ILLINOIS

POLLUTION CONTROL BOARD

June

13,

1985

IN THE MATTER OF:

)

Proposed Amendments to Title

35

)

R84—29

Subtitle D Mine Related water

)

Pollution, Chapter

I, Section

)

406.106.

ORDER OF

1’HE BOARD

(by

R.

Flemal):

This matter

comes before the Board upon a motion

for

emergency rulemaking filed by the Illinois Coal Association

(‘~ICA)on ~4ay28, 1985.

At that time ICA requested the Board

to

adopt

the proposed text of R84—29 as an emergency. rule, pending

the final determinatior~~

R94—29.

ICA alleges that this action

is necessary to avert

a threat to the public interest, within the

meaning of

Ill.

Rev.

Stat,

Ch.

111

1/2,

par.

1027(c).

The

R84—29 proposal was filed by ICA on May

29,

1984, and

subsequently amended on February 5,

1985,

to amend

35

Iii. Adm.

Code

406.106

relating

to

various

limitations

on

mine

discharge

effluents,

including those

for total suspended solids.

The

current limitations on TSS in mine discharges were adopted

in

1980, and were

in conformance with federal

regulations

in effect

at that time.

USEPA adopted new regulations

in this area

in

1982, and proposed rules

on May

4,

1984,

which have not yet been

adopted.

The ICA proposal

is largely based on the 1982

regulations and the unadopted 1984 rules.

Merit hearings were

held on the ICA proposal on November

30,

1984, and December

21,

1984,

and the proposal

is

currently awaiting the preparation of

an

economic

impact study

(EcIS).

Section 27(c)

provides

for emergency rulemaking

under

Section 5.02 of the Illinois Administrative Procedure Act where

the

Board believes that

a situation exists which constitutes

a

Nthreat

to

the

public interest, safety

or

welfare”.

ICA alleges

the

existence of

a

threat to the public

interest because of the

aforementioned differences between applicable

state and federal

regulations which ICA claims causes Illinois mine operators to

choose between risking enforcement actions against them under

406.1.06,

or constructing

large sediment basins

to comply with

406,106,

ICA contends that if such basins are constructed, the

resulting

cost

will

have

to

be

passed

on

to purchasers,

thereby

making

the

price

of

Illinois

coal

uncompetitive

with

that

produced

in

other

states.

The final result,

ICA believes, will

be

a loss of mine worker

jobs in Illinois.

The

Board denies ICA’s request

for

emergency

rulemaking,

for

several

reasons.

First~ even assuming that the

competitive

disadvantage alleged

by

ICA

is

a “threat

to the public interest~

84-445

---

within the meaning of Section 27(c),

adoption of

an emergency

rule would

not provide ICA with

the relief

it desires because

5.02 requires that an emergency rule can be effective for only up

to 150 days.

Moreover~Section 5.02 states that no emergency

rule may be adopted more than once in any 24 month period.

It

is

unlikely

that

the

rulemaking requirements of

the Environmental

Protection Act and the Administrative Procedure Act could be

completed

in 150 days.

So even

if

the Board were

to grant this

motion members of

the ICA would,

at the end of the

150 day

period,

find themselves facing

the same considerations as they do

today.

Second, the poteniial disadvantage claimed by ICA as

a

consequence of the statu~:oryconflict

is simply not

a “threat

to

the public interest0

as envisioned by Section 27(c).

The type of

relief requested by ICA

is justified only in extraordinary

ciicumstances, and ICA failed

to make such

a showing.

The

argument that the situation faced by ICA’s members

is of an

“emergency” nature lack~credibility for several reasons.

To

begin with,

the differences between state and federal regulations

existed for one and

a half years before ICA initiated R84—29 and

two and a half years

before

the Motion for Emergency Rulemaking

was made.

Also,

ICA was aware of the possibility of,

and the

amount of time involved ~.n,an EcIS when it filed R84—29.

The Board reminds ICA that this order

does not foreclose

mine operators from filing

for variances should they find it

necessary to do so.

IT

IS SO ORDERED.

I Dorothy M.

Gunn, Clerk

of the Illinois Pollution Controi

Board, her~y certify that ~e

above Order was adopted on

the

~

day of

-

,

1985 by a vote

of

1—~

.

Dorothy

M,

Gkinn,

Clerk

Illinois Pollution Control Board

84-448