ILLINOIS POLLUTION CONTROL BOARD
January
25,
1990
IN THE MATTER OF:
AMENDMENTS TO TITLE 35,
)
RES 90-1
SUBTITLE C
(TOXICS CONTROL)
)
R88-21
(A)
RESOLUTION AND ORDER OF THE BOARD
(by R.
C.
Flemal):
In Docket R88—2A,
the Pollution Control Board
(Board)
proposed amendments
to
35 Ill.
Adm. Code Parts
301,
302,
305 and
309.
The proposed amendments
to each of these
four Parts were
considered by the Joint Committee on Administrative Rules
(JCAR)
at
its January 10,
1990 meeting.
SCAR issued an objection to
some,
but not all,
of the rules proposed
in this Docket.
Specifically, JCAR objected
to the rules proposed as
35
Ill.
Adm.
Code 302.Subpart
F,
“Procedures for Determining Water Quality
Criteria”~ these proposed rules are intended
to implement the
narrative water quality standard contained
in Section 302.210.
Section
302.210,
in summary, prohibits
the discharge
into
Illinois waterways
of toxic contaminants
in toxic amounts.
Where
the Board has not listed specific numeric limitations
for
discharge
of
specific chemical constituents
in Section 302.208,
Section 302.210 and 302.Subpart
F provide
the procedures and
directives for Board and Illinois Environmental Protection Agency
(Agency) case—by-case analysis of other toxic contaminants which
may
be present
in
an
individual discharge.
This Resolution and Order constitutes
the Board’s formal
response
to SCAR’s January
10,
1990 Objection to
35
Ill. Adm.
Code
302.Subpart
F.
Section 7.06(c)
of
the Administrative
Procedure Act
(TAPA)
requires that
an Agency respond within
90
days
of an Objection.
Section
7.06(c) of the IAPA states that,
an Agency may
(1) modify
the proposed rule
or amendment
to meet
the Joint Committees Objection,
(2) withdraw the proposed rule
or amendment
in its entirety or
(3)
refuse to modify or withdraw
the proposed rule
or amendment.
For the reasons
set forth below,
the Board hereby refuses
to modify or withdraw the proposed
rules.
The Objection
The SCAR Statement
of Objection is
a four page document
which summarizes
the objection as
follows:
The
Joint
Committee
objects
to
Section
302.Subpart
F of
the Pollution Control Board’s
rule
entitled
“Water
Quality
Standards”
(35
Ill.
Adm.
Code
302)
because
the
Pollution
Control
Board’s
proposed
rule
concerning
the
107—359
—2—
determination
of
water
quality
standards
violates
the
provisions
of
the Environmental
Protection
Act
(Ill.
Rev.
Stat.
1987,
ch.
lll~, par.
1001
et
seq.)
and
the
Illinois
Administrative
Procedure Act
(Ill.
Rev.
Stat.
1987,
ch.
127,
par.
1001
et
seq.)
by requiring
the
Environmental
Protection
Agency
to
establish
water
quality
criteria
which
will
not
be
promulgated
pursuant
to
the
Illinois
Administrative Procedure Act
(IAPA).
(Objection, pp.
1,4)
SCAR noted that the issue
of whether
the Board was
unlawfully
delegating
rulemaking authority
to the Agency was
raised by commentators,
including the Illinois Environmental
Regulatory Group
(IERG), prior
to publication of First Notice
in
the Illinois Register.
SCAR further
noted
that IERG had
suggested language
to the Board
to allow for
a narrative standard
but
to also require Agency rulemaking pursuant to the IAPA
‘setting forth data requirements and
test procedures.
SCAR went
on
to state
that:
The Board’s
response
to commentators mirrored
its response to the Joint Committee when asked
about
this
issue.
The
Board
has
maintained
throughout
this
rulemaking
that
it
is
not
delegating
rulemaking
authority
to
the Agency
as
the Agency
will
be developing criteria not
standards.
The Board
has stated that criteria
will
not
have
genera:
applicability
and,
therefore, are not
rlles
as defined by Section
3.09
of the IAPA.
The
Board
is
requiring
the Agency
to
develop
“criteria”
for
toxicity
in
the
waters
of
Illinois.
It would seem logical
that
at least
some of the criteria
for toxicity developed by
the
Agency
will
have
general
applicability.
If
the
criteria
developed
are
“policy
statements
of
general
applicability”,
the
criteria
will
be
rules
as
defined
by
Section
3.09
of the IAPA.
If
the Agency
is developing
“rules’
then
the
Board
is
delegating
its
rulemaking
authority
and
the
criteria
should
be
adopted
pursuant
to
the
IAPA.
(Objection,
p.3).
SCAR cited
four examples of Agency
rulemakings
to which
it had
objected on the grounds
that the Act requires
the Board,
not the
Agency,
to adopt
such rules.
(Objection,
p.4).
I07—360
—3—
Board Response
The Board first observes that
the issues raised by this
Objection were the subject of considerable discussion by the
Board in its Second Notice Opinion
of December
6,
1989
(pp.
12—
17), which has already been supplied
to the Joint Committee,
and
are also the subject
of considerable discussion by the Board in
its Final Opinion of January 25,
1990
(pp.
27—35) which will be
transmitted along with this Response
to Objection.
In the interests
of brevity,
this Response
is supplemental
to those contained
in the text of
the Board’s Opinions.
1.
Section
28.2
of
the
Environmental
Protection
Act
requires
the
Board
to
adopt
rules
which
“fully
meet
the
applicable
federal
law”,
which
establishes
an
adoption date of February
4,
1990.
Section
28.2 of the Environmental Protection Act establishes
procedures
for the adoption of
a
“required rule”, defined
in part
as one “needed
to meet the requirements of
the federal Clean
Water Act
(CWA)”.
Section
28.2 goes on
to provide that
“whenever
a required rule
is needed, the Board shall adopt
a
rule which
fully meets
the applicable federal
law”.
Pursuant
to Section
28.2,
the Agency has certified that
water
toxic
rules are “required rules”;
the United States
Environmental Protection Agency
(USEPA)
has also presented
testimony and comment
that the adoption of rules
is required on
or before February
4,
1990 pursuant
to Section 303(c)(2)(B)
of
the CWA.
Section 303(c)(2)(B)
of the Water Quality Act
of 1987
provides
in part that
all states
‘shall adopt criteria for all
toxic pollutants listed pursuant
to Section 307(a)(l)
.
..
as
necessary to support such designated uses.
...
Such criteria
shall
be specific numerical criteria for such toxic pollutants.
Where such numerical criteria are not available
...
such states
shall
adopt criteria based on biological monitoring
or assessment
methods consistent
with information published pursuant
to Section
(a)(8).”
(33 U.S.C.
§303(c)(2)(B)).
2.
Where
“specific
numerical
criteria”
are
not
available,
federal
law
requires
the
adoption of specific procedures
for
their
development.
The
rules
contained
in
302.Suhpart
F
establish
such
procedures.
107—36 1
—4—
The term “criteria”,
as used by
EJSEPA,
has not previously
been used
in Illinois environmental regulations.
The term used
for rules of general applicability
is
“standards”.
In
the
context of this rulemaking,
some “specific numeric criteria”
are
“not available”
for timely adoption by the Board as rules of
general applicability;
the Board has proceeded with this
rulemaking
on the basis of the Agency proposal,
and includes
within Section 302.208
the numeric standards which have been
demonstrated by the Agency to the Board as appropriate
for
application on a state-wide basis.
Where specific numeric standards
have not been adopted,
USEPA guidance documents provide
that
a state may satisfy
the CWA
mandate
by adopting narrative water quality criteria
procedures.
The 302.Subpart F rules are intended
to establish
such procedures.
3.
Based
on
Illinois
case
law,
concerning
delegation
of
rulemaking
authority,
the
Board
believes
that
the
302.Subpart
F
rules are permissible “directives”
to the
Agency
consistent
with
the
Environmental
Protection
Act
and
IAPA.
The
Board
further believes that
to allow the Agency
to adopt
IAPA “data
requirements and test
procedures”
is
impermissible,
and
is
the
type
of
Agency
rulemaking
to
which
the
Joint Committee itself has objected.
The commentators
in this proceeding
have each discussed the
three principal Illinois court cases which have examined Board
rules
to determine whether the Board has improperly delegated
rulemaking authority.
While
the commentators disagree over
whether
these Section
302
rules constitute
an
improper
delegation,
they do agree as
to the analysis used by the court.
As the Illinois Steel Group has stated,
“tjhese
cases draw a
distinction between a delegation of authority and a directive.
These cases suggest
that
a directive from the Board
to IEPA
to
perform
a particular
act consistent with the Illinois
Environmental
Protection
Act
is
not unlawful whereas
a
delegation
from the Board
to IEPA of the authority
to set
standards
is unlawful.”
In two cases
the court found
that
the Board had issued
permissible directives.
In Commonwealth Edison Co.
v.
Pollution
Control Board,
62
Ill.
2d
494,
333
N.E.
2d
(1976),
the Illinois
Supreme Court validated
a rule
(now
35
111.
Adm.
Code 243.104)
which provided that
if the existing air quality
in
an area was
better than that set
by
the Board
in
a general
air quality
standard,
that the better existing air quality should
be
maintained unless
a lowering of the standard was proven
to the
Agency
to be “necessary
to
economic and social development and
I07—362
—5—
will not interfere with
or become injurious to human health and
welfare”.
Such proof was designed
to be made
to the Agency in
the course of the permit process, and the numbers derived by the
Agency were to be used as air permit limitations.
In affirming
the rule,
the Supreme Court overruled a
finding by the First
District Appellate Court
that the rule was invalid.
In U.S.
Steel Corp.
v. Pollution Control
Board,
52 Ill. App.
3dl,
367
N.E.
2d 327
(2d Dist.
1977),
the Appellate Court addressed a rule
(now
35
Ill.
Adm.
Code 309.141(f))
which allows the Agency
to
establish numerical effluent limitations
as conditions
in NPDES
permits necessary
to accomplish the purposes of the CWA,
even
prior
to promulgation of effluent standards
by USEPA.
The court
found
this
to be
a proper directive from the Board
to the Agency,
rather than an improper delegation.
The court noted that
it
found
no conflict between
this
rule and Section
39(b)
of the
Environmental Protection Act, which gives
the Agency explicit
statutory authority
to issue permits containing “those terms and
conditions.
.
.which may be required
to accomplish
the purposes and
provisions of the Act.”
On the other
hand,
in reviewing the very same rule as did
the U.S.
Steel court,
the Fifth District Appellate court found
the rule
to be an unlawful delegation of
Board rulemaking
authority
in Peabody Coal
Co.
v.
Pollution Control Board,
36
Ill.
App.
3d5,
344 N.E.
2d 279
(5th Dist.
1976).
In so holding,
the
Court specifically acknowledged
the prior Supreme Court and
appellate court holdings
in
the Commonwealth Edison cases,
and
adopted
the appellate court’s opinion as more “appropriate and
persuasive”
than that of
the Supreme Court.
The rules developed
by the Board
in 302.Subpart
F are
clearly
the type of
rules which were found to be permissible
“directives”
by the Supreme Court
in Commonwealth Edison and the
appellate court
in U.S.
Steel.
In each
of these
rules,
the
Agency has been directed
to calculate
a number
to be
included in
a permit
to be issued
by the Agency pursuant
to Section
39
of
the
Environmental Protection Act,
and subject
to the review of the
Board pursuant
to Section
40 of
the Act.
The difference between
the 302.Subpart
F
rules and the older
rules
considered by
the
courts
is that
the 302 rules are more specific rules~ the older,
pre—IAPA rules do not establish as many directives and
“groundrules”
for exercise of Agency discretion as do these
rules.
The Board notes
that the Joint Comrr~ittee itself has
not
objected
to Board
rules which direct the Agency to calculate
numbers
to be used
in permit conditions,
provided that
the rule
articulates
factors
to be considered
by
the Agency
in making such
calculations.
(See
35
Ill.
Adm,
Code 202.401, directing Agency
determination of the useful life of
a facility for air permits
containing alternative control strategies,
considered
by JCAR
February
23,
1984.)
The Board believes that were
it
to fail
to
107—363
—6—
issue
the “data requirements and test procedures”
to be used in
deriving criteria
as Board
rules,
that the rules would
be
defective pursuant
to the IAPA.
Moreover,
the Board fails to see
where
the Agency has statutory authority
to itself adopt such
rules, which are of
the type to which
the Joint Committee has
previously raised objection.
(See Objection,
p.
4)
4.
If the Board were
to direct the Agency to
adopt
“data
requirements
and
test
procedures”
by
way
of
IAPA
rulemaking,
the practical effect
of such action would
be
to
insulate
Agency
decisions
from
timely review.
As
the Joint Committee has noted
in its objection,
it
is
the
Board’s
position
that
criteria
to
be
derived
by
the
Agency
pursuant
to Part
302 are not
rules of
general applicability,
but
would
instead
be
applied
in
permitting
and
other
site—specific
situations.
The Board
has made clear
in
Section 302.210(f)
that
the
numbers
calculated
by
the
Agency
enjoy
no
“presumption
of
validity”
in
the specific
cases
in
which
they
will
be
applied.
The Agency
bears
the burden
of
demonstrating
that
the criterion
is
validly
derived
and
applied
in
an
action
before
the
Board.
The Board’s
actions
are
then
appealable
in
the appellate
court
pursuant
to
Sections
29
and
40
of
the Environmental
Protection
Act.
In
contrast,
rules
adopted
by
the
Agency
pursuant
to
the
IAPA
are
not
reviewable
by
the
Board
under
the
Environmental
Protection
Act;
such
rules
are
reviewable
by
the circuit
courts
pursuant
to
the
Illinois Administrative
Review
Act.
Review
by
the circuit
court
alone
is
likely
to
be
a
more
lengthy
process
than review by the Board an appellate court, given
the relatively
more crowded calendars of
the state’s circuit courts.
Until such
time as an Agency
rule were
to be overturned
by
a circuit
court,
the
Board
would
arguably
be
required
to
deem
the
Agency
rule
valid
and
apply
it
as
written;
the
Board
cannot
opine
with
certainty
in
this
area,
as
the Environmental Protection Act was
designed
to
prevent
such
situations.
The
Board
further
notes
that
it
would
be equally arguable
as
to whether
the Board could
grant
a
discharger
relief
from
an Agency
rule,
either
by way
of
variance,
adjusted
standard,
or
site—specific
rule;
the
Environmental
Protection
Act
is
clear
that
only
the
Board
may
grant
relief from its own regulations.
The Board’s view,
then, continues
to be that Agency adoption
of
even
“data
requirements
and
test
procedures”
by
IAPA
rulemaking
would
result
in
the
very
situation
the
Joint
Committee’s objection seeks
to avoid:
unlawful delegation by the
Board
to
the Agency
of
the Board’s duties
to
“determine,
define,
107—364
—7—
and
implement
environmental
control
standards”.
The
system
proposed
by
the
Board
allows
for
site—by—site
challenge
of
criteria as
they are developed pursuant
to procedures adopted by
the Board.
At such time as
it appears
that any criterion should
be given
statewide applicability,
the Agency,
the Board,
or any
other
person
can
initiate
a
rulemaking
to
have
a
criterion
elevated to the status of a standard.
Conclusion
The Board does not take a Joint Committee Objection lightly.
Section 7.06 of the IAPA sets forth the universe of possible
Board
responses.
Neither
modification
nor
withdrawal
of
the
rules
appears
to
be
an
appropriate
response
to
the
Objection,
given the mandate of Section 28.2 of the Environmental Protection
Act
that
requirements of the CWA be met by February
4,
1990,
the
Board’s
belief
that
it
has proposed
the only compliance
option
practically
available
to
it,
and
its
belief that
the compliance
option
does
not
constitute
improper
delegation
of
the
Board’s
rulemaking
authority.
Under
these
circumstances,
the
Board
believes
its
only
recourse
is
to
refuse
to
modify
or
withdraw
these proposed rules.
Notwithstanding
its Response
to Objection,
the Board wishes
to
thank
the
Joint
Committee and
its
staff
for
their
favorable
consideration of the requests made by the Board and its staff for
expedited review of various phases of this proceeding.
The Board
appreciates
the
sensitivity
to
its
desire
to
make
a
timely
decision in this matter.
IT
IS
SO ORDERED
Board Member
3.
T. Meyer concurs.
Board Members
J.
D.
Dumelle and M. Nardulli dissent.
I,
Dorothy
M.
Gunn, Clerk
of the Illinois Pollution Control
Board,
hereby
certify
that
the
a,
ye
Resolution
and
Order
was
adopted on the
~-~‘5~°
day of
~
,
1990,
by
a
vote of
~5-~
.
/L
/
L
I
Dorothy M. Gu~n,Clerk
Illinois Pollution Control Board
107—365
.
.