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