ILLINOIS POLLUTION CONTROL BOARD
July 26, 2007
IN THE MATTER OF:
FAST-TRACK RULES UNDER NITROGEN
OXIDE (NO
x
) SIP CALL PHASE II
AMENDMENTS TO 35 ILL. ADM. CODE
SECTION 201.146 and PARTS 211 and 217
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R07-18
(Rulemaking - Air)
IN THE MATTER OF:
SECTION 27 PROPOSED RULES FOR
NITROGEN OXIDE (NO
x
) EMISSIONS
FROM STATIONARY RECIPROCATING
INTERNAL COMBUSTION ENGINES AND
TURBINES: AMENDMENTS TO 35 ILL.
ADM. CODE PARTS 211 and 217
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R07-19
(Rulemaking - Air)
ORDER OF THE BOARD (by A.S. Moore):
On June 25, 2007, the Illinois Environmental Protection Agency (Agency) filed a motion
for reconsideration (Mot.) of a May 17, 2007 Board order. That order bifurcated a rulemaking
proposal filed by the Agency on April 6, 2007 to control emissions of nitrogen oxides (NO
x
)
from stationary reciprocating internal combustion engines and turbines. After that bifurcation,
the Board continues to consider the portion of the Agency’s proposal applicable to engines
affected by the NO
x
State Implementation Plan (SIP) Call Phase II under Section 28.5 of the
Environmental Protection Act (Act) (415 ILCS 5/28.5 (2006)) in docket R07-18 and considers
the remainder of the proposal in docket R07-19 under Section 27 of the Act (415 ILCS 5/27
(2006)).
On July 9, 2007, the Board received from ANR Pipeline Company, Natural Gas Pipeline
Company, Trunkline Gas Company, and Panhandle Eastern Pipeline Company (collectively, the
Pipeline Consortium) a response to the motion for reconsideration (Pipeline Resp.) Also on July
9, 2007, the Board received from the Illinois Environmental Regulatory Group (IERG) a motion
to strike and a response to the motion for reconsideration (IERG Resp.). On July 11, 2007, the
Agency filed a motion for leave to file a reply by date certain, which committed to file a reply
addressing both responses no later than July 18, 2007. In an order dated July 12, 2007, the Board
granted the Agency leave to reply and directed the Agency to file that reply no later than July 18,
2007.
On July 19, 2007, the Agency filed a motion for leave to file its consolidated reply
instanter
(Mot. Leave) and its consolidated reply (Reply). In its motion, the Agency raises
various technical and practical difficulties that prevented it from meeting its deadline.
See
Mot.
Leave at 2. The Board’s procedural rules provide that, “[u]nless undue delay or material
2
prejudice would result, neither the Board nor the hearing officer will grant any motion before
expiration of the 14-day response period . . . .” 35 Ill. Adm. Code 101.500(d). In R07-18, the
Board must adopt a second notice order no later than August 14, 2007.
See
415 ILCS 5/28.5(o)
(2006). In addition, pre-filed testimony for the first hearing in R07-19 must be filed no later than
Monday, August 27, 2007. Accordingly, allowing the 14-day response period to expire under
these circumstances would result in undue delay, and the Board will proceed to consider the
motion for reconsideration. The motion for leave to file
instanter
is granted, and the Board
addresses the Agency’s consolidated reply below.
The Agency on July 9, 2007 filed a motion for leave to supplement, accompanied by a
supplement to its motion for reconsideration. Specifically, the Agency sought to add as an
exhibit to its motion for the convenience of the participants a document entitled
Report of the
Attorney General’s Task Force on Environmental Legal Resources (1992)
. On the same date,
the Agency also filed a motion for waiver of filing requirement (Mot. Waive). Specifically, the
Agency requested that the Board waive the requirement of filing an original and nine copies of
the supplemental exhibit. Mot. Waive at 1, citing 35 Ill. Adm. Code 101.302(h). The Agency
stated that it filed five copies of that exhibit with the Board and would supply a copy to the
interested parties. Mot. Waive at 1. The Board has received no response to either of the
Agency’s motions.
See
35 Ill. Adm. Code 101.500(d). The Board grants the Agency’s motion
for leave to supplement, accepts the supplemental exhibit into the record, and grants the
Agency’s motion for waiver of procedural requirements.
The Agency’s motion for reconsideration argues that the Board has mistakenly
interpreted Section 28.5 of the Act (415 ILCS 5/28.5 (2006)) by misconstruing its plain language
and by overlooking other aids to statutory construction. Mot. at 2, citing 35 Ill. Adm. Code
101.902. Specifically, the Agency claims that the Board’s interpretation of the Act is “overly
literal” and would thwart the applicability of Section 28.5 by rendering it “nothing more than a
glorified type of pass-through or identical-in-substance rulemaking.” Mot. at 8. The Agency
further claims that its interpretation of Section 28.5 is more consistent with the intent and the
goals of fast-track rulemaking and with the
Report of the Attorney General’s Task Force on
Environmental Legal Resources (1992)
.
See generally id
. at 9-11. In addition, the Agency
argues that the Board’s May 17, 2007 order reads into Section 28.5 a subjective element relating
to the immediacy of sanctions by the United States Environmental Protection Agency (USEPA).
See id
. at 12-13. Finally, the Agency claims that the Board’s May 17, 2007 order violated the
procedural requirements of Section 28.5.
Id
. at 13-15, citing 415 ILCS 5/28.5(f), (m) (2006).
Concluding, the Agency states that,
[a]t this juncture, little harm seems evident from the Board’s decision to separate
the dockets. Thus, the NO
x
SIP Call/Phase II could proceed on its current fast-
track path under the R07-18 docket and the remaining portion of the Illinois
EPA’s original proposal could proceed independently under the [docket] R07-19.
Mot. at 15.
The Pipeline Consortium first argues in its response that the proposal under consideration
in R07-19 cannot be considered under the procedures of Section 28.5 because the Agency has the
discretion not to include that rule in its revised SIP without risking USEPA sanctions. Pipeline
3
Resp. at 6. The Pipeline Consortium further argues that Section 28.5 is “clear and
unambiguous.”
Id
. at 7. The Pipeline Consortium claims that, even if ambiguity warranted
consideration of the legislative history of Section 28.5, that history does not support the
Agency’s position.
See id
. at 7-8. In addition, the Pipeline Consortium claims that, although the
Agency supports a broad scope for the application of Section 28.5, the Agency’s proposal falls
outside even that broad scope because it does not demonstrate that it is necessary to fulfill a plan
or strategy.
Id
. at 9. Finally, with regard to the Agency’s arguments about the procedural
requirements of Section 28.5, the Pipeline Consortium notes that the Act specifically allows the
Board to bifurcate a proposal filed under Section 28.5.
Id
. at 11;
see
415 ICLS 5/28.5(j) (2006).
IERG first argues that the Board should strike the Agency’s motion because it is not
“
supported by oath or affidavit or other appropriate showing as to matters not of record
.” IERG
Resp. at 2 (emphasis in original), citing 35 Ill. Adm. Code 101.904. IERG further argues in
favor of striking the motion by claiming that, “throughout the Motion, there are statements of
alleged fact that are not part of the record, quotations from documents that are not publicly
available and not part of the record and conclusions of law that are not supported by citations or
the record.” IERG Resp. at 3. In the alternative, IERG responds to the Agency’s motion by
arguing that it should be denied. First, IERG incorporates arguments it previously has made
regarding the applicability of Section 28.5 to this proposal and whether the proposal is required
to be adopted.
Id
. at 6. Second, IERG describes the language of Section 28.5 as clear and
unambiguous (
id
. at 7) and disputes the Agency’s reliance on the
Report of the Attorney
General’s Task Force on Environmental Legal Resources (1992)
(
id.
at 7-9) as a basis for its
interpretation of that section. Third, IERG claims that the language of the Board’s order does not
support the Agency’s claim that the Board relied on a subjective element in reaching its decision.
Id
. at 9. Fourth, IERG argues that the Board possesses authority to reconsider its rulings and that
the Board has not improperly revised the proposal.
Id
. at 10-11 (citations omitted). Finally,
IERG reiterates arguments it raised in its objection and reply filed in R07-18.
Id
. at 11-12.
In its reply, the Agency elaborates upon its arguments regarding the applicability of fast-
track rulemaking under Section 28.5 of the Act and USEPA’s authority to impose sanctions.
Reply at 4-9. In addition, the Agency argues that, if the Board finds that Section 28.5 of the Act
is ambiguous, the Board should “at the very least” view the Agency’s interpretation of that
language as reasonable.
Id
. at 11-12. In support of that interpretation, the Agency again stresses
the
Report of the Attorney General’s Task Force on Environmental Legal Resources (1992). Id
.
at 13-16. The Agency also argues that its interpretation of Section 28.5 is more consistent with
the intent of the General Assembly in light of “the purposes sought to be achieved or the evils
sought to be remedied by the legislative enactment.”
Id
. at 17 (citations omitted). Finally,
although the Agency notes that time has passed since it filed its proposal on April 6, 2007, the
Agency claims that “[t]he Board should not hesitate to place the R07-19 [docket] back on a path
toward fast-track rulemaking.”
Id
. at 19.
The Board first addresses IERG’s motion to strike the Agency’s motion for
reconsideration. On July 23, 2007, the Agency filed a response to IERG’s motion to strike
(Agency Resp.). The Agency first argues that the Board’s procedural rules allow reconsideration
on the basis of “factors including new evidence, or a change in the law” but do not by their terms
limit reconsideration to those grounds. Agency Resp. at 3, citing 35 Ill. Adm. Code 101.902.
4
The Agency thus suggests that its arguments regarding statutory construction are not barred by
the Board’s rules.
See
Agency Resp. at 2-3. The Agency also argues that the requirement of
filing an oath or affidavit is part of the procedure in the Board’s rules for requesting relief from
final opinions and orders. Agency Resp. at 3, citing 35 Ill. Adm. Code 101.904(c). The Agency
notes that separate procedures govern motions for reconsideration. Agency Resp. at 3, citing 35
Ill. Adm. Code 101.520. The Agency suggests that IERG’s motion stems from the Agency’s
reliance upon the
Report of the Attorney General’s Task Force on Environmental Legal
Resources (1992)
. Agency Resp. at 4. The Agency claims that legal arguments based on that
report are “not akin to the types of the factual representations that would ordinarily require an
oath or affidavit from a non-lawyer.”
Id
. While the Board notes that the Agency did not include
an oath or affirmation, the Board declines to strike the motion and will proceed to address the
substance of the motion by giving all due weight and consideration to the arguments made in it.
In ruling on a motion for reconsideration, the Board considers factors including new
evidence or a change in the law to conclude whether the Board’s decision was in error. 35 Ill.
Adm. Code 101.902. In Citizens Against Regional Landfill v. County Board of Whiteside, PCB
93-156 (Mar. 11, 1993), the Board observed that “the intended purpose of a motion for
reconsideration is to bring to the court's attention newly discovered evidence which was not
available at the time of hearing, changes in the law or errors in the court’s previous application of
the existing law.” Korogluyan v. Chicago Title & Trust Co., 213 Ill. App. 3d 622, 627, 572
N.E.2d 1154, 1158 (1st Dist. 1992).
The Board finds that the Agency’s motion does not identify new evidence, a change in
the law, or any other factor or argument leading to the conclusion that the Board’s May 17, 2007
order erred in bifurcating the Agency’s April 6, 2007 proposal. The Board notes the Agency’s
statement that “little harm seems evident from the Board’s decision to separate the dockets.”
Mot. at 15. With regard to that assessment of the risk of harm, the Board notes that it has now
concluded all hearings in R07-18 and must adopt a second notice order in that docket on or
before August 14, 2007.
See
415 ILCS 5/28.5(o) (2006). The Board further notes that in R07-19
it has scheduled two hearings, pre-filed testimony for the first of which must be filed in
approximately five weeks. The motion to reconsider is denied.
IT IS SO ORDERED.
I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
the Board adopted the above order on July 26, 2007, by a vote of 4-0.
___________________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
