ILLINOIS POLLUTION CONTROL BOARD
    January
    5,
    1989
    IN THE MATTER
    OF:
    PROPOSED AMENDMENTS TO
    )
    R88-21
    TITLE
    35, SUBTITLE
    C
    (TOXICS CONTROL)
    INTERIM ORDER
    OF THE
    BOARD
    (by R.C. Flemal):
    The
    first matter comes before the Board
    on
    a December
    22,
    1988 motion by
    the Illinois Environmental
    Protection Agency (‘Agency”)
    requesting the Board
    to direct the Agency
    to draft
    a consolidated rule proposal
    incorporating the
    proposed Narrative Taxics Control
    (Part
    377) into 35
    111. Adn. Code
    Sec. 203
    (the Board’s Water Quality Standards).
    As
    requested the Board hereby
    grants
    this motion
    and directs the Agency to draft
    a consolidated rule proposal
    incorporating the Narrative Toxics Control
    (Part 377)
    into
    35
    111.
    Adm. Code
    Sec.
    203.
    The second matter comes before the Board upon questions
    raised
    in the
    December 6—7,
    1988 hearings concerning the status of
    proposed Part 379, the
    “Illinois Mixing Zone Policy”, to which the Agency indicated it would take
    Board direction.
    After consideration, the Board directs the
    Agency
    to propose
    pertinent
    parts
    of Part 379 as Board
    rules.
    The third matter comes before the Board
    on
    a December 22,
    1988 motion by
    the Agency requestin~jt~ie3oard
    to
    “consider and adopt” tne Proposed
    Amendments
    to the
    Illinois Toxic Control Strategy and
    the Proposed Amendments
    to Title
    35:
    Subtitle C.
    The Board hereby accepts,
    but does not adopt,
    the
    Proposed Amendments
    to the Illinois
    Toxic Control Strategy and
    the Proposed
    Amendments to Title
    35: Subtitle C.
    The fourth matter comes
    before the Board on
    an oral motion made at
    hearing by the Illinois Environmental Regulatory Group
    (“IERG”).
    The motion
    requests that hearings be suspended until
    February to allow 1ERG opportunity
    to minimize their areas
    of disagreement with the Agency, and to consider
    further amendment to the proposal.
    Regardless
    of the outcome
    of any
    negotiations between the Agency and
    IERG and any other group, the Board finds
    merit
    in suspending further hearings until
    February to allow the Agency time
    to prepare amendments
    to
    its proposal consistent with its
    Order;
    no hearings
    shall
    be held
    in January,
    1989.
    The fifth
    and final
    matter arises due to certain amendments
    to the Act
    enacted
    in
    SB
    1834, P.A. 85-1048, effective January
    l,
    1989.
    Among other
    amendments,
    SB
    1834 adds
    a new Section
    23.2 to the Act.
    New Section 28.2
    provides:
    Section 28.2
    (a)
    For the purposes of this Section,
    “required rule” means
    a rule that
    is needed
    to meet
    the
    requirements of the
    federal
    Clean Water Act,
    95—237

    -2-
    Safe Drinking Water Act, Clean
    Air’
    Act (including required submission
    of
    a State
    Implementation Plan),
    or Resource Conservation and
    Recovery Act, other than
    a
    rule required to be adopted under
    subsection
    (c)
    of Section 13, Section
    13.3, Section 17.5,
    subsection
    (a) or
    (d) of Section 22.4, or subsection
    (a)
    of
    Section 22.7.
    (b)
    Whenever a required rule is needed,
    the Board shall
    adopt
    a rule
    which
    fully meets the applicable federal
    law,
    and which
    is
    not
    inconsistent with any substantive environmental standard or
    prohibition which
    is
    specifically and completely contained and fully
    set forth within any
    Illinois statute, except
    as authorized
    by this
    Act.
    Ti
    deteraiiiig whether the
    rule fully meets the applicable
    federal
    law, the Board
    shall
    consider all
    relevant evidence
    in
    the
    record.
    (c)
    Within
    21 days
    of the date that the Board accepts
    for hearing
    a
    proposal
    for
    a required
    rule,
    any person may request the Board
    to
    determine that an economic impact study
    ShOuld be
    prepared or that an
    economic
    impact study should not be
    prepared.
    Such request shall
    be
    made to the Board
    in writing and shall
    detail
    the reasons for the
    request.
    To aid
    the Board
    in determining whether an economic impact
    study
    is needed, the person filing
    a
    request that an economic study
    be prepared or requesting that
    an economic study not be prepared
    shall
    describe
    to the extent
    reasonably practicable the universe of
    affected sources and facilities and the economic impact of the
    proposed required
    rule.
    Within
    60 days of the date that the Board accepts
    for hearing
    a
    proposal
    for
    a required
    rule, the Board
    shall
    determine whether
    an
    economic
    impact
    study should
    be
    conducted.
    The Board
    shall
    reach
    its
    decision based
    on
    its assessment of the potential economic impact
    of
    the rule, the potential
    for consideration of the economic impact
    absent such
    a study, the extent,
    if any, to which the Board
    is
    free
    under the statute authorizing the rule to modify the substance of the
    rule based upon the conclusions
    of such
    a study,
    and any other
    considerations
    the Board deems appropriate.
    The Board may identify
    specific issues to
    be addressed
    in the study.
    (d)
    If the Board determines that an economic impact study
    is necessary,
    the Department shall
    prepare an economic impact study
    in accordance
    with “An Act
    in
    relation to natural
    resources,
    research, data
    collection and environmental studies”, approved July
    14,
    i978,
    as
    amended.
    The economic impact study shall
    be prepared within
    6 months
    of the date of the Board’s decision that an economic impact study
    should
    be conducted.
    If the economic
    impact study
    is
    not submitted
    to the Board within that 6 month period,
    the Board may proceed
    to
    adopt
    a required
    rule without
    an economic impact
    study.
    If the Board
    notifies the
    Department that
    it will proceed to adopt
    a required rule
    without
    an economic
    impact study,
    the Department need not complete
    the economic impact study.
    To the extent possible consistent with
    subsection (b), the Board shall
    conduct
    a hearing on the economic
    impact of the proposed required
    rule.
    95—238

    —3—
    (e)
    When the Agency proposes
    a rule which
    it believes to
    be
    a
    required
    rule, the Agency shall
    so certify
    in its proposal,
    identifying the
    federal
    law to which the proposed rule will
    respond.
    The Board
    shall
    reference such certification in the first notice of
    the proposal
    published
    in
    the Illinois Register pursuant
    to the Illinois
    Administrative Procedure Act.
    First
    notice of the proposal
    shall
    be
    submitted for publication
    in the Illinois Register as expeditiously
    as
    is practicable,
    but in no event later than
    6 months
    from the date
    the Board determines whether an economic impact study should
    be
    conducted.
    (Source:
    Amended
    in
    53
    1834,
    P.A.
    85
    1048, effective 1/1/89)
    It
    is well
    settled
    Illinois
    law that:
    As
    a
    general
    rule...statutes
    will
    not
    be
    construed
    retroactively
    unless
    it
    clearly
    appears
    such
    is
    the
    legislative
    intention.
    But
    this
    general
    rule
    is
    not
    ordinarily
    applied
    to
    statutes
    which
    relate
    merely
    to
    remedies
    and
    forms
    of
    procedure
    and which
    do
    not
    affect
    substantive right.
    Hogan
    v.
    Bleeker,
    29
    Ill.2d
    181,
    184,
    193 N.E.2d 844
    (1963).
    Moreover, the
    Illinois Supreme Court
    has consistently directed that “in
    all
    cases involving statutes which merely change
    the procedure, such statutes
    should
    be complied with as far as
    is practicable
    in
    all
    pending and
    undetermined causes.”
    McQueen v.
    Conner, 385,
    Ill. 455, 459 53 N.E.2d 435,
    437
    (1943).
    See also Nelson
    v. Miller,
    11
    Ill.2d
    378,
    143 N.E.2d 673 (1957)
    and cases cited
    therein.
    In this case, there
    is ample hearing testimony by representatives of both
    the Agency and
    USEPA that the proposed regulations are required to meet
    requirements
    of the Clean Water Act, and
    that regulations must be
    in
    place
    before
    February,
    1990.
    The
    proposal
    currently
    before
    the
    Board
    does
    not,
    however,
    appear
    to
    meet
    the
    certification
    requirements
    of
    Section
    28.2(e)
    of
    the
    Act.*
    As
    to
    the
    issue
    of
    an EcIS
    in this proceeding,
    by letter filed December
    21,
    1988,
    DENR
    advised
    the
    Board
    of
    its
    conclusion
    that
    an
    EcIS should be
    performed,
    thereby
    preempting
    a
    Board
    decision
    in
    this matter pursuant to
    Section
    28.2(c).
    This leaves
    for
    resolution,
    however, the question
    of when
    the
    six—month
    period for preparation of the ECIS specified in Section 23.2(d)
    begins
    to
    run.
    While such period arguably would begin
    to
    run January 1,
    1989,
    the Board
    believes
    that
    the
    more
    prudent
    course
    is
    to
    construe
    the period as
    commencing upon the Board’s receipt
    of
    a formal
    written certification pursuant
    to Section 28.2(e).
    The Board hereby directs the Agency to prepare and file
    such a certification as expeditiously as
    practicable.
    *
    The Board
    notes,
    however, that
    the Agency was directed,
    in
    response
    to
    a motion made at hearing,
    to
    prepare
    a
    statement
    essentially equivalent
    to
    such
    a certification.
    (R.
    599—603).
    9 5—239

    -4-
    This Order does
    not establish deadlines for the filing of
    a revised
    Agency proposal
    and Agency certification,
    and does not set
    a schedule for
    future hearings,
    as the Board believes that such dates are better set by the
    Hearing Officer
    in consultation, to the extent reasonably practicable, with
    the Agency and other participants.
    The Board notes, however, that the time
    frames for activity
    in this docket are very tight,
    and would
    require Board
    adoption of a second notice Opinion and Order
    in
    December, 1989 if the
    testified—to federal deadline
    is to be met.
    The Board will accordingly
    monitor the progress of this docket quite closely, and
    will
    act
    as necessary
    to avoid any prejudice to the Board’s ability to render a timely decision.
    IT
    IS SO ORDERED.
    I,
    Dorothy M.
    Gunn, Clerk of the
    Illinois Pollution Control
    Board, hereby
    cer ify that the above Interim Order was adopted on the
    ~
    day
    of
    _______________
    1989,
    by a vote of
    7—0
    Illi
    Control Board
    95—240

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