ILLINOIS POLLUTION CONTROL BOARD
October 29, 1992
IN THE MATTER OF
:
)
CLEAN AIR ACT RULEMAKING
)
PROCEDURES PURSUANT TO
)
SECTION 28 .5 OF THE
)
RES 92-2
ENVIRONMENTAL PROTECTION
)
(Resolution)
ACT, AS ADDED BY
)
P.A. 87-1213
)
RESOLUTION OF THE BOARD (by J. Theodore Meyer)
:
On September 26, 1992, the Governor signed and made
effective SB 1295, P .A. 87-1213, which contains a number of
environmental provisions . One of these provisions is the
addition of Section 28.5 to the Environmental Protection Act
(Act) . (Ill.Rev.Stat.1991, ch . 111Z, par. 1001 et sea . .)
Section 28.5 establishes new fast-track rulemaking procedures for
rules proposed by the Illinois Environmental Protection Agency
(Agency) and required by the federal Clean Air Act, as amended by
the Clean Air Act Amendments of 1990 (CAAA) . These fast-track
procedures are very specific, and establish a number of deadlines
for action on a CAAA proposal . However, Section 28 .5 raises a
number of questions of interpretation of those specific
provisions . The purpose of this resolution is to articulate the
Board's position on those issues, and to provide guidance to
future participants in Section 28 .5 rulemakings
.
ISSUES AND PROCEDURES
This resolution addresses several specific provisions of
Section 28.5, and is not intended as an exhaustive review of the
fast-track procedures . Readers should refer to the language of
Section 28.5, contained in P .A. 87-1213, for the complete
provisions of that section
.
Section 28 .5(e)
:
Content of Agency Proposals
This subsection sets forth requirements for the form of the
Agency's fast-track rulemaking proposals .
1
.
Ouestion :_
Will the Board conduct any type of review of an
Agency proposal for compliance with the requirements of Section
28 .5(e) before stamping the proposal as received?
Answer
:
The Board will conduct a review of the Agency proposal
for minimal compliance with the requirements of subsection
(e)
.
Because the statute provides for tight deadlines for Board
action, the Board could be faced with major problems if no review
is done. For example, if the Agency's "camera-ready" copy of the
. 2
rules for first notice publication is incorrect (see Section
28.5(e)(1)), the Board will have a difficult time filing the rule
for first notice within 14 days, especially since there are other
requirements to be met within that same 14 day period . The Board
asks the Agency to include, with each proposal, a computer disk
containing the text of the rules in WordPerfect 5 .1. The
proposal will not be date-stamped, and thus not considered
received, until this review has been completed . However, the
Board emphasizes that no proposal will be delayed because of
minor problems .
2 .
Ouestion :
How will this review of the Agency proposal be
conducted?
Answer :
When a proposal arrives at the Board, it will be
reviewed by at least two Board attorneys, including (when
possible) the Board attorney who will be acting as hearing
officer for that proceeding. These attorneys are authorized to
date-stamp the proposal as received, or to delay that stamp until
any problems are remedied by the Agency . This review will be
completed within two working days after the proposal arrives at
the Board's office . So that the downstate offices are able to
review these proposals, the Agency is asked to send one copy of
the proposal to each of the Board's satellite offices . (Those
offices are presently located in DeKalb, Jerseyville, and
Urbana.) The Agency may then reduce the number .of copies sent to
the Chicago office. The Board reiterates that the Chicago office
is the only location for official filing of proposals .
Section 28 .5(f)
:
Scheduling of Hearings and Public Notice
This subsection requires the Board to, within 14 days of
receipt of the, rule, file a proposed rule for first notice,
schedule all hearings, and cause public notice to be given
.
3 .
Ouestion :
Does Section 28.5 require hearings to be held in
one part of the state (where a proposal is statewide or applies
to more than one area) rather than two areas of the state?
Answer
:
Hearings need be held in only one affected area of the
state. section 28.5(c) specifically requires that all fast-track
rules be adopted under the procedures set forth in Section 28 .5,
and Section 28.5(g) establishes very specific provisions for
hearings. Nowhere does Section 28.5 require that the Board hold
hearings in more than one area of the state. As a practical
matter, because the statute requires . us to not only schedule all
three required hearings within 14 days, but also continue each
hearing from day to day until completed, it would prove very
difficult, and in some cases impossible, to quickly obtain
hearing rooms which are available for an indeterminate period of
time. Of course, for rules which will affect just one
.area, the
hearings will be held in that area .
3
4
.
Ouestion :
How does the Board interpret the requirement that
the Board "file the rule for first notice" and "cause public
notice to be given" within 14 days?
Answer
:
The Board interprets this requirement to mean that the
appropriate documents must be sent within 14 days, not that first
notice and public notice of hearings be published. The Clerk's
office must mail notice to the appropriate papers within 14 days,
and hearing officers must mail the first notice package and
hearing notices in that time period. It is impossible to have
first notice and hearing notices actually published within 14
days. Of course, the Board will continue to ensure that actual
publication occurs by the federally required date (30 days prior
to hearing)
.
5
.
Ouestion :
How will the notice list for an individual
proposal be developed by the Board?
Answer :
The Board will publish a notice in the Environmental
Resister,
informing the public of the new procedures of Section
28.5 (and of this resolution), and soliciting those who may be
interested in CAAA rulemakings to submit their names and
addresses to the Board for a draft CAAA rulemaking notice list
.
This "draft" notice list, along with the names provided by the
Agency from their "outreach" list, will serve as the initial
notice list for the first notice opinion and order and the
hearing notice for each new proposal . The first mailing will
also include a "coupon" requiring those who want to be included
on the notice list for that individual proposal to return the
coupon to the Board within a specified time period . The Board
has used this coupon method successfully in the past . This
procedure will serve two purposes : widespread, early
notification to the public so that we can start developing notice
lists, and subsequent narrowing of the list to those who are
specifically interested in a given proceeding. Please note that
any person who wishes to be a "participant of record", as that
term is used in Section 28 .5, must take affirmative action to be
placed on the service list (as opposed to the notice list) for
that proceeding (see below)
.
6 .
Ouestion :
How will hearing dates be chosen?
Answer :
Hearing dates will be chosen by the assigned Board
member and the hearing officer, without consultation with the
participants. Because of the very tight timeframe for the
scheduling of hearings, established by Section 28 .5, it would be
impossible to check with every interested person and actually
come up with three acceptable dates. The Agency is asked, when
filing a proposal, to provide a list of dates, if any, for which
it is not available. The Board will attempt to work within those
dates where possible. The Board will also coordinate hearing
dates, internally, in an attempt to avoid overlapping hearings on
4
other pending rulemaking proposals .
Section 28.5(x) :
Conduct of Hearings
This subsection sets forth the hearing requirements for
fast-track rulemakings
.
7 .
Question
:
Subsection (g) states that the Board shall require
the pre-filing of testimony 10 days before each hearing, and that
pre-filed testimony must be served upon all "participants of
record" who are on record 15 days prior to hearing . The statute
does not define "participants of record" . Who is a "participant
of record"?
Answer :
The Board interprets "participants of record" as
meaning all persons placed on the service list for an individual
proceeding, as opposed to the notice list for that proceeding
.
(See 35 Ill. Adm. Code 102 .221.) Our notice lists can contain
two or three hundred names, and often a large number of those
persons simply want to be . informed of Board action on a
particular proposal. On the other hand, our service lists
contain the names of those who signify an interest in active
participation in the proceedings . Requiring service of pre-filed
testimony on the entire notice list could be very burdensome,
especially for smaller participants. The Board finds that using
the service list for service of pre-filed testimony will fulfill
both the spirit and the letter of the statute .
The hearing officer order accompanying the hearing notice
will include a statement that pre-filed testimony will be served
only on those "participants of record" on the service list, and
that those who wish to receive the pre-filed testimony (as
opposed to simply receiving Board opinions and orders) should
contact the hearing officer for inclusion on the service list .
This will allow any interested person to receive pre-filed
testimony, while not requiring service of the pre-filed testimony
on those who do not want it. The service list will "close" (for
purposes of receiving pre-filed testimony for a specific hearing)
as of 4:30 p.m. 16 days before that hearing. Those who will be
submitting pre-filed testimony must then contact the Board 15
days before hearing . The service list will then be available
through telecopier and at the Board's Chicago office . The Board
will also add any person who pre-files testimony for a given
hearing to the service list for the next hearing
.
8 .
Question :
The pre-filing requirement allows the Board to
grant a "waiver" for "good cause" . Does this mean a waiver of
the pre-filing requirement itself, or a waiver of the deadline?
What is "good cause"?
Answer :
The Board construes the waiver provision as being
5
applicable to either the pre-filing requirement or the deadline
.
"Good cause" will vary from case to case . However, the standard
to be used in determining "good cause" is whether the "good
cause" arises from uncontrollable circumstances . For example,
"the press of business" will not be considered "good cause" which
necessitates a waiver
.
9
.
Question :
Can those who did not pre-file testimony still
testify at hearing?
Answer :
Anyone who did not pre-file will be allowed to testify,
but only if time remains in that hearing day .
Section 28 .5(g)
states that the Board shall require the pre-filing of testimony,
but does not exclude testimony from those who do not do so
.
Hearings held pursuant to the Act are public hearings, and the
Board finds no authority to exclude testimony from the "public",
if time remains in that hearing day. The hearing officer order
accompanying the notice of hearing will state that the hearing
will not be continued to the next day to accommodate those who
did not pre-file .
10 .
Question :
Subsection (g) (1) provides that the first hearing
shall be confined to testimony by the Agency's witnesses . Can
anyone else state a position at that first hearing? For example,
if an affected entity generally supports the rule, but objects to
a specific section of the proposal, can a representative of that
affected entity state its qualified support at the first hearing?
Answer :
In such a situation, the representative may state its
position for the record, if time permits, but any witnesses to
be presented by that representative must be presented at the
second hearing. In other words, another participant may state a
position at the first hearing, but may not present testimony in
support of that position .
11 .
Question : Subsection (g) also provides that if the Agency
and affected entities are in agreement on the rule, or a portion
of the rule, and if USEPA has not informed the Board of any
unresolved objections, the second and/or third hearings may be
cancelled. The statute also provides that "any person" may
request, within 7 days after the first hearing, that the second
hearing be held. (Subsection
(g)(1)(A) and (B) .)
How do the
Agency and affected entities notify us that they are in
agreement? When does such notification occur? Does the Board
issue any public notification of cancellation?
Answer :
Just like information received in any other rulemaking,
the Agency and the affected entities must either state on the
record at hearing that they are in agreement, or put such
notification in writing, to be filed with the Board and served
upon the other participants. The Board urges the Agency and
affected entities to notify the Board of agreement as early as
6
possible. The Board will not issue any specific public
notification of cancellations . Hearing notices and hearing
officer orders will clearly state that the second and third
hearings are subject to cancellation, so that participants will
be on notice of the possibility of cancellation and can contact
the Board for updated information .
12
.
Question : How does "any person" who wishes to request that
the second hearing be held make that request?
Answer :
Such a request for the second hearing must be made the
same way as a notification of agreement--either on the record at
the first hearing, or in writing, filed with the Board and served
upon those on the service list .
13 .
Question
:
In the absence of a request for hearing, and with
no indication of agreement from the Agency and affected entities,
will the second and/or third hearing automatically be held?
Answer:'
The Board interprets the law to require the Board to
hold the second and third hearings unless the Board is
specifically notified of agreement .
In other words, the "7 day
request" provision simply allows any person, whether regulated by
the proposed rule or not, to compel the second hearing, even if
the affected entities are in agreement. (The statute provides
for both "affected entities" and "interested parties" .)
CONCLUSION
The Board will follow the procedures discussed above when
handling a rulemaking filed pursuant to Section 28 .5 of the Act .
We recognize that we may not have anticipated all circumstances
which may arise in Section 28.5 rulemakings. Therefore, the
Board will revisit the conclusions of this resolution as
appropriate, either on its own motion or on the motion of others
.
The Board notes that motions for reconsideration may be filed
within 14 days of the date of this order . Interested persons may
also suggest, within the same 14 day period, whether any
additional steps should be taken by the Board
.
.IT IS SO RESOLVED .,
R. C. Flemal dissented, and B. Forcade, J. Marlin, and M .
Nardulli concurred
.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify t~} a
"_t.~ the above resolution was adopted, on
the
a`7~
day of
OGZX~-G
eJC/
,
1992, by a vote of
6-1
Dorothy M. G n, Cler
Illinois P
tion Control Board
