dissenting:
I disagree with the majority’s conclusion that the narrative standard provisions at issue in the present case do not constitute an improper delegation of rulemaking authority by the Pollution Control Board to the Environmental Protection Agency. Accordingly, I dissent.
Under the Illinois Environmental Protection Act, the Pollution Control Board is the administrative entity responsible for determining and promulgating, among other things, statewide water quality standards, which are at issue here. (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1013(a)(1).) Proposed rules are subject to public comment and public hearing. (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1028.) In addition, the Board must consider “the technical feasibility and economic reasonableness of measuring or reducing the particular type of pollution” involved in the substantive regulations it proposes to adopt. (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1027(a).) In contrast, the Environmental Protection Agency is the entity charged with enforcing the substantive regulations adopted by the Board. (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1004.) The Act does not confer on the Agency its own rule-making authority.
The narrative standard provisions involved in this appeal grant to the Agency broad discretion in formulating and establishing the water quality standards that operators throughout Illinois must meet. To be sure, the new system being adopted by the Board can claim a number of administrative conveniences. As the Board’s order succinctly explains:
“The approach adopted here reduces the likelihood of outdated and outmoded standards by deferring formulation of the numeric standard until more of the pertinent information is available. At the same time, today’s amendments allow the Agency to utilize the best currently available information to interpret the fundamental policy of ‘no toxic substance in toxic amounts.’ ” In re Amendments to Title 35, Subtitle C (January 25, 1990), Ill. PCB Order No. R88 — 21, docket A, at 29.
I do not believe, however, that the Board has the statutory authority to adopt the streamlined regulatory model involved here. Rulemaking properly belongs to the Pollution Control Board, not to the Environmental Protection Agency, and the Board is not authorized to delegate that task to the Agency. The criteria to be formulated by the Agency in accordance with the procedures set forth in subpart F are, in my view, best characterized as agency standards of general applicability, and hence they must be deemed rules. (See Ill. Rev. Stat. 1989, ch. 127, par. 1003.09 (defining “rule” as an “agency statement of general applicability that implements, applies, interprets, or prescribes law or policy”); see also Senn Park Nursing Center v. Miller (1984), 104 Ill. 2d 169, 178-80.) In objecting to this aspect of the narrative standard provisions when they were first proposed by the Board, the Joint Committee on Administrative Rules noted, “It would seem logical that at least some of the criteria for toxicity developed by the Agency will have general applicability.” (Joint Committee on Administrative Rules, January 10, 1990, Statement of Objection to Water Quality Standards, at 3; 13 Ill. Reg. 14172 (proposed September 15, 1989).) It would certainly seem to be the case that, once derived by the Agency, a particular criterion will remain the same, at least until new scientific studies cause the Agency to revise the numeric standard it has previously determined. Thus, unless the Agency recalculates the relevant criteria in every enforcement or permit proceeding, the quantities formulated pursuant to the subpart F procedures will simply come to represent de facto water quality standards, effectively controlling Agency action whenever the Agency encounters chemical compounds for which criteria have already been established.
Moreover, the water quality standards will be formulated in the absence of the safeguards that generally inform administrative rulemaking by the Board. As the two dissenting members of the Board observed, the criteria will be established without the benefit of public hearing and public comment, and without any consideration of their economic reasonableness or technical feasibility-circumstances the Board is statutorily required to consider in its rulemaking. Ill. Rev. Stat. 1989, ch. 1111/2, par. 1027(a).
In support of today’s decision, the majority suggests that the Agency-derived criteria should not be regarded as standards of general, or statewide, application, because operators máy challenge them on review of Agency decisions. I am not persuaded, however, that Board review of Agency decisions is an adequate substitute for formal rulemaking by the Board. Again, unless specifically rejected by the Board, a criterion will remain in force, without being subject to the public comment that must accompany its formal rulemaking. Also lacking from the review process is any consideration of the economic reasonableness or technical feasibility of the water quality standard formulated under subpart F, factors the Board must normally consider in the adoption of substantive regulations. (See Ill. Rev. Stat. 1989, ch. 1111/2, par. 1027(a); cf. Ill. Rev. Stat. 1989, ch. 1111/2, par. 1033(c)(iv) (in making order and determination in enforcement proceeding, Board is to consider “the technical practicability and economic reasonableness of reducing or eliminating the emissions, discharges or deposits resulting from such pollution source”).) Thus, although the review process might ameliorate certain aspects of the system adopted here by the Board, review cannot completely cure the defects that have been described.
Finally, I do not believe that the recent amendments to the Act answer the petitioners’ objections to the narrative standard provisions. The Act now defines the term “criterion” (see Ill. Rev. Stat. 1991, ch. 1111/2, par. 1003.80) and, with regard to Board review of Agency permit decisions, places on the Agency the burden of establishing the basis for the criteria it has derived (see Ill. Rev. Stat. 1991, ch. 1111/2, par. 1040(a)(1)). Notwithstanding these new measures, the fundamental objections still remain; this partial statutory adoption of the criterion concept does not validate the Board’s delegation of its rulemaking authority to the Agency.