ILLINOIS POLLUTION CONTROL BOARD
June
25, 1987
IN THE MATTER OF:
)
)
NEW SOURCE PERFORMANCE
)
R87-3
STANDARDS
)
R87-4
RESOLUTION IN RESPONSE TO JCAR OBJECTION
RESOLUTION AND ORDER OF THE BOARD (by J.D. Dumelle):
This matter comes before the Board upon a June 3,
1987,
Joint Committee on Administrative Rules (JCAR) Objection to
rulemaking.
The Pollution Control Board, by this resolution and
order,
respectfully declines to modify the New Source Performance
Standards,
35
Ill. Adm. Code 230.440 and 230.Appendix A in
response to the objection of JCAR.
This response is made in
accordance with Section 7.07 of the Illinois Administrative
Procedure Act (“APA”).
A notice of refusal
to modify will be
timely filed with the Secretary of State for publication
in the
Illinois Register.
The JCAR objection of June 3,
1987,
reads
in pertinent part,
as follows:
The
Joint
Committee
objects
to
Sections
230.440
and
230 Appendix A of
the Pollution
Control
Board’s
peremptory
rulemaking
entitled
“New
Source
Performance
Standards”
(35
Ill.
Adm.
Code 230)
because, contrary to
Section
5.03
of
the
Illinois Administrative
Procedure
Act,
the
Board
did
not
file
the
notice
of
peremptory
rulemaking
within
30
days after a change in rules was required.
The rationale for the objection is summarized
as follows:
1.
Section
5.03
of
the
APA
states
that
peremptory
rulemaking may be adopted by
an
agency
when
rulemaking
is
required
“as
a
result
of
federal
law,
federal
rules and
regulations,
or an order
of a
court”;
2.
Section
5.03
of
the
APA
states
that,
“the
agency
shall
file
the notice
of
peremptory
rulemaking
with
the
Secretary of State
within 30 days after
a change
in rules
is required;”
7g.590
—4—
3.
The New Source Performance Standards,
35
Ill Adm. Code 230.440 and 230.Appendix A
appeared
in
the
Federal
Register
on
February
17,
1987
(Vol.
52,
No.
31,
p.
4773)
and February 19,
1987
(Vol.
52 No.
33,
p.
5105)
respectively;
4.
These
two
peremptory
amendments
were
filed
with
the
Secretary
of
State
on
April 15,
1987,
i.e.
after
30 days after
publication
in the Federal Register;
5.
Therefore,
these
rulemakings
do
not
constitute
a
valid
use
of
peremptory
rulemaking authority.
First,
the Board questions the accuracy of JCAR’s
interpretation of the applicable statutes that a peremptory
amendment must be filed with the Secretary of State within 30 days
after publication of the rule in the Federal Register.
The Board
recognizes the APA’s statement that notice shall
be filed “within
30 days after
a change
in rules is required.” However,
the APA
does not state with clarity when such change
is required.
For
guidance as to when the change
is required,
the Board notes that
Section 9.1(c) of the Illinois Environmental Protection Act sets
forth
the authority and procedures for adopting peremptory
amendments to Sections 111 and 112
of the Clean Air Act.
The
schedule the Board
is to follow in adopting and filing these
peremptory amendments is expressly set forth.
Section 9.1(c)
mandates that, at the “next scheduled Board meeting following
promulgation of the corresponding federal regulations,” the Board
adopt by resolution the peremptory amendment and then file the
amendment with the Secretary of State “in accordance with the
IAPA
within 60 days thereafter.”
The Board believes, therefore,
that the change in rules
is required 60 days after the next
scheduled Board meeting following promulgation of the rule in the
Federal Register.
The Board understands the basis for JCAR’s position, but
points out the seeming inconsistency in the statutory provisions
relating
to the filing of these peremptory amendments.
The Board
believes that Section 9.1(c)
of the Act provides the more
reasonable schedule
in which to promulgate these amendments.
While
the Board endeavors
to hold bi—weekly meetings when
practicable, Section 5(c) of the Act requires the Board to hold at
least one meeting a month.
It is conceivable that the 30 day
period,
as advocated by JCAR,
could fall entirely between Board
Meetings such that it would
be impossible for the Board to adopt
the required rule.
The ability of meeting a 30—day deadline is
further diminished by the fact that the Board does not receive the
Federal Register until days after
its publication date, depending
on the mails.
Section 9.1(c)
recognizes the time constraints
involved
in
this process and authorizes a reasonable time for the
Board to prepare, adopt, and file these amendments.
Furthermore,
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—3—
the Board believes that the specifically prescribed schedule of
Section 9.1(c)
controls over the generally applicable Section
5.03.
It
is
a fundamental principle of statutory construction
that where two rules may both apply,
the more specific rule
prevails.
Section 5.03 of the APA is a rule of general
applicability
——
it applies to all administrative agencies of the
State.
Section 9.1(c) of the Act, however, applies only to the
Board in a specifically prescribed manner.
Therefore, Section
9.1(c) controls.
Second,
the Board declines to modify these amendments because
the only remedy would be to follow regular rulemaking procedures
which,
for this type of proceeding, would be unreasonably costly
to the public, unnecessarily time consuming for the Board and
apparently against the expressed intent of
the General Assembly.
Section 9.1(a) of the Act states:
The General Assembly
finds
that
the
federal
Clean
Air
Act,
as
amended,
and
regulations
adopted
pursuant
thereto
establish
complex
and
detailed
provisions
for
State—federal
cooperation
in
the
field
of
air
pollution
control,
provide
for
a
Prevention
of
Significant Deterioration program to regulate
the
issuance
of
preconstruction
permits
to
insure
that economic growth will
occur
in
a
manner
consistent
with
the
preservation
of
existing
clean
air
resources,
and
also
provide
for
plan
requirements
for
nonattainment
areas
to
regulate
the
construction,
modification
and
operation
of
sources
of
air
pollution
to
insure
that
economic
growth
will
occur
in
a
manner
consistent
with
the
goal
of
achieving
the
national
ambient
air
quality
standards,
and
that the General Assembly cannot conveniently
or
advantageously set
forth
in
this Act
all
the
requirements
of
such federal Act or
all
regulations
which
may
be
established
thereunder.
Is
is
the
purpose
of
this Section
to
avoid
the
existence of duplicative, overlapping or
conflicting
State
and
federal
regulatory
systems.
To avoid duplicative, overlapping or conflicting State and
federal regulatory systems,
the General Assembly authorized the
adoption of regulations “in substance identical” to the federal
regulations.
The General Assembly’s intent seems
clear:
it
wanted a regulatory system for New Source Performance Standards
(NSPS)
and National Emission Standards
for Hazardous Air
Pollutants (NESHAPS) consistent with the federal system,
but it
did not want the Board
to incur
the expense,
in time and money,
78-592
—4—
associated with general rulemaking proceedings.
The General
Assembly realized that it would be inefficient to go through the
motions of regular rulemaking,
with First Notice comment period
and Second Notice JCAR review,
where the final outcome was
statutorily preordained.
In short,
the General Assembly
authorized the peremptory amendment process for NSPS and NESHAPS
amendments,
in the first instance, to avoid regular rulemaking
proceedings.
These same considerations apply where strict adherence to
the formalities
of adopting peremptory amendments has not been
achieved.
The Board has demonstrated time and again
a good faith
approach to adopting and filing these amendments.
On occasion,
strict compliance with the schedule is not attainable.
In these
instances, however, the Board believes that
it acts within the
spirit of the law.
Surely the General Assembly did not intend to
require regular rulemaking formalities as
a remedy where its
original objective was to avoid those formalities altogether.
So
long as rules identical in substance to the federal regulations
are adopted
in an efficient manner, the intent of the General
Assembly is accomplished.
It therefore appears contrary to the General Assembly’s
intent
to recommend the adoption of these NSPS amendments via
regular
rulemaking proceedings.
It would accomplish nothing more
than has already been accomplished.
The goal is to incorporate
the federal NSPS and NESHAPS rules
into Board rules as
efficiently as possible, and that has been done.
The Board
is
certainly dedicated
to an effective, efficient system of
regulation, and to that end will endeavor to adopt and file these
peremptory amendments as swiftly as possible.
But the Board
concludes that it would
be inappropriate to adopt these
statutorily required amendments via regular rulemaking,
as JCAR
recommends.
The Board therefore,
respectfully declines to modify
the amendments
in response to JCAR’s Objection.
IT IS SO ORDERED.
Board Member J. Theodore Meyer dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Resolution and Order was
adopted on the
_______________
day of
_____________,
1987 by a vote
of
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/
lution Control Board
78-593