ILLINOIS POLLUTION CONTROL BOARD
    March 27, 1990
    IN THE MATTER OF:
    )
    )
    RACT DEFICIENCIES
    -
    )
    R89—16
    AMENDMENTS TO 35 ILL. ADM.
    )
    (Rulemaking)
    CODE PARTS 211
    AND
    215
    )
    ORDER OF THE BOARD
    (by J.D. Dumelle):
    This matter comes before the Board upon its own motion.
    On
    March 16,
    1990,
    the Board adopted a Proposed Opinion and Order in
    this docket. That Opinion and Order adopted some portions of the
    Agency’s proposed amendments for Second Notice submission to the
    Joint
    Committee
    on
    Administrative
    Rules
    (JCAR),
    and
    deferred
    additional consideration on other portions to a previously opened
    subdocket
    (B).
    In that Opinion, the Board noted the relationship
    between
    this
    rulemaking proceeding
    and the Wisconsin
    v.
    Reilly
    settlement agreement.
    Further, the Board noted its willingness to
    proceed in accordance with the timeframes set forth
    in Exhibit C
    of the settlement agreement, although the Board was not a party to
    that
    proceeding
    and
    was
    not
    directly
    consulted
    on
    “milestone
    dates.”
    To date, the Board has satisfied each and every milestone
    date set forth in the settlement agreement.
    Subsequent
    to the adoption
    of the Second Notice
    Order,
    the
    Board discovered that the United States Environmental Protection
    Agency (“USEPA”)
    filed a motion in the United States District Court
    for
    the
    Eastern
    District
    of
    Wisconsin
    on
    March
    13,
    1990,
    for
    extension
    of time to promulgate the regulations that were
    to be
    adopted
    by
    March
    18,
    1990.
    USEPA
    states
    in the memorandum
    in
    support of its motion that the RACT rulemaking is very complex, and
    raises
    a
    number
    of
    technical
    and
    legal
    issues.
    Further,
    the
    Affidavit of Joseph Paisie contains the following statement:
    Under
    the terms
    of
    the
    settlement
    agreement
    signed by the parties and entered by the Court
    in this case,
    USEPA
    was required to propose
    as
    federal
    measures
    certain
    RACT
    rules
    for
    Illinois by December 31,
    1989.
    EPA is further
    obligated to
    promulgate
    final rules by March
    18,
    1990
    if
    Illinois
    fails to meet any
    of
    a
    number
    of
    specified
    milestones
    for
    promulgation
    of
    the
    RACT
    rules
    as
    state
    measures.
    See Settlement Agreement, paragraph
    25(a).
    Illinois has missed a number of those
    milestones for certain rules.
    (Affidavit,
    p.
    2).
    (Emphasis added.)
    Based upon these and other statements, USEPA requested an extension
    of time until June
    8,
    1990 to adopt the rules which were to have
    been adopted by March
    18,
    1990.

    In light of the short timeframes the Board was given in this
    proceeding,
    the Board questions what effect,
    if any,
    this motion
    has
    or may have upon
    the milestone dates
    of
    Exhibit C
    of
    the
    settlement agreement which
    relate
    to
    Board
    actions.
    In
    other
    words,
    if
    USEPA’s
    motion
    is
    granted,
    will
    the
    Board
    also
    be
    allotted additional time to allow for the submission of evidence
    to
    support
    the proposed amendments?
    The
    Board
    today
    requests
    comment from persons on the notice list, specifically the Illinois
    Environmental Protection Agency and USEPA,
    on this question.
    The Board will withhold the filing of Second Notice with the
    Joint Committee on Administrative Rules until these responses are
    submitted.
    The Board notes that once Second Notice
    is filed the
    substance of the rule cannot be altered except
    in response to
    a
    JCAR question or suggestion.
    By delaying the filing of
    Second
    Notice,
    the Board preserves the ability to alter the substance of
    the proposal if additional time is afforded and if such alteration
    is determined to be appropriate.
    The Board
    Is also persuaded to withhold Second Notice filing
    in
    light
    of the Board’s
    recent
    experience
    in R88-30,
    Limits
    to
    Gasoline Volatility.
    In that proceeding USEPA stated at hearing
    and
    in
    post-hearing
    comments
    that
    it
    supported
    the
    proposed
    amendments, but then USEPA filed a motion to reconsider the Board’s
    rulemaking,
    requesting certain
    language changes,
    after the Board
    adopted the regulation and formally filed it with the Secretary of
    State.
    Because those regulations specifically applied to the 1990
    ozone season, the Board was able to address the merits of USEPA’s
    motion only by using emergency rulemaking methods.
    The Board notes that under the current milestone dates,
    the
    Board
    has until May
    25,
    1990,
    to
    adopt
    the amendments
    in
    this
    proceeding.
    JCAR possesses
    45
    days
    in which
    to
    review
    Second
    Notice submissions.
    JCAR has not as yet scheduled its May meeting.
    Thus,
    the Board cannot determine by what date
    its Second Notice
    submission must be filed.
    As
    a result,
    the Board can only count
    back 45 days from May 25, 1990 to determine approximately when the
    Second Notice must be
    filed.
    Consistent with this approach, the
    Board believes
    it must file Second Notice no later than April
    10,
    1990,
    which
    is
    a
    Tuesday.
    As
    a
    result,
    the
    Board will
    accept
    responses to this Order which are received
    by the Board no
    later
    than 4:30 p.m. Friday, April
    6, 1990.
    In
    addition
    to
    the
    question
    posed
    above,
    the
    Board
    also
    requests comment clarifying how
    in
    fact
    “Illinois
    has missed
    a
    number of those milestones for certain rules”.
    The Board is aware
    of
    no
    milestone
    dates
    that
    it
    has
    “missed”
    pursuant
    to
    the
    Wisconsin
    settlement
    agreement.
    Exhibit
    C
    of
    that
    settlement
    agreement sets forth the following schedule:
    EXHIBIT C
    Action
    Deadline
    Illinois EPA proposals filed
    9—30—89
    109—636

    Illinois Pollution Control Board
    decides EcIS question and
    publishes first notice
    12—22—89
    Pollution Control Board holds
    hearing and publishes second
    notice
    3—16—90
    JCAR completes action and PCB
    adopts final rule
    5—25—90
    Thus
    far,
    these milestone dates have been met.
    The Agency filed
    its proposal on September
    29,
    1990.
    On October
    20
    (13
    Ill.
    Req.
    16285) and 27
    (13 Ill.
    Req. 16645),
    1990, the Board published first
    notice.
    On October 27,
    1990,
    the Board decided that an Economic
    Impact Study (EcIS) would not be prepared.
    Hearings were held on
    December
    7,
    8,
    14,
    15,
    1989
    and January
    19,
    1990.
    The
    Board
    adopted and published second notice on March 16,
    1990.
    IT IS SO ORDERED.
    I,
    Dorothy M.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board~hereby certify
    th4t
    the
    above
    Order was
    adopted
    on
    the
    _________
    day
    of
    ________________,
    1990,
    by
    a
    vote~of
    _________
    /
    /.~-_
    4
    /
    ~2.
    ~
    Dorothy N. G~hn, Clerk,
    Illinois PoU’ution Control Board

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