardly different from the standard which already exists
in our
regulations.
Simply put, the standard
is:
“There shall
be no
toxic substances present in toxic amounts”.
We are not thereby
proposing that all toxic substances be eliminated from the
environment.
However, we are requiring that those
toxic
102—~29
—2—
substances which may be present occur at such concentrations or
in such load as to cause no toxic effects.
Homely put, we are
requiring adherence by the potential polluter
to an apt adage for
civilized society:
“Your right to swing your fists ends where the
other guy’s nose begins”.
There
is
in fact no apparent disagreement over this
fundamental standard.
Rather, the disagreement that exists
is
over
the definition of what constitutes
a “toxic amount”.
For
many substances, particularly the common toxic substances, we do
know to very good levels of approximation what constitutes a
toxic
amount.
This level of certainty
is exemplified by the
substances for which we now propose,
or have previously adopted,
specific numeric standards
(see Section 302.208).
If this were the end of story,
the instant proposal would
constitute
a straightforward exercise.
This
is not the case.
The problem is that
there are many substances
for which we cannot
identify with much precision what constitutes a “toxic amount”.
In fact,
the down—side is that we cannot do this for
the great
majority of toxic substances;
the many necessary studies simply
have not yet
been done, and
in many cases
the toxic nature of
substances themselves may not have been identified.
The up—side
is that these substances tend
to be rare and hence
the chance of
encountering them in the environment
is small.
Defining the “Toxic Amount”
The Agency has proposed, and we accept, what
we believe to
be an
innovative and constructive approach
to defining what
constitutes a “toxic amount” for those substances for which we
cannot yet realistically specify a numeric standard.
The
approach consists of setting up
a tight series of procedures by
which the best currently—available toxicity information
is used
to approximate that numeric criteria which might eventually
evolve into a standard as more and better data accumulate.
This approach has several advantages.
Among
these are that
it
is not necessary to propose numbers for substances which may
not be encountered
in Illinois waters,
thus warding off a
substantial unproductive effort.
Additionally,
the narrative standard approach allows
for
rapid reaction against a substance not previously existent or not
previously recognized as being
toxic.
Environmental control
history
is replete with examples of new needs and new
technologies causing the development of, and entry
into,
the
environment of
new
substances.
Moreover,
the
toxicity
of
some
of
these substances has not been recognized until
long after their
appearance
in the environment.
It
is one
of the major
shortcomings of environmental control that
it has been sluggish
in responding to the appearance of
new
toxic substances.
Today’s
102-330
—3—
proposal will not eliminate the sluggishness,
but
it can
substantially reduce
it.
Under the instant proposal, whenever
it
is recognized that a new substance offers a threat,
the Agency
would have the ability to immediately react
to whatever sources
may be responsible and to work with that source in eliminating
the threat.
These advantages notwithstanding,
the principal advantage of
the instant proposal is that
it greatly reduces the potential for
lending unwarranted credence to unreasonable numeric standards.
The history of environmental control clearly tells us that
determination of the appropriate standard for most substances
does not come easily.
Rather, large amounts of data must be
accumulated and extensive study must be undertaken before the
obvious numeric standard,
if ever,
is revealed.
This condition,
however, cannot be an excuse for the environmental decisionmaker
to defer action until certainty reaches
its never—achievable
limit.
The art of the environmental decisionrnaker
is,
in fact
and in no small measure, knowing when and how to act
in the face
of less than complete certainty.
This
is not
to say that even
the most artful of
the environmental decisionmakers
is always
correct.
To the contrary,
it
is quite common that later research
shows that numeric standards have been incorrectly set,
thus
requiring that standards be continuously reassessed
in light
of
the most recent scientific information.
But the reassessment
process
is also slow;
work loads are heavy and crises consume
attention.
Moreover, once graced with a numeric limit,
a
standard takes on a distinct life of its own, and the most
difficult stumbling block
to rectifying an existing numeric
standard tends to be the very prior existence of the standard.
It
is certain that there are many standards on today’s books
which are outmoded, outdated, and not justifiable under knowledge
presently
in existence.
The approach proposed here reduces the likelihood of
outdated and outmoded standards by deferring formulation of the
numeric standard until more of the pertinent information
is
available.
At
the same time,
today’s proposal allows the Agency
to utilize the best currently—available information to interpret
the fundamental policy
of “no toxic substance in toxic amounts”.
This policy,
to be sure,
is not without its disadvantages,
and these must be understood.
Among them
is that the regulated
community may find some discomfiture with the prospect of not
always being able
to
identify beforehand what specific numeric
level of a toxic substance
is likely
to constitute
a violation of
the prohibition against toxicity.
We note,
however,
that this is
also true for most
toxic substances under current prohibitions
against toxicity.
We do believe that today’s approach can go a
long way toward easing any discomfiture by spelling out
in great
detail the procedures by which criteria which define a “toxic
amount” can be determined by anyone.
Thus, any person may
102—33 1
—4—
determine what constitutes a “toxic amount”,
even for substances
not yet considered by the Agency as regulator.
Moreover,
the
regulated community need not be reminded that
it has due process
rights, plus several routes of appeal to the Board,
should
it
find disagreement with the manner in which the procedures
proposed herein are interpreted or applied.
A second disadvantage is that which accompanies any
pioneering effort.
No other
state has chosen the innovative
route we propose here today.
Thus, we can rely on no—one’s track
record
for guidance
in ironing out those glitches, small or
otherwise, which innovation inevitably carries.
This
disadvantage, however, certainly must not be viewed as fatal,
less we make no progress.
Allowed Mixing
Today’s proposal affirms a long—standing tenet of both
Illinois and federal environmental
law.
That
tenet is that
a
discharger,
given certain limits imposed by the receiving water
body and requirements
to meet treatment standards,
is allowed a
mixing zone in which the otherwise applicable ambient water
quality standards do not apply.
Specifics of how this policy
would apply are discussed within a later section of this Opinion.
Acute and Chronic Standards
A salient
feature of the instant proposal
is a”two—number
standard system”
to replace the existing “single—number approach”
for certain chemical constituents.
This “two—number standard
system” utilizes an acute standard
(“AS”) and a chronic standard
(“CS”).
This approach is desirable because
it addresses both
acute effects caused by
a short—term “dose” of
a pollutant and
chronic effects produced by long—term constant exposure.
Under
the proposal, where no mixing zone has been established,
the AS
may not be exceeded
in
a single sample and the
CS may not
be
exceeded by
the average of
no fewer
than four samples collected
over
a period of at least
four
days.
Where
a mixing zone has
been established the AS may not be exceeded
in the mixing zone
except within a small, special part
of the mixing
zone,
the Zone
of
Initial Dilution
(“ZID”), and the CS may not be exceeded
outside of
the mixing
zone.
PROCEDURAL HISTORY
This rulemaking was initiated by
the Agency’s filing of its
proposal on August
5,
1988 (Ex.
27).
Hearing Officer Orders of
August
29,
1988 and October
24,
1988 set deadlines
for
the filing
of pre—submitted testimony and exhibits.
Upon motion by the
Agency and the Illinois Environmental Regulatory Group
(“IERG”)
another pre—hearing coniference was held on September
28,
1988
102—332
—5—
pursuant to the procedures of Section 27(e)
of the Act.
On
October
6,
1988,
the Board entered an order directing the Hearing
Officer to schedule a pre—hearing conference to address drafting
issues and conformance with the requirements of the
Administrative Procedure Act
(“APA”).
A second pre—hearing
conference was accordingly held October
14,
1988.
As a result of
discussions concerning modifications necessary to meet the
technical drafting requirements of the APA, on October
28,
1989,
Board staff issued and served upon the notice list, an edited
draft of the Agency’s proposal
“solely intended to aid the Agency
in drafting the proposal”, accompanied by an explanatory
memorandums-.
The memorandum noted incorporation by reference and
vagueness problems as being of particular concern to the Board.
To date,
seven hearings have been held in this proceeding,
77 exhibits have been admitted, and
13 Public Comments (“PC”)
have been filed.
Public Comments have been received by the
following entities:
Pfizer Pigments,
Inc.
(PC #1);
Sanitary
District of Rockford (PC #2-4); Metropolitan Waste Reclamation
District of Greater Chicago (PC #5); National Wildlife Federation
(PC #6); Amerock Corporation
(PC #7);
the Agency
(PC
#8,
#9);
Illinois Steel Group
(“ISG”)
(PC #10); village of Sauget
(PC
#11); and IERG (PC #12).
These comments have provided
information useful to the Board in formulating the instant
proposal.
The comments will not be synopsized here, but will be
referenced throughout this opinion where relevant.
Agency has
revised its proposal three times
(see,
Ex.
29,
43 and PC #8).
The Agency filed its most recent proposal, which supersedes
all others, on August
9,
1989.
As a result of these revisions,
the relevancy of portions of the testimony and exhibits has been
mooted.
Given the federally—imposed time constraints for
adopting the instant regulations, the testimony elicited at
hearing will be reviewed summarily with emphasis being given to
testimony of particular current
relevance and interest.
However,
the Board will reference that testimony and documentary evidence
which it considers relevant to the following discussion of the
Board’s proposed regulations.
The first hearing, held November
18,
1988, was devoted to
testimony from the USEPA concerning
its reaction to the Agency’s
proposal and to the Agency’s explanation of the proposal.
Charles Sutfin, Director of the Water Division for USEPA Region
v,
testified that, although the USEPA proposed some minor
1 Although the memorandum indicated the Board’s intention to
enter the memorandum and marked—up version of the Agency proposal
as an exhibit, due
to oversight this has not previously been
done.
The memorandum and marked—up proposal are hereby entered
as Exhibit 77.
102—333
—6—
changes,
it supported the proposal as written as being consistent
with federal law
(R.
9/18/88 at 25—38,
41,
76—77).
Toby Frevert, manager
of the Planning Section for the
Agency’s Division of Water Pollution Control, Robert Mosher, an
Agency environmental protection specialist, and Clark Olson,
provided the primary testimony explaining the Agency’s proposal
at the initial hearing
(R.
9/18/88 at 107—51).
Because the
Agency’s proposal has undergone substantial revisions since this
initial hearing was held,
the Agency’s opening testimony will not
be
reiterated in full here.
However,
the testimony provides a
good overview of primary concepts of the proposal.
In
particular,
the Agency emphasized the distinction between a
criterion and a standard
(Id. at
127—28).
This distinction is an
essential element of the narrative standard.
At the second hearing, held December
6,
1988,
the Agency
introduced revisions to its proposal
(Ex.
29).
These revisions
were made in response
to concerns expressed by participants
that
use of
the narrative standard constituted an improper delegation
of
the Board’s rulemaking authority to the Agency
(R.
12/6/88 at
239,
414).
The Agency also testified that the proposed
regulations were federally required under the CWA
(Id.
at 250—
63).
The bulk of the Agency’s testimony is its response to
ques:ions pre—submitted by various participants.
Of particular
note was the Agency’s explanation of how the proposed regulations
would operate
in a “real—life” situation (Id.
at 292—97).
The
Agency testified that it views the regulations as being
applicable
to both permitted and non—permitted dischargers
(Id.).
The Agency explained that under
the provisions of the
narrative standards,
the Agency
(or Illinois Attorney General or
any other person)
would bring an enforcement action for violation
of the toxicity standard
or for violation of a permit condition
rather
than bringing suit
for
a violation of the narrative
criteria
(Id.
at 796—97).
The Agency also made clear
that,
under
the terms of the proposal,
the narrative standard would not
be
applied where a substance is regulated by
a specific numeric
limit pursuant to Section 302.208
(Id. at
320).
At the December
7,
1988 hearing,
the Agency continued to
respond to pre—submitted questions posed by participants.
The
Agency addressed the “limits of detectability”
for chemical
constituents listed in Section 208
(R.
12/7/88 at 446—56).
The
testimony elicited at this hearing will not
be
synopsized here,
but will be addressed where appropriate under
the Board’s
discussion of
its proposed modification to the Agency’s proposal.
On January
5,
1989,
the Board adopted RES 89-1,
In the
Matter
of: Application of Procedural Amendments of
P.A.
85—1048
to Newly Filed and Pending Regulatory Proceedings.
(This
Resolution will be discussed
in more detail later
in
this
Opinion).
On January 13,
the Hearing Officer entered an Order
102—334
—7—
implementing RES 89—1
in this proceeding,
directing the Agency to
file a Section 28.2 formal certification, along with any
contemplated revised proposal, on or before February 9,
1989.
A
certification was received on February 10,
1989.
The resulting
deadline date
for submission of the EcIS pursuant to Section
28.2(d)
is therefore calculated to be August
9,
1989.
Also on February
9,
1989,
the Agency submitted an amended
proposal containing significant changes from the December revised
proposal
(Ex.
43).
The Agency explained these changes at hearing
on February
16,
1989.
The Agency amended the narrative standard
provisions by including,
as part of the proposed regulations,
the
procedures used for deriving criteria under
that standard
(R.
2/16/89 at
627—40).
Previously,
these procedures remained Agency
policy rather than proposed regulations.
The Agency reiterated
that “no toxic substances
in toxic amounts” was the water quality
standard
(Id. at 646).
The proposed narrative standard
procedure,
according to the Agency, allows
for the “derivation of
a criterion to accomplish the intent of the toxicity standard,
and that criteria sic
is designed to protect instream value,
which is another step yet removed from what would be a permit
limitation”
(Id. at 646—47).
In response to the Agency’s
February
9,
1989 amended proposal the Illinois Environmental
Regulatory Group
(“IERG”) stated its position that the narrative
standard procedures were inappropriate as Board regulations and
should remain Agency procedure
(Id. at 668).
At the February 17,
1989 hearing,
the ISG expressed concern
over the lack of notice of criteria derived pursuant to the
narrative standard.
(R.
2/17/89 at 915—16).
The participants
seemed
to agree that notice was not a problem for permitted
dischargers
(Id.).
Regarding non—permitted sources,
the Agency
stated that criteria developed under the narrative standard would
be entered on a list and published in the Agency’s annual program
plan and possibly in the Environmental Register
(Id. at 916—
17).
The Board notes that
it has attempted to address
this
concern of lack of notice of criteria developed under
the
narrative standard in the Board’s proposed regulations.
Public
comment in response
to these proposed requirements of publication
is invited.
The Agency also explained its rationale for proposing
a ZID
(R.
2/17/89 at
939—40).
The existence of
a ZID recognizes
the
mixing capabilities of the receiving body and allows a small
portion of that receiving body to be used to accomplish dilution.
(Id.)
The Agency concluded its presentation of, and answered
inquiries to,
its proposal at the February 17,
1989 hearing.
The June
13,
1989 hearing opened with the testimony of Dr.
Philippe Ross,
sponsored by the Scientific and Technical Section
of the Pollution Control Board
(R. 6/13/89 at
7—31;
see also,
Ex.
52—55.).
While Dr. Ross expressed concern over the lack
of
102—335
—8—
reference to sediment contamination in the Agency’s proposal
(Id.
at
30), this concern was not shared by any other participants
(Id. at 142, 146—47).
Sidney Marder,
Executive Director of IERG,
testified concerning IERG’s points of agreement and disagreement
with the Agency’s proposal
(Id. at 64—86).
Specifically, IERG
opined that adoption of
the proposed narrative standard
constituted an improper delegation of the Board’s rulemaking
authority to the Agency
(Id.
at
67;
Ex.
56).
IERG, therefore,
proposed that “toxicity criterion”
be defined as a “permit—
specific mathematically derived number which results in an
effluent limitation
in an NPDES permit”
(Id. at
69).
IERG then
proposed that the NPDES permit procedures be dove-tailed with the
Board’s provisions
for adjusted standards (Ill. Rev.
Stat.
1987,
ch. lll~,par. 1028.1).
According to IERG,
criteria derived
pursuant
to the narrative standard must be adopted by the Board
(R.
6/13/89 at 74).
IERG suggested that, where the parties agree
upon
a toxicity criterion,
the Board could adopt such criterion
pursuant to
its adjusted standard procedures and this criteria
would
then be the subject of an NPDES permit
(Id. at 74—75).
IERG’s proposed changes would effectively limit the proposed
regulations
to permitted dischargers
(Id.
at 108—16).
Concerns were expressed by the Agency that IERG’s suggested
changes would impermissibly involve the Board
in the Agency’s
decision to grant or deny a permit
(R.
6/13/89 at 94—96).
The
hearing officer posed questions to IERG concerning the
practicality of IERG’s assumption that the Board could act upon a
Petition for Adjusted Standard within the requisite time—period
for acting on the permit application
(Id. at 87—92).
IERG also sponsored the testimony of Dr. Roy Ball and Gerald
Erjavic.
Dr. Ball’s testimony focused on the concepts of a
mixing zone and ZID and the advantages of computer modeling in
determining their proper size
(R.
6/13/89
at 125—83).
Dr.
Ball
opined that
the Agency’s proposal should
be changed to recognize
that
a mixing zone and
ZID exist
for every discharger
(Id.
at
127—28).
Dr.
Ball agreed that setting
a maximum size for
a
mixing zone is reasonable
(Id.
at
128-29).
Gerald Erjavic,
a chemist employed by the Water Quality
Staff of
the Environmental Affairs Department of Commonwealth
Edison, primarily testified as
to proposed revisions
to the
residual chlorine limitation
set forth
in Section 208
(R.
6/13/89
at 187—96).
The
final hearing before closing the record for purposes of
proceeding
to First Notice was held June
14, 1989.
The Agency
noted that
issues raised at the prior hearing concerning residual
chlorine, mixing zone size and the procedures utilized for
deriving
a criteria under
the narrative standard might
result
in
modification of the proposal
(R.
6/14/89 at
261—63).
102—3 3 6
—9—
Larry Hughes, Director of Waste Treatment Facilities of
the
Greater Peoria Sanitary District, testified on behalf of the
Illinois Association of Sanitary Districts
(“IASD”)
(R. 6/14/89
at 264—271;
see also,
Ex. 62).
The IASD expressed concerns
regarding the detection limit
for residual chlorine
(Id.
at 266—
67), certain proposed numeric limits,
the size of a ZID
(Id.
at
268—69),
the “not—to—be—exceeded at anytime” standard
(Id.
at
269), and the lack of certified biomonitoring labs
in Illinois
(Id. at 269—70).
Dr. Carroll Missimer,
a scientist for the Environmental
Assessment and Biomonitoring Group at EA Engineering, Science and
Technology,
Inc.,
testified on behalf of the Village of Sauget
(R.
6/14/89 at
300 et seq.).
Dr. Missimer opined that setting a
maximum size limit on mixing zones was arbitrary and that mixing
zones and ZIDs should be determined on a site—specific basis
(Id.
at
301—04,
337).
Dr. Missimer testified that,
to his knowledge,
no other
state
in USEPA Region V put
a maximum size limit
on
mixing zones and ZIDs
(Id.
at 304—05).
Sauget also suggested
that consideration be given
to providing for the implementation
of the “acid—soluble method”
of metal detection in place of the
“total recoverable method”
in light of the USEPA’s imminent
approval of the former technique
(Id. at 309—11).
Lastly,
Sauget
suggested some definitional changes
to the Agency’s proposal
(Id.
at 306—07,
311—12).
Mr. Frank Bender
testified on behalf of the Illinois
Wildlife Federation (“IWF”)
(R.
6/14/89 at 365—71;
see also,
Ex.
68).
The IWF suggested the use
of more stringent human threshold
and non—threshold criteria
(Id.
at 367—68)
and suggested changes
to the procedures used to derive such criteria
(Id.
at 368—69).
The Foundation opposes the use of mixing zones and ZIDs (Id.
at
370).
Mr.
Carl Cannon and Mr. William West testified on behalf of
the Illinois Steel Group.
Mr.
Cannon, Manager of Environmental
Control for
the Granite City Division
(“GCD”)
of National Steel
Corporation, focused on the possible effects of the proposed
regulations on Horseshoe Lake,
a receiving water
for GCD’s
discharge
(R.
6/14/89 at 376—81).
ISG suggested that the
proposed regulation providing that mixing zones and ZIDs are not
applicable to lakes be stricken
(Id.
at 380—81).
Mr. West,
Director
of Environmental Control for LTV Steel
Company, testified as
to the costs incurred by LTV in complying
with Ohio’s biomonitoring requirements
(R. 6/14/89
at
390—94,
see
also,
Ex.
70).
At the time of this hearing,
ISG had not
developed a
final position on the Agency’s proposal
(Id.
at 394).
By Hearing Officer Order
of July 12,
1989,
the Board’s
projected timetable was set forth,
and an August
9,
1989 date set
for submission of any written comments which participants wished
102—337
—10—
to have fully considered by the Board prior to adoption of a
proposal for first notice.
Assuming the applicability of a
February
4,
1990 adoption deadline, the Order noted that to allow
time for the running of each of the APA’s
45—day first notice and
45—day second notice periods., Board action on a first notice
proposal was necessary in the last week
in August or the first
week
in September, and on a second notice proposal
in the last
week
in November or the first week in December
to allow for final
adoption of a proposal on or before January
25, 1990.
Comments were timely filed on or before August
9 by Amerock,
ISG,
Sauget and IERG; on August
17,
IERG filed
a motion for leave
to file corrected comments which
is hereby granted.
On August
9,
the Agency filed an amended proposal as well as comments by
USEPA.
On the same day, DENR filed what
it stated was the first
of two installments of economic information on the Agency’s
proposal, stating its intent
to file the second installment in
mid—November.
(This filing will be discussed
in more detail
later
in this Opinion.)
LEGAL ISSUES
This proceeding has involved several legal issues of
first
impression,
relative to implementation of various amendments
to
Section 27 and new Section 28.2 of the Act which took effect
after
the filing of this proposal.
SB 1834 and RESOLUTION 89-1
On January
5,
1989,
the Board adopted RES 89—1,
In the
Matter of: Application of Procedural Amendments of P.A.
85—1048
to Newly Filed and Pending Regulatory Proceedings.
In
that
Resolution,
the Board addressed
the significant procedural
changes
in the Act enacted
in SB
1834,
P.A. 85—1048, effective
January
1,
1989.
The Board determined that SB 1834 would in some
measure,
apply to proceedings filed before
its effective date,
citing McQueen v.
Conner,
385
Ill.
455,
459 N.E.
2d
435,
437
(1943) and Nelson
v.
Miller,
11
Ill.
2d
378, 143 N.E.
2d 673
(1977).
The Board noted that Section 27(a)
of the Act, as
amended by
SB 1834,
allows and requires the Board,
rather than
the Illinois Department of Energy and Natural Resources
(“DENR”)
to determine whether an economic impact study
is
to be
performed.
For pre—1989 filings,
the Board construed SB 1834
“as
providing that any final conclusion reached by DENR prior
to
December
31,
1989 regarding the need for an EcIS
is conclusive
in
that proceeding
“
(p.2).
As
DENR had notified the Board of
its
decision
to conduct an EcIS by letter filed December
21,
1988,
the Board has made no EcIS determination
in this proceeding.
102—338
—11—
SB 1834 also added a new Section 28.2 which establishes
expedited requirements for federally required rules.
Among other
things, Section 28.2 establishes a procedure for Agency
certification that rules are
in fact federally required, and sets
a six—month deadline for preparation of an EcIS.
In proceedings
filed prior
to 1989,
such as this,
the Board determined that
where “DENR has already determined to perform an EcIS,
the Board
will construe the date upon which any Agency certification
is
received as triggering the six—month deadline for preparation of
the EcIS”
(p.
5).
The Board also determined that receipt of the
Agency’s formal certification would also trigger the
6 month
deadline for publication of a first notice proposal
in the
Illinois Register specified
in Section 28.2(e).
It has been clear
since the beginning of this proceeding
that some amendments
to the existing toxics control regulations
are federally required,
leaving for resolution issues of what
amendments are required when.
Decisions about the timetable for
rulemaking are intertwined with
issues relative to the content of
rules and raise considerations relative to EcIS presentation.
These are all discussed below.
The Mandate of the CWA
Section 10l(a)(3) of the CWA states as a national policy
objective that the discharge of toxic pollutants
in toxic amounts
shall be prohibited.
Section 303(c)(2)(B)
of the Water Quality
Act of 1987 provides that states “shall adopt criteria for all
toxic pollutants listed pursuant to Section 307(a)(l)
...
as
necessary to support such designated uses.
...
Such criteria
shall be specific numerical criteria for such toxic pollutants.
Where such numerical criteria are not available
...
such states
shall adopt criteria based on biological monitoring or assessment
methods consistent with information published pursuant
to section
304(a)(8).”
(33 U.S.C. §303(c)(2)(B).).
In conjunction with the above-quoted provisions,
the United
States Environmental Protection Agency
(“USEPA”) published a
guidance document
(Ex.
46)
to aid states
in adopting regulations
consistent with the requirements of
federal
law.
This document
sets forth the following three options by which states may meet
the requirements of Section 303(c)(2)(B):
1)
Adopt statewide numeric water quality standards
for all EPA criteria
for section 307(a)
toxic
pollutants regardless of whether
the pollutants
are known to
be present;
2)
Adopt specific numeric water quality standards
for section 307(a)
toxic pollutants as necessary
to support designated uses where such pollutants
are discharged or are present
in the affected
102—339
—12—
waters and could reasonably be expected to
interfere with designated uses;
3)
Adopt a procedure to be applied to a narrative
water quality criterion.
This procedure shall be
used by the State in calculating derived numeric
criteria, which criteria shall be used for all
purposes under section 303(c) of the CWA.
Such
criteria need to be developed for section 307(a)
toxic pollutants, as necessary to support
designated uses, where these pollutants are
discharges or present
in the affected waters and
could reasonably be expected
to interfere with
designated uses.
Pursuant
to the second and third options quoted above,
the
Agency’s proposal contains both numeric water quality standards
and a narrative standard.
In pre—submitted testimony and
in
response to questions posed at hearing,
the USEPA suggested minor
changes to the Agency’s proposal but also expressed its opinion
that the proposal as written complied with federal law
(see,
Ex.
23;
R.
11/18/88 at
25—38,
41—42,
76—77.)
Required Date of Regulations
The Agency interprets that federal law mandates adoption of
the instant
regulations
(or at least an equivalent regulation
pursuant to Section 303(c)(2)(B)
of
the CWA)
no later than
February
4,
1990
(Ex.
44).
The ISG has questioned the accuracy
of the deadline and suggests that Illinois
is not required to
adopt water toxic regulations pursuant
to the CWA until October
of 1990
(R.
6/14/89 at
432;
PC #10).
According
to
ISG,
the 1972
amendments
to the CWA require each state’s water pollution agency
to review water quality standards once every three years
beginning with the effective date of the 1972 amendments on
October
18,
1972.
Consequently, Illinois would have conducted
its most recent review in October of
1987.
Therefore,
ISG argues
that the proposed regulations need not be adopted until October
18,
1990.
By Hearing Officer Order of July
21,
1989,
a letter dated
July 13,
1989
to the Agency
from USEPA was entered as Exhibit
75.
This letter reasserts the position
of USEPA stated at
earlier hearings that the deadline date for adoption of water
toxic regulations
is February
4,
1990
(Ex.
75).
The USEPA’s
position as
to the deadline imposed under federal law
is entitled
to deference.
Therefore,
the Board views February
4,
1990 as
the
deadline for adoption of the instant regulations.
However,
public comment
on this issue
is
invited.
102—34 0
—13—
Federal Requirements
The next
issue is whether the Agency’s proposed regulations
are federally required by the provisions of the CWA.
The Agency
has certified that both the specific numeric standards of Section
302.208 and the narrative standard of Section 302.210 are
federally required
(Ex.
44).
The Agency asserts that Section
303(c)(2)(b) of
the Water Quality Act of 1987 coupled with the
stated policy objective set forth in Section lOl(a)(3)
of the CWA
prohibiting “the discharge of toxic pollutants
in toxic amounts”
support its certification of the proposal as being federally
required.
ISG has responded in detail to the Agency’s position on this
issue
(PC #10 at 10—19).
ISG asserts that the proposed narrative
standard is not federally required and that the requirements of
the CWA may be satisfied by adopting specific numeric criteria
for priority pollutants of concern to Illinois pursuant to option
two of the USEPA guidance document
(Ex 46).
ISG notes that,
according to the guidance document,
the narrative standard may be
used as a supplement to options one and two but
it
is not
required.
Moreover,
ISG argues that even when a narrative
standard is used it
is limited to “toxic pollutants
‘the
discharge or presence of which
in affected waters could
reasonably be expected to interfere with those designated uses
adopted by the State, as necessary to support such designated
use’,
33 U.S.C.
§l313(c)(2)(B)”
(PC #10 at 11).
ISG contends
that the Agency’s proposal goes beyond this federal requirement
by regulating non—priority pollutants.
Lastly,
ISG disputes the
Agency’s reliance upon the policy objective of Section lOl(a)(3)
of the CWA as a basis
for asserting that the proposed regulations
are federally required.
Consistent with its position that the narrative standard
portion of the Agency’s proposal is not federally required,
ISG
suggests that the Board split the docket in this matter.
ISG
proposes that the Board proceed only with adoption of the
specific numeric standards set forth
in Section 302.208 and
postpone action on the narrative standard.
The Board disagrees with ISG’s contention that the
regulations proposed by the Agency are not federally required.
ISG’s interpretation of the USEPA guidance document
is
inconsistent with USEPA’s stated position on whether
it views the
Agency’s proposed regulations
as being required by federal law.
Section 303(c)(2)(B)
of the Water Quality Act
of 1987
requires that states adopt specific numeric criteria for all
“priority pollutants” and where numeric standards are not
available states “shall adopt criteria based on biological
monitoring or assessment methods consistent with information
published pursuant to Section 304(a)(8).”
(33 U.S.C.
102—34 1
—14—
S13l3(c)(1)(B).)
Only where a state expects that a pollutant
will not interfere with the designated use
is the state excused
from deriving a numeric standard for that pollutant
(Ex.
46 at
3).
However, nothing
in the Act restricts the right
of a state
to adopt numeric criteria for any pollutant not listed in Section
307(a)(1)
(Ex.
46 at
5).
The USEPA specifically opines that “an effective State water
quality standards program should include both the chemical
specific
...
and narrative approaches
(Ex.
46 at
2).
By
supplementing option two with option three,
“a State would have
formally adopted numeric criteria for those toxic pollutants of
frequent occurrence
...
and would also have a sound and
predictable method
to develop additional numeric criteria as
needed.
This combination of options provides a complete
regulatory scheme”
(Ex.
46 at
10).
Where option two is supplemented with option
3,
states must
provide an opportunity for public participation
(Ex.
46
at
10).
Additionally,
states must adopt
a “specific procedure to be
applied to narrative water quality criteria”
(Id).
Furthermore, USEPA reiterated this position
in a
correspondence dated July
3,
1989
from Kenneth A. Fenner,
Chief
of
the Water Quality Branch, USEPA Region V,
to James
B.
Park,
Manager of the Agency’s Division of Water Pollution Control
(Ex.
75).
This letter provides that
“the statutory commitments for
toxic provisions
in State rules go beyond simply adopting numeric
criteria”
(Ex.
75).
Rather,
a complete regulatory scheme
includes both formally adopted numeric criteria for toxic
pollutants of frequent occurrence and sound and predictable
methods to develop additional criteria as needed
(Ex.
75).
Furthermore,
the “adoption of numeric criteria does not subrogate
the necessity of
a narrative policy:
Sjuch
a policy
is needed to
insure waters of the State are protected from toxicity when
numeric criteria may not
be sufficient
to provide such
protection”
(Ex.
75).
Section 28.2(b)
of the Act provides that “whenever
a
required rule
is needed,
the Board shall adopt a rule which fully
meets
the applicable federal
law.”
The USEPA has made clear that
it interprets
the CWA as mandating that Illinois adopt water
toxic regulations
no later than February
4,
1990
(Ex.
75).
The
only regulations received by the Board propose both the adoption
of specific numeric standards
for known
toxic pollutants and a
narrative standard for newly discovered toxic substances.
Based
upon the foregoing an~lysisof the CWA and USEPA guidance
document
(Ex.
46), we conclude that
the regulations as proposed
by
the Agency and modified herein are federally required.
A matter correlative to the above—discussed issue should be
dispensed with at this time.
On May
12,
1989,
ISG filed
a Motion
1fl2-3~2
—15—
for Sanctions.
ISG requested that the Board impose sanctions
upon the Agency for its failure to identify those portions of the
proposed rule which are federally required as directed by the
Hearing Officer
in an Order
of January 13,
1989.
ISG asserted
that the Agency’s “Certification and Brief
in Support of the
Certification of Proposed Revisions” did not adequately respond
to this inquiry.
The Agency’s certification provides that both the specific
numeric standards and the narrative standard are required by
Section 303(c)(2)(B) of the Water Quality Act of
1987 and
Sections lol(a)(3),
303(c)(l) and 303(c)(2)(A)
of the CWA (Ex.
44).
Above, we noted our agreement that the proposed regulations
are federally required.
We also find that the Agency’s
certification adequately responded
to the Hearing Officer Order
of January 13,
1989.
Therefore,
ISG’s Motion
for Sanctions is
denied.
Alleged Unlawful Delegation of Rulemaking Authority
Concerns have been raised that the Subpart
F procedures
proposed by the Agency for deriving narrative criteria constitute
an improper subdelegation of the Board’s
rulemaking authority to
the Agency.
(see:
R.
11/18/88 at
224; 12/6/89
at 296—97;
12/7/89
at
539,
554—59;
2/17/89 at
933; 6/13/89 at 66—67,
74,
94—101,
110,
115—16; PC #11
at
3—9;
PC #10 at 21—24).
Pursuant to
Subpart
F,
the Agency calculates various “water quality criteria”
based upon a detailed series of procedures
for those new
substances which are not limited by a specific numeric
standard.
Objectors to the narrative standard assert that
it
constitutes an improper delegation of the Board’s rulemaking
authority because the Agency rather than the Board derives the
numeric criteria.
Such objections ignore the essential
distinction between a standard and a criterion.
The standard
proposed here
is “no toxic substances in toxic amounts.”
Criteria derived by the Agency under the narrative standard
procedure merely operate as a means of defining the standard of
“no toxicity” for a given substances or combination of
substances.
The Board recognizes
its sole authority under the Illinois
Environmental Protection Act
to promulgate regulations
(Ill.
Rev.
Stat.
1987,
ch.
1114,
pars.
1005 and 1027).
As proposed by the
Agency and modified by the Board, criteria derived under the
narrative standard procedures do not rise to the level of
standards.
The Board does not view the Subpart
F procedures as
constituting an improper delegation of
its rule—making authority
to the Agency.
Opponents of the narrative criteria generally seem to agree
that its application
is permissible in the permit setting.
Where
a criterion is included as,
or
is used to derive,
a condition of
102—343
—16—
an NPDES permit,
the regulations proposed today provide that a
person may challenge the general validity and correctness of
application of such criterion (see,
Section 302.210(f)).
The
Agency bears the burden of going forward with proof and
persuading the Board that the criterion is valid and applies to
that person.
When viewing the application of the narrative criteria as a
general water standard concerns of improper delegation of
authority and lack of notice arise.
However, the narrative
criteria proposed by the Agency, and as modified
in the instant
proposal, has
a special limited role.
Exceeding
a criterion does
not
in and of
itself constitute
a violation of the
“no toxicity
standard”.
Viewed in terms of a possible enforcernentaction for
violation of
a general water quality standard, the Agency would
be required
to prove that
a respondent violated the standard of
no toxicity.
Where alleged violation of the toxicity standard
is
based upon an alleged excursion of
a criterion,
the person
bringing the enforcement action has the burden of going forward
with proof and of persuading
the Board of the general validity
and correctness of application of the criterion
(Id).
Based upon the foregoing,
it
is clear
that exceeding a
criterion would not necessarily result
in an automatic finding of
violation.
Respondent may defend against the application of such
a criterion by challenging whether the Agency properly followed
the procedures of Subpart
F,
as well as challenging the data
relied upon by the Agency
in calculating the numeric criterion.
The Agency would be required to justify its procedures,
particularly
in those
instances where unusual species or extreme
exposure times were relied upon.
Based upon its assertion that the narrative standard
constitutes an improper delegation of the Board’s rulemaking
authority,
IERG has suggested that the Board adopt regulations
dove—tailing
the adjusted standard provisions and NPDES permit
process
(R.
64—86;
PC #12).
Given the above—stated rejection of
this “improper delegation argument”,
the Board finds
no need to
implement IERG’s suggested approach.
Participants have also expressed concern over the lack of
notice of criteria derived under
the narrative standard
procedures.
As we noted previously, some of the anticipated
discomfort
stemming from use of
a narrative criteria should
be
eased by the enumeration of
the detailed procedures
to which
the
Agency must adhere
in deriving the criteria.
This procedure
allows interested person to anticipate what constitutes
a “toxic
amount” of
a substance not listed
in Section
302.208.
When
viewed
in the context of an enforcement action,
the
“compliance
inquiry letter”
(Ill.
Rev.
Stat.
1987,
ch.
1114, par.
1031(d))
which requires the Agency to inform
a person of the charges
alleged prior
to issuing
a complaint,
may serve as a form of
102—344
—17—
notice by identifying
the criterion allegedly exceeded.
The
opportunity for public participation
is provided at the
enforcement hearing.
Moreover,
the proposed regulations provide
that no enforcement action may be brought for violation of the
toxicity standard based upon an excursion of a criterion if that
criterion has not either been applied in the alleged violator’s
NPDES permit or
been published in accordance with Section 302.669
(see,
Section 302.210(f)).
Admittedly,
the narrative standard approach suffers from an
inherent element of uncertainty.
However,
the advantages far
outweigh the disadvantages.
The instant proposal attempts to
deal with another
“lack of notice problem” by requiring that the
Agency publish a list of toxicity criteria derived pursuant to
Subpart
F
(see Section 302.669).
EcIS Submittal
Section 28.2(d)
of the Act provides
in pertinent part that
if the EcIS
is not submitted
to the Board
with
a
six month period,
the Board may
proceed to adopt a required rule without an
EcIS.
If the Board notifies the Department
that it will proceed
to adopt a required rule
without an EcIS,
DENR
need not complete
the EcIS.
To the extent possible...the
Board shall conduct a hearing on the economic
impact of the proposed required rule.
DENR’s enabling statute,
in a provision codified at Ill.
Rev. Stat.
ch.
964, par.
7404, goes on
to provide that
if a rule
is required pursuant to Section 28.2,
if the
EcIS
is not completed within six
months...DENR
shall submit to the Board
information concerning the status of the
study,
economic data that has been compiled
during the six month period,
and a full
rationale
for why the study has not been
submitted.
As aforementioned, DENR timely filed some economic
information, and announced its intention to file additional
information in mid—November.
In its transmittal letter, DENR
included an explanation of the EcIS status and rationale
for why
a complete study had not been submitted.
As
to the EcIS status, DENR explained that,
“this installment highlights the key
methodological distinctions, identifies the
102—34 5
—18—
universe of affected facilities,
and analyzes
discharger compliance under existing and
proposed rules governing toxic releases to
receiving waters of the State.
A subsequent
installment will translate the ability of
subject point sources to comply under either
control regime into economic and environmental
costs and benefits”.
DENR notes that a contract has been let
for completion of this
work,
scheduled for completion in mid-November.
DENR suggests
that this and other economic information could be considered
during November hearing days previously reserved by the Hearing
Officer.
DENR asserts that difficulty
in completion of an EcIS
in
this proceeding flow from the fact that RES 89—1 did not
implement one of
SB 1834’s amendments to Section 27(a),
that
which specifies,
“To aid the Board
in determining whether an
economic impact study
is needed and
to assist
the public in determining which facilities
will be impacted,
the person filing a proposal
shall describe,
to the extent reasonably
practicable,
the universe of affected sources
and facilities and the economic impact of the
proposed rule.”
DENR asserts
that,
In the instant docket,
no information on
either affected sources or
economic impacts
was submitted with the proposal for
rulemaking.
Under such circumstances,
it
is
virtually impossible
to complete an EcIS
in
the abbreviated period specified by SB 1834.
It
is worth noting that when SB 1834 was
crafted,
the Department’s support for
the six—
month deadline was predicated on an
elaboration of the filing requirements
to
include economic information.
Yet,
in this
case,
the Department
is required
to expedite
the completion of
its analysis, without
a
correlative obligation imposed on the
proponent
to buttress
its suggested
regulation.
•Since the EcIS was initiated,
the
ENP
staff have met several times with Agency
personnel
to obtain critical data.
While the
Department has made significant progress
in
assimilating the information provided,
it
is
not possible
at
this juncture to finally
102—346
—19—
estimate the costs and benefits of the
proposed regulations.
The Board appreciates the difficulty which DENR has
experienced relative to the tightness of the deadline here
involved and the contents of the Agency’s proposal, as the Board
has been laboring under similar constraints.
However, questions
concerning the identity of impacted facilities were raised early
on
in this proceeding,
and the Board has no reason to believe
that since that
time the Agency has not provided information “to
the extent reasonably practicable.”
The entire thrust
of Section
28.2’s exceptions
to the general rulemaking requirements of
the
Act
is to require that rulemaking proceed on the basis
of what
information can be gathered within the time constraints of
applicable federal deadlines.
While
it could be argued that the
Agency should have been aware of the desireability prior
to the
filing of its proposal,
this record contains no information
detailing any practical difficulties the Agency may have
encountered during the period
in which
it was crafting the
proposal following adoption of the CWA amendments mandating the
instant proceeding,
and the Board will not engage
in speculation
that the Agency has been other than diligent
in this matter.
DENR’s proposed timetable for the completion of
its second
EcIS installment poses
real practical difficulties
to timely
completion of this rulemaking.
As outlined in the July 12
Hearing Officer Order, given the APA 45 day
second notice period,
the Board must adopt
a second notice Order
no later than December
6, but preferably
in late November,
if rules are
to be
in effect
by February
4,
1990.
The days which have been reserved for
hearing, November
6, 7,8, were chosen as the latest days on which
hearing could be held which did not involve multiple schedule
conflicts among agency personnel and major participants and which
would allow for expedited receipt of transcripts and a very brief
post—hearing comment period.
Any information which cannot be
presented to the Board on or before November
17,
1989 cannot
practically be considered by the Board
in this proceeding;
information which
is not presented at the November
6,
7, and
8
hearings and which
is therefore not subject to cross questioning
must be afforded lesser weight than that which is.
Given these constraints, DENR may wish to consider
this
Opinion a formal notification pursuant to Section 28.2(d)
that
the Board will proceed to adopt these
rules without the second
installment of the EcIS
if
it cannot be presented on or before
November
17,
for the purposes of determining whether
it wishes to
complete the second installment.
Publication of First Notice
Section 28.2(f)
of the Act by its terms requires first
notice publication of proposed federally required rules in the
102—347
—20—
Illinois Register no later
than six months after Board
determination whether an EcIS should be conducted;
as the Board
has sixty days in which to make its EcIS determination after
accepting
a proposal for hearing, this publication must be made
within
8 months of a proposal’s acceptance.
This requirement
could not be literally met
in this proceeding, as
it assumes that
an Agency certification would be filed contemporaneously with a
proposal, and that the Board would be making the determination
made by DENR here,
in RES 89—1 the Board stated that
it would
construe the Section as requiring publication within six months
of the Agency certification;
this would have been August
9.
However, as the Board was led to anticipate the filing of a
fourth amended Agency proposal on or about that date,
and further
anticipated adoption of its own first notice proposal reasonably
soon thereafter,
we deferred first notice publication.
The
proposal contained
in the Board’s Order today encompasses close
to fifty pages of
text.
As explained in some detail below,
the
Agency’s proposal even as amended August
9 contains much material
which does not comport with substantive and technical
requirements of
the APA, and clearly would not have been accepted
by the Administrative Code Unit for publication due
to
the
deficiencies.
Today’s proposal will appear
in the Illinois
Register approximately seven months following the Agency’s
certification, one month in advance of the required publication
of
a proposal filed after
the effective date of Section 28.2.
Thus, while there is arguably a technical violation of Section
28.2(e),
the Board believes this action
is consistent with the
intent of the Section during this “phase
in”
of
its requirements,
and results
in publication of the proposal the Board actually
contemplates adopting.
COMPARISON OF CURRENT VERSUS PROPOSED REGULATIONS
DENR has prepared
a report titled “Analysis
of Proposed
Revisions
to Subtitle C Toxics Control
Program:
Pollution Control
Board Docket R88—2l.
Hearing Copy”
(“DENR report”), filed with
the Board on August
9,
1989.
Chapter
2 of this report
includes
comparisons of existing
regulations
for control of water toxics
with the February
9,
1989 version of the Agency’s proposal.
These comparisons appear
to be valid in all regards,
excluding
only minor changes made
by the Agency within
its August
9,
1989
version or made by the Board as discussed herein
(see
“Modifications
to Agency Proposal”, below).
Accordingly,
the
interested person
is directed to the DENR
report for
a general
overview of this subject.
One comparison warrants
repeating here,
however.
That
is
the comparison between the numeric General Use Standards found at
existing and proposed Section
302.208.
The proposed General Use
Standards fall
into one of
five categories.
102—348
—21—
The first category consists of chemical constituents for
which the current standard
is replaced by standards for both
acute and chronic toxicity,
and which are based on the ambient
hardness of the water.
The chemical constituents are cadmium,
trivalent chromium, copper, and lead.
For each of these chemical
constituents toxicity has been demonstrated to be dependent on
hardness
(Ex.
5,
7,
9 and 11
),
and accordingly the standard
is
defined as a function of the ambient hardness.
In order
to compare the current versus proposed standards
for chemical constituents
in this first category,
it
is necessary
to specify ranges of hardness.
In the following table the range
of hardnesses used to show the possible range of values assumed
by the standards is
27 mg/l to 2500 mg/l.
This apparently
represents the extremes of hardnesses ever recorded in Illinois
streams
(DENR report at 2—il).
In the following comparison,
all
standards are expressed in micrograms per liter
(ug/l).
Cd
Cr(+3)
Cu
Pb
Existing Standard
50
1000
20
100
Proposed Standard
Acute
(range)
2.2—50
594—24,640
5.2—375
15—100
Chronic
(range)
0.4—14
71—2937
3.9—188
n.a.
The second category consists of chemical constituents for
which the current single—valued standard
is replaced by standards
for acute and/or chronic toxicity.
These consist of arsenic,
hexavalent chromium, cyanide,
and mercury.
The comparative
standards,
expressed in micrograms per liter
(ug/l),
are as
follows:
As
Cr(+6)
CN
Hg
Existing Standard
1000
50
25
0.5
Proposed Standard
Acute
360
16
22
0.5
Chronic
190
11
5.2
n.a.
It
is to be noted that the cyanide standard is also proposed
to be changed with respect
to analytical method,
as reflected in
a change in STORET number.
The existing cyanide standard
is for
total cyanide
(STORET 00720), whereas the proposed cyanide
standards
for for weak acid dissociable cyanide
(STORET number
00718).
The acceptance of this change
is based upon
recommendations from both the Agency
(PC #8 at pars.
27—25)
and
Sauget
(R.
6/14/89 at 309—11).
The third category consists of a single chemical
constituent,
total residual chlorine,
for which
a toxicity
standard
is today specified for
the first
time.
The proposed
limits are 19 ug/1 as an acute standard and 11 ug/l as
a chronic
102—349
—22—
standard.
The fourth category consists of those chemical constitutents
for which no change in the existing standard
is proposed.
These
chemical constitutents are:
Barium
Phenols
Boron
Selenium
Chloride
Silver
Fluoride
Sulfate
Manganese
Total Dissolved Solids
Nickel
Zinc
The final category contains only the parameter iron.
The
Board has been requested
to delete the iron standard by IERG and
Commonwealth Edison
(R.
6/13/89 at 196—201).
Although the Board
finds some merit
in the arguments presented,
it does not believe
that this matter has been sufficiently explored to fully support
deletion of this standard.
The Board will, however, propose such
deletion for the purposes of first notice.
The Board anticipates
that the proponent of
the deletion will further address the
matter
at hearing.
MODIFICATIONS TO AGENCY PROPOSAL
Today’s proposal includes numerous modifications of the
Agency’s proposal.
Most, but not all, of these are intended to
be nonsubstantive.
The modifications are based upon
recommendations from various interested persons and upon the
Board’s perspective.
Discussion of the modifications
is
presented in this section
in the general order
in which they may
be found
in today’s proposal.
Unless otherwise specifically
noted, all modifications referenced are with respect to the
Agency’s proposal filed August
9,
1989
(PC
#8).
The Board also notes
that there are
likely some instances
in
which deletions have been made from the Agency’s proposal which
have not been metioned or explained.
General Formatting Changes
Although the Agency’s proposal of August
9,
1989
forms the
basis of
the proposal offered today, extensive edits have had to
be made to the Agency’s proposal
in an attempt
to conform the
text
to drafting and formatting requirements of
the APA and the
Illinois Administratiye Code
(1
Iii. Adm. Code lOO.Subpart
C).
The strictly drafting and editing changes
fall
into the following
general areas:
1)
“Proofreader edits” such as form of
tables,
indentation
levels,
and Administrative Code
10
2—3
50
—23—
citation forms;
2)
Revision of existing language which the Agency
has not sought to amend but
is “antiquated” by
today’s APA standards and which accordingly needs
to be considered;
3)
Problems of incorporation by reference,
particularly of test methodologies and procedures
which are
to be found in documents which are not
federal regulations, guidelines,
or standards,
or
guidelines of national organizations;
4)
vagueness problems caused by:
a)
Use of the passive voice,
so that,
for
instance,
it
is unclear whether
the Agency
or some other person must “demonstrate x”;
b)
Lack of definition of terms such as “current
methods” and “acceptable methodologies;
C)
Lack of specificity as to how a person goes
about seeking Agency approval for deviation
from general requirements;
d)
Lack of specificity as to whether an Agency
determination is conclusive;
and/or
e)
Variant use of commanding verbs, such as
“shall”,
“must”,
“may”, etc.
Most of these deficiencies were recognized by the Board and
communicated to the Agency relatively early in this proceeding.
As noted in the Procedural History discussion above,
a prehearing
conference was held on September
28,
1988 at the request of the
Agency and IERG.
In response thereto the Board noted by Order
of
October
6:
The Board is advised that there was inadequate
time to discuss various staff concerns about
the
drafting of the rules and conformance with
requirements of the Administrative Procedure Act
(“APA”) and Illinois administrative law.
These
concerns include, but are not limited to, whether the
proposed delegation to the Agency of authority to
define and establish limits
for various
“criteria” by
Agency
rule,
is an impermissible subdelegation of the
Board’s
rulemaking authority, uncertainty concerning
procedural
steps and appeal provisions, and potential
APA problems such as formatting, vagueness,
improper
incorporations by reference and the like.
102—35 1
—24—
The Board accordingly authorized the scheduling of another
prehearing conference “to deal with these)
drafting issues”.
The conference was held on October
14,
1988.
General drafting
comments,
as well as a copy of the Agency’s proposal with
suggested editorial and format corrections, were prepared in
memorandum form by Board staff and served upon the Agency and all
persons on the notice list on October
28,
1989
(Ex.
77).
Although some of the recommendations made in the memorandum have
been incorporated by the Agency
in later versions of the Agency’s
proposal, many of them,
including some of the most critical, have
not been addressed by the Agency.
Failure to correct deficiencies of these
types can be fatal
to a proposal during its review by the Board,
Illinois
Adminstrative Code Unit,
or Joint Committee on Administrative
Rules,
or during appellate review.
The Board has done
its best
to correct as many of these problems as possible during the
limited time the most recent Agency proposal has been
available.
However, given the number
of changes necessary,
the
Board
is wary as to whether the proposal
is yet capable of
passing drafting and formatting muster.
Nevertheless, given the
exigencies of moving a proposal to first
notice,
the Board must
decline
to reject
the proposal and trust that remaining
deficiencies can yet be corrected.
The number of drafting and formatting changes which the
Board has introduced herein are too many to allow individual
exposition.
However,
in the following sections of this Opinion
the Board discusses those which it believes
to be most salient,
and particularly those which
it believes may also go
to the
substance of the proposal.
Section 301.106 Incorporations by Reference
A
new
Section has been added at Section 301.106 for
incorporations by reference used within Subtitle
C.
The
reference inclusions
in today’s proposal are directed solely
to
the subject matter of the instant proposal.
However,
Section
301.106
is set up such that
it can also accommodate incoporations
by reference for any future amendments
to Subtitle C.
The Board futher
notes
that
this Section does not contain
references
to all of the various materials which
the Agency has
referred to in
its August
9 proposal, such as annual reports and
monographs
(Section 302.100) and journal articles
(Section
302.654(b)(2)).
Section 6.02 of the APA allows
for incorporation
by reference without publishing the incorporated material
in full
only “rules,
regulations standards and guidelines”
of
“an agency
of the United States” or
“a nationally
recognized organization or
association.”
Further requirements are that
the entity
originally issuing the ~materialmake copies of the material
102—352
—25—
readily available to the public and that the agency incorporating
the material identify the material by location and date,
incorporate no future amendments or editions, and maintain copies
of all such material for inspection.
Additionally,
if
incorporation is sought of guidelines or standards of an agency
of the United States government,
such incorporation must be
approved in writing by the Joint Committee on Administrative
Rules.
The Board has included in this Section all material which
it
believes meets these requirements, and has deleted from the
proposal references to documents which do not.
Any materials
which do not meet these requirements may be referenced only if
they are set out in full as an appendix
to the rules and filed
with the Secretary of State.
The Agency
is invited to provide
comment as to whether any such deleted references should be so
treated, and to provide necessary copies.
There is
a difference
in the method of incorporating
Standard Methods and the ASTM standards.
Standard Methods is a
book which is completely revised every few years.
The most
recent edition,
the 1985,
16th Edition
is cited.
The 1989, 17th
Edition will soon become available.
On the other hand, ASTM
standards are published as pamphlets as they are revised
throughout the year, and the entire collection of current
standards are published
in an annual book.
The Board has cited
to the individual ASTM standards,
rather than the entire
collection.
This avoids citing
to extraneous material, and
allows individual updating of standards.
The alternative would
require the perodic repurchase of the entire ASTM yearbook,
a
very expensive proposition.
Section 301.107 Severability
A general severability clause applicable to the whole of
Subtitle C has been added at Section 301.107.
This addition
is
made by the Board
to conform Subtitle C with general regulatory
drafting practice.
Section 302.100 Definitions
Several alternations to the definitions Section at 302.100
have been made.
The general purpose of
these is to conform the
Section with Illinois Administrative Code formatting and
incorporations—by—reference requirements.
Among the changes are:
1)
ASTM and Standard Methods citations to measurement
procedures have been added to the definition of
hardness.
2)
The definition of total residual chlorine (“TRC”~~
proposed by the Agency and proposed to be modified by
102—3 53
—26—
IERG (PC #12 at 1—2) has been modified to identify
specific methods by which TRC is measured.
This change
is made
to conform the definition to Illinois
Administrative Code standards for incorporation by
reference.
3)
The federal laws and publications listed in the Agency’s
definition of “toxic substance” have been replaced by a
single reference to
40 CFR 302.4.
40 CFR 302.4
is
a
consolidated USEPA listing of substances listed pursuant
to most of the federal statutes cited
in the Agency’s
proposal.
The Board believes that the single reference
therefore covers most,
if not all, of
the substances
possibly of
interest under the instant proposal.
This change is made because the Illinois Administrative
Code does not authorize the incorporation by reference
of
federal
laws.
Furthermore,
a member
of
the public
could not easily get from the statutory references
to
the
listing,
or discover that
40 CFR 302.4
is a
consolidated listing.
Moreover,
the Agency proposal
appears to contemplate incorporation of future listings,
which is also prohibited under the Illinois
Administrative Code.
The Agency also proposed to reference two private
listings,
the National Toxicology Program listing and
International Association
for Research on Cancer
listing, in the definition of “toxic substance”.
The
Illinois Administrative Code limits incorporation by
reference to nationally recognized organizations and
federal agencies.
In the absence of
a demonstration
that the organizations are “nationally recognized”,
the
Board has not proposed
to rely on
them.
Presumably,
USEPA will take action on the listing of
these
organizations, and include the listings
in
40 CFR 302.4.
4)
The definition of
ZID contains an explanation of the
terms
“immediate” and “rapid” based on the Agency’s
discussion
in its August
29 Justification
(p.
2—3).
The
Board believes such further definition
is needed to
avoid JCAR objection.
Comment on the appropriateness
of
the language choice
is requested.
External References
in Section 302.101
Corrected citations
to the Parts external to Part 302 have
been added in subsections
(b)
through
(e).
Section 302.102 Mixing
Zones and ZIDs
Section 302.102 has been broadly reorganized and altered.
102—3 54
—27—
Organizational changes include referencing ZIDs in the Section
title and aggregating the various restrictions which apply to
mixing zones within subsection
(b).
The organizational changes
have been made to enhance clarity of the proposed amendments
without altering their content.
The first sentence of subsection
(a) contains a substantive
modification.
As Sauget points out
(PC #11 at 10),
the phrase
“an opportunity shall be allowed for mixture”,
as used in both
the existing rule and the Agency’s proposal,
is unnecessarily
vague.
The Board also believes that
it may not be acceptable
under APA standards.
The sentence has been reworded to make
clear that ZIDs and mixing zones are to be granted by the Agency
as NPDES permit conditions pursuant to the limitations prescribed
in subsection
(b).
Interested persons should also be aware that
the restrictions of subsection
(b)
could,
in special
circumstances,
limit a mixing zone to such a small size that
its
existence becomes academic.
An example would be where
a
discharge
is directly in an endangered species habitat
(see
Section 302.102(b)(4)).
The Board notes that
there are three sentences of a general
philosophical nature in existing Section 302.102(a) which are
today being recommended for deletion.
These are the sentences:
“The size of the mixing zone cannot be uniformily
prescribed.”
“The governing principle is that the proportion of
any body of water
or segment thereof within mixing
zones must be quite small
if the water quality
standards are
to have any meaning.”
“This principle shall be applied on a case—by—case
basis to ensure that neither any individual source
nor the aggregate of sources cause excessive zones
to
exceed the standards.”
In supporting the deletion of these sentences,
the Board
in
no way
is intending to imply repudiation of the
ideas they
express.
To the contrary, the Board believes that the ideas
contained therein remain fundamental underpinnings for applying
and allowing mixing zones.
Nevertheless, the sentences are being
recommended
for deletion because, although acceptable under prior
adminstrative law standards,
they are not likely acceptable
today.
Additionally,
the Board believes that the essence of
these sentences has been retained within the general
prescriptions of Section
302.102(b).
The various portions of subsection
(b) have been drawn from
the following sources:
102—355
—28—
Section 302.l02(b)(l)
Agency Proposal, Modified
“
(b)(2)
Agency Proposal, Modified
(b)(3)
Agency Proposal
“
(b)(4)
Agency Proposal
“
(b)(5)
Agency Proposal
(b)(6)
Existing 302.102(c)
“
(b)(7)
Existing 302.102(c), Modified
“
(b)(8)
Existing 302.102(c), Modified
(b)(9)
Existing 302.102(a)
“
(b)(lO)
Existing 302.102(a)
“
(b)(ll)
Agency Proposal, Modified
Subsection
(b)(l)
is built on the premise advanced by the
Agency,
with which the Board concurs,
that a mixing zOne should
be no larger than would be required to accomodate an optimally—
designed outfall structure.
The burden of providing the most
efficient mixing should be on the discharger.
If the discharger
chooses to provide for less than the optimum mixing,
the
discharger should not be able
to claim a larger mixing zone as a
result.
Accordingly, subsection
(b)(l)
limits
the mixing zone
to
a size equivalent
to that which would be needed to accomodate an
optimally—designed outfall.
Subsection
(b)(2)
is substantially the Agency’s
recommendation regarding tributary mouths,
except that
it focuses
on restriction of movement of aquatic life between tributary and
main stream rather than the narrower “migrating”
of aquatic life.
Subsections
(b)(7) and (b)(8)
are substantially the second
and third sentences of existing subsection
(c).
However, they
have been modified to clarify that the strictures apply
to
combinations of mixing zones as well as
to single mixing zones.
This provision is consistent with the general philosophy of
mixing zones
(see above)
Subsection
(b)(ll)
contains the provision that no mixing
zone may encompass a
surface area greater than 26 acres.
The
Board is well aware of
the controversy which has surrounded this
issue.
The Board nevertheless believes that there must be
some
upper limit to the size of mixing zones.
A mixing zone
is,
afterall,
a portion of
a water body where
less
than optimum water
quality
is allowed
to exist based upon striking of
a balance
between the costs of environmental control and the quality of
the
environment.
Accordingly,
there must be some upper
limit
to the
size of mixing zones where
the balance runs so contrary
to the
interests
of the environment that
a line has
to be drawn.
The
Board believes that the Agency’s proposal of a 26—acre upper
limit
is
an
appropriafe
place
to
draw
the
line.
The
vast
majority of discharges
in Illinois should be
readily able to
accomodate
to this limit.
The few who may believe that
a larger
limit
is necessary and
justified for
their particular
circumstances are, as always,
free to plead
their case before the
102—356
—29—
Board
in an adjusted standard or site—specific proceeding.
Subsection
(c), which deals with ZID5,
is proposed herein
essentially as proposed by the Agency.
However,
the phrase
“If
circumstances warrant” has been deleted, consistent with deletion
of the similar
language in subsection
(a)
(see above),
and
it
is
made clear
that ZIDs are granted as NPDES pent conditions.
Section 302.101(d) makes clear that procedures
for
application,
review, and appeal
of ZIDs and mixing zones are the
same as those
for NPDES permits generally.
The Board lastly notes that question has been raised as to
whether the Agency would intend ever
to allow mixing zones or
ZIDs
in envrionments where the effluent constituted most or all
of the stream flow (i.e.,
7Q10 of zero).
The Agency
is requested
to comment on this matter.
Section 302.208 Chemical Constituents
1)
Sufficiency of Four Samples
in CS demonstration
The second sentence
in Section 302.208(b) has been altered
to read:
The samples used to demonstrate compliance or lack of
compliance with a CS must be collected in a manner
which assures an average representative of the four
day period.
The Agency’s language
read:
A sampling schedule must be arranged to ensure that
the average value achieved is representative of the
entire monitoring period.
This change
is intended solely to address drafting deficiencies
in the Agency’s version.
2)
Applicability of AS and CS
in Mixing Zones
The first part of
Section 302.208(c)
regarding mixing zones
has been rewritten to
read:
“Where a mixing zone has been
delineated pursuant to Section 302.102,
the following apply:”.
Similarly,
the phrase “where approved by the Agency”
has been
deleted from 302.208(c)(1).
Both changes are necessary to
conform Section 302.208 to Section 302.102
(see above).
3)
Tables of General Use Standards
The format of
the amendments to Section 302.208 has been
102—357
—30—
slightly altered.
The format herein consists of the deletion of
the entire existing Section 302.208 and its replacement by the
text of the Agency proposal.
It
is believed that this formatting
follows the accepted Administrative Code Unit style.
It
is to be
emphasized that no substantive changes are intended to flow from
this formatting change, other than those argued by the Agency.
In particular,
the Board intends no change in the standards for
those constitutents found in subsection
(e).
In addition to the overall
formating change to this Section,
some internal format changes have been made within the subsection
(d)
table.
These are principally intended to conform the
contents
to Administrative Code Unit form and to allow fitting of
the table beneath the textual portion of subsection
(d).
No
substantive changes are intended to accompany the formatting
changes.
The term “total residual chlorine” has also been replaced by
its abbreviation, TRC,
as defined
in Section 302.100.
The Board
also notes
that the
“A” constant for the cadmium acute standard
appears
to differ from that in the guidance document.
The
Agency’s comment
is requested.
Subpart
F:
Procedures
for Determining Water Quality Criteria
Subpart
F has been extensively edited
in an attempt
to
conform it
to Illinois Administrative Code practice.
Among
changes which have been made are:
(1) elimination of all
superscripts and subscripts,
(2) elimination of vague adjectives
and adverbs,
such as
“appropriate”, “reasonably”,
“adequately”,
etc.,
(3)
revisions of capitalization and other punctuation,
(4)
elimination of passive—voice constructions were practical,
and
(5) elimination of improperly cited incorporations by
reference.
More specific alterations
to Subpart
F are discussed
below.
Section 302.604 Mathematical Abbreviations
A new Section,
302.604, has been added
for the purpose of
specifying mathematical conventions and abbreviations used within
Subpart
F.
Section 302.606 Modification
The Agency’s Section 302.606 has been rewritten.
As
proposed by the Agency,
this Section was unacceptable under
the
Illinois Administrative Code.
The Board has reworded
it
in an
attempt
to make
it conform with
the Illinois Administrative Code,
but solicits comment.
102—358
—31—
Sections 302.612 and 302.627
The reference to “modified USEPA procedures” has been
deleted because of lack of clarity.
Reference has been made to
the Sections where procedures are set forth.
Sections 302.615, 621,
630 Substitution of Species
Subsection 302.615(b)
in the Agency’s proposal contained
language regarding substitution of species where data on non-
resident species
is unavailable,
as follows:
If data are not available for resident species, data
for non—resident species, upon approval by the
Agency, may be substituted species.
This language
is unacceptable to the extent that
it fails to
specify the criteria upon which approval will
or must be granted
by the Agency.
Accordingly,
the sentence has been replaced by
the following:
If data are not available for resident or
indigenous
species, data for non—resident species which most
closely resemble resident or indigenous species with
respect to taxonomic level, habitat and environmental
tolerance may be substituted.
Similar language difficulties occur
in the Agency’s proposal
at both Section 302.621(b) and 302.630(b).
In both places the
following language:
Three species must be tested initially, and these
must represent species from ecologically diverse taxa
to the extent possible.
The exact species
to be
tested must be determined by the Agency on a
case—by—case basis with the objective of using
resident or representative species.
has been replaced with:
Three species must be tested initially.
These
species must be resident or indigenous species and
must exhibit ecological diversity.
If data are not
available for resident or indigenous species, data
for non—resident species which most closely resemble
resident or
indigenous species with respect to
taxonomic level,
habitat and environmental tolerance
may be substituted.
Section 302.615 Calculation of
GMAVs
The phrase “The following procedure” has also been deleted
102—359
—32—
from Section 302.612(b)
to remove the ambiguity of this
reference.
The Board assumes that the “following procedure”
refers
to the procedure of Section 302.615.
Sections 302.615
(f)
and
(g) have been broadly rewritten in an attempt at
clarification.
Section 302.627 Determining the Chronic Aquatic Toxicity
Criterion for an Individual Substance
—
General Procedures
In the absence of specific acute/chronic
ratios,
Section
302.627(d)
provides a default mechanism by which the CATC must be
calculated by dividing the FAV by
a factor of
25.
However,
Exhibit
55, which was a study of the Illinois Aquatic toxicity
database,
indicates that the factor by which
the FAV must be
divided
is a value of 154
(after standardizing chronic data
obtained from short—term embry—larval/early life tests)
or
a
value of
116
(using raw data).
Comments are requested on this
issue and the Board asks
for
reason as
to why the Board should
not adopt
a default value
for the Acute/Chronic ratio of between
100
to 150 in Section 302.627(d).
Section 302.645 Deletion
of ADI Method
The first “method” for determining ADI has been deleted, as
it
is simply a list of values published by USEPA.
However,
the
method by which those values are calculated
in embodied
in the
second and third method which uses the maximum contaminant or
allowable levels.
Section 302.654 Journal Citation
The Agency proposal referenced a 1984 journal article by
Crump at Section 302.654(b).
The Illinois Administrative Code
prohibits the use of
journal articles
in this manner.
Furthermore,
there
is reason to believe that
the method has
evolved since 1984.
The Board therefore proposes
to reference
to
tJSEPA’s
“Mutagenicity and Carcinogenicity Assessment
of 1,3—
Butadiene”
as
a model for how to accomplish
the low—dose
carcinogenic risk assessment as used in the Crump article.
The
Board would prefer
to cite a “how-to” manual,
if one can be found
in a format acceptable under
the
Illinois Administrative Code
(i.e., published by a federal agency or nationally recognized
standards organization).
The Agency proposal also cited a notice of availability of
a
water quality criteria document at
45 FR 79318, November
28,
1980.
This
is inadequate
in that one would have
to go to the
notice
to get the reference to the actual document.
Moreover,
the actual document
is probably now out—of—date and out—of-
print.
The Board has therefore instead referenced
to a more
recent version,
“Quality Criteria for Water 1986”, whLch
is
currently available
to the public.
Hopefully,
it includes the
102—360
—33—
information in the earlier document.
Section 302.633 Kow
The Board has referenced ASTM E 1147 as a standard method
for measuring the n—octanol/water partition coefficient
(“Row”)
at Section 302.663.
Section 302.669 Listing of Derived Criteria
The Board has modified the Agency’s proposal for listing of
derived criteria
to require updating at least quarterly,
and also
to require publication of such lists
in the Illinois Register.
The purpose of this requirement
is enhancement of public access
to and awareness of such criteria.
Section 303.362 Horseshoe Lake Discharges
The Board
is incorporating a new Section 302.362
as
recommended by the ISG (PC #10 at
4)
for discharges
from Granite
City Division of National Steel Corporation (“GCD”)
to Horseshoe
Lake
(R.
at
376—81;
Exh. 69;
PC #10, Attachment
#3).
This
Section specifies that
the GCD discharges are allowed a mixing
zone and ZID of the maximum allowable size.
Phrasing of the
Section has also been tightened—up relative to the ISG proposal,
but without change to the intent of the ISG proposal.
The Board
is including this Section for First Notice, but questions whether
it should not be deleted since this could be handled through the
permit
system.
Section 305.102 Clean Water Act References
The existing language at Section 305.102(a)
contains a large
number of references to the Clean Water Act.
These are
essentially
a restatement
of the scope of the permit requirement
under Part 310,
as adopted by the Board in R86—44.
The Clean
Water Act references have been translated into State law in the
definition of “industrial user”
at
35
Ill. Adm. Code 310.110,
and
the 15
load requirements are the same.
Rather than repeat this
in Section 305.102(a),
Part 310
is referenced.
The existing language at Section 309.152(a) also references
standards “established under Section 307(a)
of the CWA for
a
toxic pollutant”.
Because the instant proposal appears
to be
implementing Section 307(a)
in the new Subpart
F,
the Board has
referenced Subpart F instead, avoiding the possible complexities
of federal references.
Part 309 External References
Subsections 309.103(b)
and
(c) have been amended to provide
correct citation
to rules outside of Part 309.
Although these
102—361
-34-
amendments do appear
in the Agency most recent proposal
(PC
#8 at
proposal p.
28),
they do not appear
in the form required for
amendments
to existing language.
IT IS SO ORDERED.
J.D. Dumelle concurs.
I,
Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certif~,that the above Opinion was adopted on
the
~
day of
____________,
1989,
by a vote of
~‘~)
~.
orothy M. ~nn,
Clerk
Illinois Pd~1utionControl
Board
102—362
