ILLINOIS POLLUTION CONTROL BOARD
May 22,
1986
IN THE MATTER OF:
PROPOSED AMENDMENTS
)
R85—29
TO SUBTITLE
C:
WATER
POLLUTION,
35 ILL.
ADM.
)
CODE 304.121
)
ORDER OF THE BOARD
(by R.
C. Flemal):
This matter comes
before
the Board
upon certain developments
in another Board docket which,
though
it
is distinct from this
docket, directly influences
the manner
in which
this proceeding
moves forward.
The “other” docket referred to
is the matter
of R77—l2
Docket D, and the following discussion summarizes
the critical
developments
in that proceeding.
In October, 1982 the Board
repealed
the fecal
coliforrn water quality standard for general
use and secondary contact waters
(35 Ill. Adm. Code 302.209
and
302.406,
respectively)
and amended the fecal
coliform effluent
standard
(35 Ill.
Adm.
Code 304.121).
The First District
Appellate Court upheld
the Board’s repeal
of
302.406 but
reversed
the Board’s repeal
of
302.209 and
its amendment of
304.121.
The People of the State
of Illinois
v. The Pollution
Control Board,
et.
al.,
119 Ill.
App.
3d
561,
456 N.E.
2d 909
(1983).
The Illinois Supreme Court upheld the appellate court’s
actions
in The People
of the State
of Illinois
v. The Pollution
Control Board,
et.
al., 103
Ill.
2d. 441,
469 N.E.
2d 1102
(1984).
On November
21,
1985 the Board
in R77—12 Docket D adopted by
peremptory rulemaking
302.209
as
it
existed prior
to the Board’s
action
in October
1982.
Also on that date and
in the same
docket, the Board adopted by peremptory rulemaking
an amendment
to
304.121 that reestablished that section
as
it existed prior
to the Board’s action
in October, 1982,
with one exception.
On April
17, 1986
the Joint Committee on Administrative
Rules (~JCAR”)filed a Statement of Objection to the
aforementioned peremptory rulemaking undertaken by the Board
in
R77—l2 Docket
D.
JCAR objected
to the peremptory rules because
it believes
that the Board violated
5.03 (Peremptory Rulemaking)
of the Illinois Administrative Procedure Act (“APA”)
in that the
Board had discretion
as
to the content of the rules,
the rules
were not required under
conditions precluding the use
of general
rulemaking procedures,
and the Board did not file the rules
within
30 days of the time at which
the change
in the rules was
required.
70-78
—2—
The matter
at hand, R85—29,
is procedurally affected by
JCAR’s objections
to the peremptory rulemaking attempted
in R77—
12 Docket
D.
The Board’s proposed amendments
in R85—29 are, in
fact,
amendements
to regulatory language that the Board believed
it had readopted by peremptory rulemaking
of November
21, 1985.
If that rulemaking
was
in fact invalid, there
are then no rules
“on the books”
for
the amendments proposed
in R85—29
to amend.
The Board
today intends
to remedy this dilemma by acceding
to
the
concerns expressed by JCAR and revising
its proposed
amendments
in R85—29
to include the readoption
in toto of
302.209
and 304.121
as they existed prior
to October 1982.
The
Board’s December
5, 1985 proposed amendments
to those sections
simultaneously remain as proposed amendments.
The only impetus
for undertaking
this action
today
is that
it will potentially
accomplish,
by general rather than peremptory rulemaking,
the
readoption
of the pre—October
1982 language of
302.209 and
304.121 and therefore allow for
the amending
of that language.
The Board does not
at this time anticipate
the revision of
its proposal
to require that additional hearings be held
in R85—
29.
In
fact,
the Board does not envision any manner
in which
R85—29 will
be impacted by this development, other
than in its
procedural
formality.
For
the foregoing reasons,
the Board revises
its December
5,
1985 proposal
in
this docket and proposes the following
amendments:
TITLE
35:
ENVIRONMENTAL PROTECTION
SUBTITLE
C:
WATER POLLUTION
CHAPTER
1:
POLLUTION CONTROL BOARD
PART 302
WATER QUALITY STANDARDS
SUBPART
B:
GENERAL USE WATER QUALITY STANDARDS
Section 302.209
Fecal Coliform
During
the months of May through October,
based
on
a minimum of
five samples
taken over not more than
a
30 day period,
fecal
coliforms (STORET number 31616) shall
not exceed
a geometric mean
of 200 per 100 ml, nor shall more than 10
of the samples during
any 30 day period exceed
400 per 100 ml.
70-79
—3—
PART
304
EFFLUENT STANDARDS
SUBPART
A:
GENERAL EFFLUENT STANDARDS
Section 304.121
Bacteria
During the months
of May through October, no effluent governed by
this Part which discharges to general
use waters shall exceed 400
fecal coliform per
100
ml.
Any facility which ceases
disinfection during November through April
shall
recommence
disinfection
in such
a manner
so as
to minimize any potential
adverse effect
on aquatic life.
IT
IS SO ORDERED.
Board Members Jacob D.
Dumelle
and Bill Forcade dissented.
I,
Dorothy
M.
Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify that the above Order was adopted
on
the
____________________
day of
/~h~-~
,
1986,
by a vote
of
.
‘I
Dorothy M./Gunn, Clerk
Illinois Pollution Control Board
70.80
.
.
.