ILLINOIS POLLUTION CONTROL
BOARD
August
2,
1984
IN THE
MATTER
OF:
)
R84—5
ILLINOIS CONTINGENCY PLAN
FINAL OPINION,
ADOPTED RULE,
OPINION OF
THE
BOARD (by J.
Anderson):
This Opinion accompanies the Board Order of June
8,
1984,
A.
Authority and Procedure
This rulemaking responds to Section 22.1(a)
of the
Environmental Protection Act
(Ill.
Rev. Stat,
1983,
ch.
111½,
par.
1022.1,
as amended by P.A. 83—0983)
(Act) which states:
“The Board shall adopt within 180 days regulations which are
identical
in substance to federal
regulations or
amendments
thereto promulgated by the Administrator of the U.S.
Environmental Protection Agency to implement
Section
105 of
the Comprehensive Environmental Response, Compensation,
and
Liability Act of 1980
(P.L.
96-510), as amended
CERCLAI,
The provisions and requirements
of Title VII of this Act
shall not apply to rules adopted under this subsection.
Section
5 of the Illinois Administrative Procedure Act
relating to the procedures for rulemaking shall not apply to
rules adopted
under this subsection,”
P~A.83-0983 became
effective
on
flec~mber
12, 19~3,
making
the
statutory
deadline
for the Board~sadoption of these
regulations
June
9,
1984.
To meet this
mandate, the
Board
on its
own motion opened a docket in
this
proceeding and developed
a
proposed rule.
Hearings
were
held
on
the proposal in Springfield
(April
13,
1984)
and
Chicago
(April
25,
1984).
The comment
period closed on May
7,
1984.
On June
8,
1984 the Board adopted
final
regulations
which
were
codified
as
“Part 750: Illinois
Hazardous Substances Pollution Contingency Plan”
of
Subtitle G of
the Boardes
regulations.
The adopted rule was published in the
Illinois
Register
on July 27,
1984,
The regulations became
effective
on
July
16,
1984.
The
Board
notes
with
appreciation
the
assistance
of Patricia
F,
Sh~rkey in
drafting
the
proposal,
conducting
the
hearings,
and
drafting
the Fiiml
Rule
and
Opinion
in
this matter.
59-311~
Scoa and Hf ifact of Plan
The Illinois Plan identifies the
state
agencies
which
are
responsible
for planning and
response
action
whenever
there
has
been
a
release or a
substantial
threat
of
a
release
of
a
hazardous
substance
at
an
Illinois
site
which
is not
the
subject
of
a
federal
response
actien.*
This Plan
assigns
the
Illinois
Envjronmenta:t Protection
Agency
(IEPA)
primary
responsibility
for
state planning and
response,
while
providing
for
coordination
with
other
state
agencies,
local
governments,
the
federal
government
and
çrivate
citizens.
Subpart
I)
of
the
Plan
contains
detailed provisions
for determining the
appropriate
extent of a
response
when
a
release or substantial
threat
of
a
release
of
a
hazardous
substance
is
involved~,
As
explained
below,
the
Illinois
Plan does not address oil
spills,
except
to
the
extent
that
a
“hazardous
substance,”
as
defined
in
the
Environmental
Protection
Act, may be involved,
The
provisions
of
this
Plan
are
“identical
in substance” to the National Oil
and
Hazardous
Substances Pollution Contingency Plan
tNational Plan), although
there
are
differences
required
by
the
State’s
organizational
and
statutory
framework
which
are
discussed
below,
C.
General
Issues
J~Qran
izationaq~~esonsibili~\~
The
National
Plan
divides
responsibility
for
response
action
among
various
federal
agencies,
There
is
no
straight
forward
parallel
to
these
divisions
of
responsibility
in
the state
system.
Even where
Illinois
arguably
has
parallel
agencies,
(e.g.,
the
Department
of
Mines
and
Minerals
and
the
Department
of
Conservation
have some
responsibil:Lties
which
are
parallel
to
those of the U.S~Department of the
interior)
these
agencies
don’t necessarily have
parallel
legal
authority.
For
example,
under
the
Act
only
the
IEPA
can
use
the
Hazardous
Waste
Fund,
while
CERCLA
authorizes
various
federal
agencies
to
draw
on
the
“Superfund” and
pursue
legal
actions
After reviewing
the
statutory
framework
within which these
regulations
ware
adopted
and
will
he
used,
as well
as the
comments
of
the
potentially
affected
agencies,
the
Board
believeE~
that the thrust of the Illinois
legislation
is
to
make
IEPA
the
“lead agency.”
Thus,
the
Final
Rule
does
not adopt the federal
*The Board notes
that
state response
at sites which
are
:Listed on the National Priorities ~ist and which ~re
the
suhjec~:
of
a
federal
response
must
he
in
compliance
with
the
National
Contingency
Plan
and
undertaken pursuant to a
contract or
cooperative
agreement
with
the
federal
governu~ent~
(42
U.S.C.
:104
and 105;
40 CFR 300,24,)
59~32O
organization and responsibility provisions, but rather places
primary responsibility for response action with the IEPA.
It
authorizes the IEPA to seek the cooperation of other state
agencies where necessary,
but it confers no new authority on
other state agencies.
However, the Final Rule does reflect the
existing
emergency response responsibilities of other Illinois
agencies.
For example, Section 750.202(c)
requires that reports
of hazardous substance releases to be made to the Illinois
Emergency Services and Disaster Agency (IESDA) pursuant to that
agency~sestablished procedures for telephone notification.
IESDA,
in
turn,
must notify
IEPA,
(R.
61, April 13,
1984
Hearing.)
2.
What is the a
ro
nate role
for
local
overnments?
~nterinto
contracts
~tstoerform
~us?
The original Board proposal placed units of local government
in the role in which the National Plan places the states.
The
Proposed Rule “encouraged”
local government participation in
clean~’ups, stated that local governments may enter into
“contracts
or cooperative agreements or written delegation
agreements with IEPA pursuant to Section 4(r)
of the
Environmental Protection Act,”
and stated that IEPA may pay
local governments out of the Hazardous Waste Fund for taking
clean-up actions pursuant to these type of agreements.
Several participants in this proceeding argued that the
National Plan did not provide and did not contemplate this type
of role for local governments.
They also argued that the Act’s
so~called
“superfund”
provisions did not contemplate
this
role
for local governments.
This, they argue,
reflects the
recognition that “local governments on the whole do not have the
resources nor expertise concerning responses
to ha~&rdous
substances which the State of Illinois has.”
(R,
14, April
25,
1984 Hearing.)
The Board agrees with these arguments
and, finds that local
goverments cannot be given the same role under this Plan that the
states are given under the National Plan,
Therefore,
as adopted,
most of the references to local governments have been deleted.
In the Final Rule Section 750.203 simply states:
“Local government agencies are encouraged to include
contingency planning for response consistent with this Plan
in all emergency and disaster planning.~’
However, on a related point, the Board notes that any
existing authority to contract or enter into cooperative
agreements with local governments is unaffected by
this
Plan.
IEPA argued that Section 22,2(d)
of the Act
(the Hazardous Waste
Fund Section)
explicitly
authorizes the Director
to
enter into
“such
contracts
and
agreements
as necessary...to carry out the
Agency~sduties under this subsection,”
(P.C.
6.)
The Board
agrees with the IEPA that there is no reason to imply any
limitation on IEPA~sauthority to contract for services with a
unit of local
government.
In the Final Rule, there is no express
or implied exclusion which would prevent the Agency from entering
into contracts or agreements with local units of
government~
3,
aroria~include~lsillrovisions
of the National_Plan in this Plan?
The National Plan is
16 Federal Register pages long.
It is
broken into eight Subparts,
two of which contain substantive
directions
for
determining
the appropriate response to oil
spills
and
hazardous
substance
releases,
respectively,
The
industry and government
witnesses
in this proceeding
agreed that it is neither desirable nor
legally
feasible
to
address oil spills in this rulemaking,
Both IEPA and IESDA
testified
that
the U.S. Coast Guard and U.S,EI’A exercise
jurisdiction over oil
spills
on
all
waters
which
may
impact
the
navigable
waters
of
the
U.S., including all Illinois waterways.
(R.
39~44,April
13,
1984 Hearing.)
Mr. Jim Kelty, Manager of
the IEPA Emergency Response Unit, testified
with
regard
to
the
federal agencies response on oil
spills:
“They are
very
effective.
If they can stretch—~ifthey can
in anyway
define
it
as a navigable waterway, they’ll just respond immediately.”
(R.
41, April
13,
1984 Hearing.)
Thus, the oil spill provisions
appear to be unnecessary in the Illinois Plan,
Furthermore, the Board’s statutory authority to adopt the
oil
spill provisions in this rulemaking is questionable because
the definition of “hazardous substance” in both CERCLA and the
Act explicitly exclude petroleum, including crude oil, except to
the extent that it is designated as a “hazardous substance” on
some other basis,
The federal oil spill language was originally
promulgated by U.S. EPA pursuant to the Clean Water Act
(33
U.S.C.
466 et seq.) and was repromulgated in the “revision” to
the National Contingency Plan undertaken pursuant to Section 105
of
CERCLA.
But
participants
in this
proceeding
argued that
the
National
Plan’s
oil
provisions
must
have
been
both
adopted
and
repromulgated
pursuant
to
U.S.
EPA~sClean
Water
Act
authority,
rather
than
CERCLA
authority,
since
CERCLA
excludas
petroleum.
Similarly,
they
conclude
that
the
Board
has
no
authority
to
promulgate
the
oil
provisions
of
the
Plan
under
Section
22.1(a)
because
that
section
only
authorizes
adoption
of regulations
which are “identical
in substance” to the Federal rules
implementing
Section
105
of
CERCLA,
CR.
83~90,
April
13,
1984
Hearing.)
59~322
The Board agrees that
it
is
neither necessary nor within the
Board’s Section
22,1(a)
authority
to address
oil
spills.
Accord~
ingly, the Final Rule deletes all reference
to oil discharges and
related provisions.
4.
Is full Boa
rulemakin
re nired to
add sites
to the
State Priorities List?
The original Board Proposal followed the National Plan’s
language which simply requires that a Priorities
List be
published for comment.
(See 40 CFR 300.66(e)
(i) and
(4).)
U.S.
EPA
promulgated
the National Priorities List by a rulemaking
which appears as Appendix B to the National Plan,
But,
notably,
federal rulemaking is basically a “notice and comment” procedure.
In contrast, Board rulemaking under the Act
requires
hearings,
an
Economic Impact Study and review by the Joint Committee on
Administrative Rules
in addition to Illinois Register publication
and a 45’-day comment period.
Industry participants in this proceeding argued that under
the “identical
in substance”
limit~’ttionof this rulemaking the
Board
is
constrained to adopt only the federal
list in Appendix
B.
Agreeing that it would be absurd to adopt the out—of~state
sites on
that
list,
they
argued
the
Board
should,
at
this
time,
just
adopt
the
Illinois
sites
on
that
list,
However,
they
also
admit
that
for
policy
reasons,
i.e.
it’s
cheaper
for
the
state
to
participate
in a federal clean”up, the Illinois
plan
should not
apply
to
sites
which are on the federal
list,
The
gist
of
this
argument
is
that
the
Board
should
adopt
Appendix
B,
although
it
would be non~~functionaluntil new state priority sites are added
to it in another rulemaking.
(R. 72~76,April
13,
1984
Hearing.)
IEPA argued that full Board rulemaking is not required and,
in
fact, would
not
be “identical
in substance” to the National
Plan,
They further
argued
that requiring rulemaking in order to
undertake a planned, fund~’financedclean”up would be
inconsistent
with Section 22.2(d)
of the
Act
which states that IEPA “shall”
use the Fund to take “whatever preventive or corrective action is
necessary or appropriate in circumstances certified by the
Governor and the Director,”
(P.C.
6.)
In keeping with the Attorney General’s “Rules
for
Interpretation of Illinois Statutes and Constitutions,” the Board
declines to construe the term “identical in substance”
to
create
an absurd consequence such as the adoption of a
non~~functional
listing of sites,
The Board agrees with IEPA that full
Board~stylerulemaking was not contemplated in the Federal Plan,
nor
would
it be consistent with the certifcation
procedure
established in the other “Superfund” provisions of the
Environmental Protection Act,
As adopted, the Final Rule simply
requires that a notice and comment procedure be followed,
including publication in the Illinois Register,
59~323
5.
Does “identical in substance”_reguire that the Plan
utilize the federal_definition of “Hazardous Substance”?
Industry participants in this proceeding argued that the
federal definition must be used in order to be “identical in
substance.”
(R.
32, April
13,
1984 Hearing,)
IEPA argued that
the Act’s definition should be used since this would encompass
the same universe of substances the Act’s “superfun& provisions
encompasses,
i.e. those substances on which IEPA is authorized to
take
preventive
or corrective action under Section 22.2 and
Section
4 of the Act.
(P.C.
6.)
The Final Rule uses the Environmental Protection Act
definition.
Again, the standard “identical in substance” should
not be interpreted to require the adoption of something absurd or
inconsistent with the State’s statutory program,
In this case,
the definition of “Hazardous Substance” was adopted in the same
Public Act as the Board’s mandate to adopt the Plan,
therefore
the conclusion that the state definition was contemplated is
quite
well
supported.
Also,
from a practical perspective, it
makes
sense to have all state clean-ups subject to the same
procedures.
D,
~~b~in
Differences Between Pro osal and Firtal Version
In order to comply with the comments of the Secretary of
State’s Administrative Code Unit on codification form,
the entire
Part has been renumbered from Part 747 to Part 750.
Proposed
Subpart F has been renumbered as Subpart D.
Proposed Subpart H
has been
renumbered
as Subpart
E.
Proposed Subparts D,
E, and G have been deleted in response
to comment,
In the Proposed Rule Subpart D was simply
“Reserved.”
As noted above,
proposed Subpart H was deleted in
response to comments that the Board is not authorized under
Section 22.1(a) of the Environmental Protection Act to adopt the
oil provisions of the National Contingency Plan.
Subpart G,
relating to trustees for Natural Resources, was deleted in
response to the comment that the Act does not address liability
for damages to or responsibility for managing natural resources.
The fact that this
is not addressed in the Act or this Plan does
not
impair
the authority of the State and appropriate state
agencies to manage, protect, and seek recovery for damages to the
state’s natural resources under other statutes or the common law,
The above Opinion of the Board is hereby
adopted.
IT
IS SO ORDERED.
59~324
I, Dorothy M. Gunn, Clerk of the
Illinois
Pollution Control
Board hereby certify that the above Opinion was
adopted on the
~~day
of
~
1984 by a
vote of
Illinois Pollution Control Board
59~325