ILLINOIS POLLUTION CONTROL BOARD
    June
    30,
    1988
    IN THE MATTER OF:
    AMENDMENTS TO SUBTITLE C:
    )
    R85—29
    WATER POLLUTION.
    FECAL
    )
    COLIFORM AND SEASONAL
    )
    DISINFECTION
    CONCURRING OPINION
    (by J.D.
    Dumelle):
    My reasons
    for concurring lie
    in the vagueness
    of Section
    302.209.
    The essence of any rule
    is that a literate person can
    read it and determine
    if
    it applies
    to that person’s activities.
    Section 302.209(a) defines “protected waters”
    as
    those which
    “have
    the physical characteristics
    to support primary contact.”
    But nowhere
    in the rule are “physical characteristics” defined.
    Is water depth one of these characteristics?
    Children can wade
    and splash
    in very shallow waters.
    Is current speed one of the
    characteristics?
    Most Illinois streams are sluggish except
    during and following rainstorms.
    Section 302.209(b) defines waters exempt from the bacterial
    standard.
    It speaks of “waters unsuited for primary contact uses
    because of physical, hydrologic or geographic configuration
    ...“
    But what are
    those configurations?
    What streams are
    exempt?
    How
    is one
    to know?
    A second part of the Section 302.209(b)
    exemption reads
    “and
    are located
    in areas unlikely to be frequented by the public on
    a
    routine basis
    ...“
    What
    it
    “routine basis?”
    Is
    it daily,
    weekly, monthly or annually?
    One might answer the questions posed above by stating that
    IEPA should spell out these phrases
    in guidelines or
    in
    Practice.
    But,
    to me,
    such guidelines would invade the Board’s
    rulemaking province.
    How is one
    to determine from the rule whether
    a stream
    is
    a
    “protected water”
    or not?
    It
    is impossible and the rule,
    being
    vague, may be
    ill—administered
    and adults and children may become
    seriously
    ill from bacterial co~E~mination
    Chairman
    90—661
    I,
    Dorothy
    M.
    Gunn, Clerk
    of the Illinois Pollution Control
    Board,
    hereby certify that the above Concurring Opinion was
    submitted on the
    ______________
    day of
    ~
    ,
    1988.
    ~
    Dorothy M.gGunn, Clerk
    Illinois ~o11ution Control Board
    90—662

    Back to top