BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

NOTICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

IN THE MATTER OF:

)

FAST-TRACK RULES UNDER NITROGEN

)

R07-18

OXIDE (NOX) SIP CALL PHASE II

)

(Rulemaking – Air)

AMENDMENTS TO 35 ILL. ADM. CODE

)

SECTION 201.146 AND PARTS 211 AND 217

)

__________________________________________)

)

IN THE MATTER OF:

)

SECTION 27 PROPOSED RULES FOR

)

R07-19

NITROGEN OXIDE (NOX) EMISSIONS

)

(Rulemaking – Air)

FROM STATIONARY RECIPROCATING

)

INTERNAL COMBUSTION ENGINES AND

)

TURBINES: AMENDMENTS TO 35 ILL.

)

ADM. CODE PARTS 211 AND 217

)

NOTICE

To:

John Therriault, Acting Clerk

Timothy Fox, Hearing Officer

Illinois Pollution Control Board

100 West Randolph Street

James R. Thompson Center

Suite 11-500

100 West Randolph Street

Chicago, Illinois 60601

See also, Attached Service List

PLEASE TAKE NOTICE that I have today electronically filed with the Office of

the Clerk of the Illinois Pollution Control Board the

APPEARANCE and MOTION

FOR RECONSIDERATION

of the Respondent, Illinois Environmental Protection

Agency, a copy of which is herewith served upon you.

Respectfully submitted by,

_____/s/______________________

Robb H. Layman

Assistant Counsel

Dated: June 25, 2007

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 524-9137

Electronic Filing, Received, Clerk's Office, June 25, 2007

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

IN THE MATTER OF:

)

FAST-TRACK RULES UNDER NITROGEN

)

R07-18

OXIDE (NOX) SIP CALL PHASE II

)

(Rulemaking – Air)

AMENDMENTS TO 35 ILL. ADM. CODE

)

SECTION 201.146 AND PARTS 211 AND 217

)

__________________________________________)

)

IN THE MATTER OF:

)

SECTION 27 PROPOSED RULES FOR

)

R07-19

NITROGEN OXIDE (NOX) EMISSIONS

)

(Rulemaking – Air)

FROM STATIONARY RECIPROCATING

)

INTERNAL COMBUSTION ENGINES AND

)

TURBINES: AMENDMENTS TO 35 ILL.

)

ADM. CODE PARTS 211 AND 217

)

APPEARANCE

NOW COMES Robb H. Layman and enters his appearance on behalf of the

Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, as one of its

attorneys in the above-captioned matters.

Respectfully submitted by,

_____/s/________________________

Robb H. Layman

Assistant Counsel

Dated: June 25, 2007

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 524-9137

Electronic Filing, Received, Clerk's Office, June 25, 2007

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

IN THE MATTER OF:

)

FAST-TRACK RULES UNDER NITROGEN

)

R07-18

OXIDE (NOX) SIP CALL PHASE II

)

(Rulemaking – Air)

AMENDMENTS TO 35 ILL. ADM. CODE

)

SECTION 201.146 AND PARTS 211 AND 217

)

__________________________________________)

)

IN THE MATTER OF:

)

SECTION 27 PROPOSED RULES FOR

)

R07-19

NITROGEN OXIDE (NOX) EMISSIONS

)

(Rulemaking – Air)

FROM STATIONARY RECIPROCATING

)

INTERNAL COMBUSTION ENGINES AND

)

TURBINES: AMENDMENTS TO 35 ILL.

)

ADM. CODE PARTS 211 AND 217

)

MOTION FOR RECONSIDERATION

NOW COMES the Respondent, ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY (“Illinois EPA”), by and through its attorneys, and pursuant to 35 Ill. Adm.

Code 101.520, and moves the Illinois Pollution Control Board (“Board”) for

reconsideration of its May 17, 2007, Order bifurcating the Illinois EPA’s fast-track

rulemaking proposal for the control of nitrogen oxides (hereinafter “NOx”) from

stationary reciprocating internal combustion engines and turbines originally filed on April

6, 2007. This motion, captioned in the form of the Board’s bifurcated dockets, is filed in

accordance with 35 Ill. Adm. Code 101.520. For the reasons set forth below, the Illinois

EPA requests that the Board rescind its ruling halting the proposed fast-track rulemaking

for sources not affected by the NOx State Implementation Plan (“SIP) Call/Phase II

relative to the aforementioned engines and turbines. Further, as explained below, the

Board should order the resumption of a fast-track rulemaking proceeding for all sources

and/or emission units affected by the R07-19 docket.

Electronic Filing, Received, Clerk's Office, June 25, 2007

INTRODUCTION

On May 17, 2007, the Board entered an order bifurcating the fast-track

rulemaking proposal under Section 28.5 of the Illinois Environmental Protection Act

(“Act”), 415 ILCS 5/28.5 (2006) relating to stationary reciprocating internal combustion

engines and turbines that had been submitted by the Illinois EPA on April 6, 2007. The

original proposal had been accepted by the Board on April 19, 2007, as a fast-track

rulemaking under the R07-18 docket. The Illinois EPA received a copy of the Board’s

May 17

Order on May 21, 2007.

The May 17

Order principally arose from separate objections received by the

Board concerning the fast-track proposal from a consortium of natural gas suppliers

(hereinafter “Pipeline Consortium”) and the Illinois Environmental Regulatory Group

(hereinafter “IERG”).

As a result of the Board’s ruling, the rulemaking was split off

into two rulemaking proceedings. The original R07-18 docket is now designated for the

Board’s continuing consideration of those sources affected by the NOx SIP Call/Phase II.

A new R07-19 docket was opened by the Board for its consideration of the remaining

portion of the Illinois EPA’s original fast-track rulemaking proposal.

In this motion, the Illinois EPA respectfully seeks a reconsideration of the

Board’s May 17

Order pursuant to 35 Ill. Adm. Code 101.520(a). The procedural rule

governing the Board’s reconsideration of its orders generally provides that the Board will

consider such factors that demonstrate whether its decision was in error.

See,

35 Ill.

Adm. Code 101.902. In this instance, the Illinois EPA contends that the Board is gravely

mistaken in its interpretation of the Section 28.5 provisions for fast-track rulemakings, in

part, because the Board may have misconstrued the statute’s plain language and

overlooked other valuable aids of statutory construction. Moreover, the Illinois EPA is

For the sake of convenience, the parties are referred to collectively as “industry objectors.”

Electronic Filing, Received, Clerk's Office, June 25, 2007

concerned that in reconsidering its earlier order accepting the fast-track rulemaking

proposal, the Board has inadvertently acted outside of its lawful authority with respect to

other procedural requirements of Section 28.5.

Because of the importance of these considerations relative to this rulemaking, as

well as the impact that the Board’s ruling may have on future fast-track rulemaking

proceedings, the Illinois EPA requests that the Board consider the merits of this Motion

and re-examine its May 17

Order. In the event that the Board finds reason(s) to

reconsider its decision based on the arguments raised herein, the Illinois EPA requests

that the Board take the necessary steps to order the resumption of a fast-track rulemaking

procedure in the current R07-19 docket.

ARGUMENT

In its May 17th Order, the Board rested its decision to bifurcate the current

proceedings on two alternative grounds. First, the Board held that the Illinois EPA failed

to link its fast-track rulemaking proposal relating to those sources unaffected by the NOx

SIP Call/Phase II to a federal rule or regulation that is required to be adopted.

See, May

Order

at page 34. Alternatively, the Board found that even if USEPA was

authorized under federal law to sanction the State of Illinois for the failure to make a SIP

submittal, no threat of such sanctions could be demonstrated with respect to the

proposal’s 8-hour ozone and PM

2.5 NAAQS component.

The Board has misconstrued the meaning of “required to be adopted” in

Section 28.5, thereby denying the proper applicability of the fast-track

rulemaking procedures to the Illinois EPA’s original proposal.

In its May 17, 2007, Order, the Board observed that Illinois EPA’s portrayal of

federal requirements relating to the implementation of the 8-hour ozone and PM2.5

NAAQS was not “persuasive,” as it did not articulate a basis for concluding that the non-

Phase II component of the proposal met the threshold requirements under Section 28.5 of

Electronic Filing, Received, Clerk's Office, June 25, 2007

the Act. To be precise, the Board found that the Illinois EPA had not “traced the

language of this portion of its proposal

to a specific rule

that is required to be adopted by

the State under the CAA.”

See, May 17

Order

at page 34 (emphasis added). Thus, the

Board reads the Act’s fast-track provisions as requiring the existence of a “specific rule”

that must be adopted under the Clean Air Act Amendments (“CAAA”).

The Board’s ruling on this aspect of the proceeding is unencumbered by words or

explanation but it is seemingly borrowed from arguments raised by the industry

objectors. The Pipeline Consortium posited that nothing in federal law dictates that

Illinois or any other state “specifically” regulate engines and turbines of the nature and

size identified in the Illinois EPA’s proposal.

IERG similarly claimed that the 8-hour

ozone and PM2.5 NAAQS requirements sought to be addressed by the Illinois EPA in the

rulemaking do not compel “specific action” and, accordingly, this component of the

rulemaking was not required to be adopted for purposes of Section 28.5.

In the Illinois

EPA’s view, the central premise of these arguments is specious. Whether enticed by its

simplicity or the repetition with which it was stated, the Board fell victim to an artificial

construct that which has no support in the statutory language and eschews the legislative

purpose of the fast-track provisions.

Plain meaning of the relevant statutory language

Courts routinely observe that the cardinal rule of statutory construction is to

ascertain and give true meaning to the intent of the legislature. This endeavor begins

with a review of the statute’s language. Where the plain language of a statute is clear and

unambiguous, a reviewing court or administrative tribunal must enforce the statute.

See,

Objection Motion of April 16, 2007, and the Reply of May 8, 2007, filed by Pipeline Consortium,

at pages 5 and 2 respectively.

See,

Objection Motion filed April 17, 2007, by IERG at pages 8-9.

Electronic Filing, Received, Clerk's Office, June 25, 2007

Solich v. George and Anna Portes Cancer Prevention center of Chicago, Inc.,

15 Ill.2d

76, 630 N.E.2d 820 (1994);

Color Communications, Inc. v. Pollution Control Board

, 288

Ill. App.3d 527, 680 N.E.2d 516 (Ill. App. 4

Dist. 1997).

Section 28.5(a) of the Act provides that the fast-track rulemaking procedures

apply exclusively to “rules… required to be adopted” by the State of Illinois under the

CAAA.

See,

415 ILCS 5/28.5(a)(2006). Section 28.5(c) defines a “fast-track”

rulemaking as “a proceeding to promulgate rules that the CAAA requires to be adopted.”

415 ILCS 5/28.5(c)(2006). This subsection also gives meaning to the term “requires to

be adopted,” defining it as “those regulations or parts of regulations for which the

[USEPA] is empowered to impose sanctions against the State for failure to adopt such

rules.”

Id.

The meaning given to the latter phrase is thus specifically defined by

reference to USEPA’s sanctions authority under the CAAA. Significantly, the principle

source of this authority under the federal statute is critical to a comprehensive

understanding of the proper scope and role of Illinois’ fast-track rulemaking process.

EPA authority to impose sanctions under the federal Clean Air Act (“CAA”) is

fairly circumscribed. However, perhaps the broadest and most frequently discussed part

of this authority is found in Section 179. Entitled as “Sanctions and Consequences of

Failure to Attain,” Section 179 was substantially revised by Congress in 1990 to add teeth

to the non-attainment area program. The provision authorizes USEPA to withhold

federal highway funds and/or impose emission offsets at a ratio of 2 to 1.

See,

42 U.S.C.

§7509

One or both of these available sanctions are to be applied by USEPA whenever a

State fails to put forward a necessary SIP, SIP revision or such other submissions as are

required under Part D or otherwise incorporated into Section 110.

Two common scenarios that illustrate the applicability of USEPA’s sanction

authority, relevant here, are a State’s failure to submit a plan or plan revision relating to a

Electronic Filing, Received, Clerk's Office, June 25, 2007

finding of “substantial inadequacy” under Section 110(k)(5) of Part A in Title 1 and a

State’s failure to submit a plan or plan revision required under Part D in Title I,

governing “Plan Requirements for Non-attainment Areas.” The proposed rule for the

affected sources under the NOx SIP Call/Phase II properly fit within the first

aforementioned scenario, albeit not because of the specificity with which the NOx SIP

Call addressed certain emission sources, controls or other normal attributes of a

rulemaking.

Rather, the origin of the NOx SIP Call, arising as it did from the OTAG

process and the resulting findings of inadequacy by USEPA, placed the affected States

into a position of having to assure that their SIPs addressed the interstate ozone problem

or face sanctions under Sections for affected States under Section 179(a)(1).

Separately, the Illinois EPA has stated that its original rule proposal was also

meant to satisfy attainment demonstrations, as well as the accompanying obligations of

Reasonably Available Control Technology (“RACT”) and Reasonable Further Progress

(“RFP”), for the 8-hour ozone and PM2.5 NAAQS.

The Illinois EPA has argued that the

proposed rule would fall within the second aforementioned scenario, as the rule would be

addressing the State of Illinois’ obligation to submit plan revisions (i.e., for attainment

demonstrations and the required elements of RACT and RFP) relative to both the ozone

and PM

2.5 NAAQS under Part D. The threat of sanctions obviously comes into play upon

the State’s failure to submit such plan revisions, which can be directly traced to the

language of Section 179(a)(1).

Industry objectors would appear to object, as a matter of principle, to the notion that the NOx SIP Call

would serve as a basis for sanctions under Section 179. However, as a result of a transparent negotiations

strategy memorialized in their objections, they have agreed to waive such objections if and when the

proposal for non-NOx SIP Call/Phase II sources is removed from its proposed fast-track path.

The two moderate attainment areas in Illinois for the 8-hour ozone standard were subject to an

attainment demonstration that was required by June 15, 2007, which has now passed. The two moderate

attainment areas in Illinois for PM

2.5 are subject to a future attainment demonstration date that is required

by April 5, 2008.

Electronic Filing, Received, Clerk's Office, June 25, 2007

Notably, the enabling language of USEPA’s sanctions authority in the CAA is not

geared towards the promulgation of a specific rule or type of regulation but, rather, is

broadly aimed at various types of SIP submittals. A SIP delineates the strategies by

which a State will achieve compliance with the NAAQS.

Among other things, a SIP

must contain “enforceable emission limitations and other control measures, means, or

techniques… as well as schedules and timetables for compliance, as may be necessary or

appropriate to [comply with the CAA].” 42 U.S.C. 7410. Generally speaking, these

limits and other requirements assume the form of regulations, which implement and serve

as a basis for enforcement of the SIP. It is unimaginable that any SIP submittal would be

approved in the absence of rules for implementing and enforcing the SIP. The rules or

regulations that are promulgated by a State to implement the NAAQS are therefore part

and parcel, if not the real embodiment, of a SIP submittal.

For purposes of Section 179, it is clear that USEPA’s authority to impose

sanctions is focused on the overall adequacy of a SIP or SIP revision, including any

required elements set forth in Part D or Section 110 of the CAA. In this regard, the rules

necessary to implement the SIP are synonymous with the SIP itself. This impression is

not only supported by the broad, narrative language of Section 179, but is confirmed by

USEPA’s approach of requiring that a SIP submittal contain all measures necessary for

approval, including the adoption of implementing rules. As the Illinois EPA noted in a

response to one of the filed objections, USEPA has pointedly directed States to submit

SIP revisions for the 8-hour ozone and PM

2.5 NAAQS to show that all control measures

The CAA affords a State ample discretion in selecting the requisite mix of controls necessary to achieve

the NAAQS, although such discretion is obviously contingent upon the choice of controls achieving the

NAAQS.

Electronic Filing, Received, Clerk's Office, June 25, 2007

are adopted in order to demonstrate attainment a manner as expeditiously as practicable.

Because the Illinois EPA’s proposed rule will address required SIP revisions

under Part D for both ozone and PM2.5 NAAQS, thus making it a SIP-related requirement

for which USEPA sanctions are clearly contemplated, the Illinois EPA maintains that the

requirements of Section 28.5 have been satisfied and that the proposal is eligible for fast-

track rulemaking.

The Board’s ruling draws attention to the absence of a “specific rule” in the

Illinois EPA’s proposal that is actually required to be adopted by a State under the

CAAA. This approach would suggest that the Board is attempting to define a “required”

rule as a specific regulatory enactment, seemingly one already promulgated or put into

place by USEPA, which States, in turn, are obliged to adopt as their own. This

construction, however, is overly literal and restrains the more natural reading of the

statute’s text. The Illinois EPA’s proposed rule

a rule that, in the absence of its

adoption, will result in a failure to meet the SIP-related requirements for ozone and PM2.5

NAAQS. Moreover, such a crimp on the applicability of Section 28.5 would effectively

fast-track rulemaking to nothing more than a glorified type of pass-through or identical-

in-substance rulemaking. As discussed below, such an outcome would ignore the

fundamental purpose of the legislation.

Other aids to statutory construction

The Illinois EPA contends that its proposed rule falls within the plain meaning of

the statute’s text. Industry objectors and the Board, on the other hand, reach a different

conclusion in interpreting the same language. If two possible interpretations of the

statute’s text are reasonably possible, a reviewing court or administrative tribunal should

consider other aids in statutory construction. It is not clear from the Board’s order that

See,

Illinois EPA Reply to Pipeline Consortium’s Objection Motion, filed May 1, 2007, at page 7.

Electronic Filing, Received, Clerk's Office, June 25, 2007

this endeavor was made.

Among other things, a reviewing court or administrative tribunal may look

“beyond the language of the statute when its meaning is unclear” or otherwise

ambiguous.

See, Hansen v. Caring Professionals, Inc.,

676 N.E.2d 1349, 1352 (Ill. App.

Dist. 1997); Solich, 15 Ill.2d 76, 630 N.E.2d 820 (1994). This examination is directed

at the “reason and necessity for the law, evils which the legislature sought to remedy and

the purposes intended to the accomplished.”

Harvel v. City of Johnston City

, 586 N.E.2d

1217 (Ill. 1992

)

. An interpretation of a statute that is demonstrably at odds with the

legislature’s intent, or thwarts it object or policy, is not favored. Moreover, “[i]f the

language of a statute is susceptible to two constructions, one of which will carry out its

purpose and another will defeat it, the statute will receive the former construction.”

Id.,

citing 2A N. Singer, Sutherland on Statutory Construction

, Section 46.05, at 91 (Sands 4

Ed., 1984);

see also, Tucker v. Country Mutual Insurance Company,

465 N.E. 2d 956 (Ill.

App. 4

Dist. 1984)(consideration should be given in such cases to the “the entire statute,

its nature, object and consequences which would result from construing it one way or

another”).

Here, the purpose and object of the fast-track rulemaking process found in Section

28.5 was to prevent federally-imposed sanctions caused by Illinois’ failure to meet new

rulemaking requirements. The statute was enacted by the Illinois General Assembly on

the heels of the completion of a final report and recommendations compiled by an

Attorney General’s Task Force in 1992.

See, Report of the Attorney General’s Task

Force on Environmental Legal Resources (1992).

As the report observed, controversy

had previously ensued over Illinois’ failure to meet the NAAQS standard for ozone in the

non-attainment area of metropolitan Chicago. Moreover, as the Attorney General’s Task

Force noted, the CAAA enacted by Congress in 1990 had placed “unprecedented”

Electronic Filing, Received, Clerk's Office, June 25, 2007

demands on the ability of States in adopting and implementing rulemakings in

accordance with federal deadlines.

Id.

at page 29

In particular, the report emphasized

that “Illinois stands to lose massive federal highway funding and becomes subject to

costly sanctions for failure” to achieve the federal deadlines under the CAAA.

Id.

at page

The Illinois EPA’s interpretation of Section 28.5 presented here will arguably

fulfill the achievement of the legislation’s policy and object, as compared to the

construction adopted by the Board. Construing the statute’s text as inclusive of SIP

submittals, not just specific rules already acted upon by USEPA, will ensure that Illinois

is not subjected to unwanted sanctions. Under the interpretation advocated by industry

and accepted by the Board, a fast-track rulemaking is successfully avoided but it does not

deter or marginalize USEPA’s authority to impose sanctions resulting from the State’s

failure to timely submit a SIP or SIP revision. It is not unreasonable to assume that the

General Assembly would want Illinois’ administrative rulemaking process to error on the

side of caution when faced with the threat of possible sanctions, especially since the loss

of highway funding was specifically referenced in the Attorney General’s Task Force

Report and would have been a significant factor in the creation of the legislation.

It is also remarkably telling that the litigation referenced by the Attorney General

Task Force is so closely analogous to the present case. The litigation in the Wisconsin

lawsuit centered around Illinois’ failure to meet the NAAQS for ozone non-attainment.

In particular, the Illinois EPA had failed to submit a satisfactory SIP for the affected area,

including adequate provisions for RACT and a demonstration that the SIP would likely

achieve attainment. No specific rules or regulations promulgated by USEPA were in

place at the time, except for the usual SIP process under the pre-CAAA statutory regime.

Following a prolonged lull in the SIP development process, and before USEPA could

Electronic Filing, Received, Clerk's Office, June 25, 2007

finalize a formal disapproval of the SIP submittal, the State of Wisconsin initiated suit

against USEPA to compel the promulgation of a federal implementation plan.

See,

Illinois EPA v. USEPA,

947 F.2d 283 (7

Cir. 1991).

If that litigation was a motivating factor in spurring the General Assembly’s

enactment of Section 28.5, then it seems odd, even somewhat absurd, that the legislation

would not apply in a similar setting. After all, the Illinois EPA’s proposed rule

addressing ozone and PM2.5 is meant to address the same type of SIP submittal process.

If the protections afforded by the fast-track legislation were intended to avoid the

circumstances presented in the Wisconsin lawsuit, as the Attorney General’s Task Force

Report clearly suggests, then the interpretation advocated by industry objectors and

embraced by the Board is not only overly-literal, it stands in the way of the

accomplishment of the legislature’s intended goals. It can be noted that a literal

construction of a statute is not controlling where the obvious legislative intent is defeated

or where it leads to a absurd result.

See, Grever v. Board of Trustees of the Illinois

Municipal Retirement Fund,

818 N.E.2d 401, 404-405 (Ill. App. 2

Dist. 2004).

Finally, the Attorney General Task Force’s Report mentioned that the State’s

ability to achieve timely compliance with the CAAA’s requirements is important, as “air

quality is such a serious problem in Illinois.”

See infra, Attorney General Task Force’s

Report

at 30. While much progress towards achieving NAAQS throughout Illinois has

been made in recent decades, considerable work remains to be done. Fast-track

rulemakings for the implementation of federal regulations not only allow the State to

avoid unwanted sanctions, it arguably assures that Illinois is on a path towards achieving

compliance with the CAA all the more sooner. Given the recognized impacts to public

health in areas designated non-attainment for NAAQS and the urging of USEPA to

conduct rulemakings for ozone and PM

2.5 NAAQS at the earliest practicable time, this

Electronic Filing, Received, Clerk's Office, June 25, 2007

goal is furthered by the interpretation of Section 28.5 advocated herein, rather than by the

one recently adopted by the Board.

The Board has misconstrued the meaning of Section 28.5 by reading a

subjective element into the statute’s language relating to USEPA’s imposition

of sanctions.

The Board’s May 17

Order also discusses an alternative basis for its ruling.

Specifically, the Board observes that it is not convinced of any threat of USEPA-

sponsored sanctions outside of the purview of the NOx SIP Call.

See, May 17

Order

page 34. This part of the Board’s holding may have stemmed from various arguments

raised by the industry objectors. The Pipeline Consortium argued that the proposal for

the 8-hour ozone and PM2.5 component of the rule lacks any kind of “immediate time

constraint or threat” of USEPA sanctions.

IERG presented a slightly different argument,

challenging the Illinois EPA’s assertion that the proposed rulemaking must be

“implemented almost immediately or sanctions may be imposed.”

Whether the Board’s alternative holding is derived from the pleadings or from its

independent review, it is clearly erroneous. The Board’s ruling rests on a mistaken

impression that the statute’s text authorizes a subjective element by which one can assess

the threat or immediacy of USEPA-sponsored sanctions. The statute provides no such

thing. Section 28.5, in fact, is silent as to the measurement of a threat level, subjective or

otherwise. Instead, the language plainly hinges on the nature of the sanctions that

USEPA is “empowered” to impose. If USEPA is empowered to impose sanctions under

the CAAA, there is no need for scrutinizing the significance of a threat or its temporal

relationship to the rulemaking process.

See,

Objection Motion filed April 16, 2007, by Pipeline Consortium, at page 6.

See,

Objection Motion filed April 17, 2007, by IERG, at page 9. In IERG’s case, the argument

proceeded on the grounds that USEPA would not actually seek sanctions for any component of the

proposed fast-track rulemaking, as USEPA would accept a SIP submittal where a rulemaking has been

proposed but is not adopted.

Electronic Filing, Received, Clerk's Office, June 25, 2007

This construction of the statutory language, as advocated here, is plain and

unambiguous. More significantly, it underscores the General Assembly’s legislative

intent to protect the State of Illinois against any potential scenario involving USEPA

sanctions. Section 28.5 fast-track procedures provide an appropriate mechanism for

required rulemaking regardless of either the time found on a federal sanctions “clock” or

the various back-and-forth stages of federal rule development. This approach signals a

legislative intent to error on the side of caution any time that the State is dealing with

federal sanctions under the CAAA. By crafting the provision as an extension of

USEPA’s sanctions authority, the legislature arguably keeps the State from being

blindsided by sanctions resulting from a change in federal policy, bureaucratic miscue or

some other unpredictable occurrence.

The issuance of the Board’s May 17

Order violated certain procedural

requirements of Section 28.5, requiring the Board to resume the fast-track

rulemaking process for the R07-19 docket.

On April 19, 2007, the Board directed the Illinois EPA’s fast-track rulemaking

proposal to proceed in accordance with Section 28.5 of the Act. The April 19

Order

opened the R07-18 docket in the rulemaking proceeding and set dates for an initial public

hearing. The April 19

Order was subsequently rescinded by the Board’s May 17

Order

to the extent that the bifurcation of the proceeding brought to an end the fast-track

rulemaking for those sources unaffected by the NOx SIP Call/Phase II.

Section 28.5(f) provides that the Board “shall file the rule for first notice… and

shall schedule all required hearings on the proposal” within 14 days of the filing of the

fast-track proposal.

See,

415 ILCS 5/28.5(f). In its May 17

Order, the Board refuted the

argument that sought to limit the Board’s deliberations on a fast-track proposal to a mere

technical or “checklist” type of review. Citing to an earlier ruling, the Board defended its

general right as an administrative body to assess its jurisdiction over a particular

Electronic Filing, Received, Clerk's Office, June 25, 2007

proceeding.

See, May 17

Order,

at page 33. The Board went on to conclude that

Section 28.5 and supporting case law authority permit it to consider whether a fast-track

proposal may proceed under the fast-track ruling procedures.

Id.

The issue that the

Illinois EPA addresses in this Motion is the authority of the Board to “continue to

proceed” with a fast-track proposal after the Board has previously ordered, within the

initial 14-day period of receipt, that the matter proceed under the fast-track procedures.

Courts frequently observe that administrative agencies are creatures of statute and

that they are authorized to act only pursuant to the powers “specifically conferred” upon

them by the legislature.

See, Reitner v. Neilis,

466 N.E.2d 696, 699 ((Ill. App. 3

Dist.

1984). From this principle flows the recognition that an administrative agency possesses

no inherent ability to amend or reconsider its decisions.

Id.

For this reason, an

administrative agency may “undertake a reconsideration of a decision only where

authorized by statute.”

Reichhold Chemicals, Inc., v. Illinois Pollution Control Board,

561 N.E.2d 1343 (3

Dist. 1990); Caldwell v. Nolan, 522 N.E.2d 175 (Ill. App. 1

Dist.

1988). Where an agency lacks the enabling authority to modify its decision, any such

modification is generally regarded as null and void.

If the Board is correct in the view that its deliberations amount to more than

simply a “checklist review” of a fast-track proposal, then those deliberations must

arguably take place within the 14-day period allotted in Section 28.5(f). However, once

the Board orders that the proposal must proceed with all required hearings and public

notice under Section 28.5(f), the Board must rely upon express statutory authority to

amend or modify any such decision. The fast-track procedures are silent with respect to

the Board’s reconsideration of its decisions. Significantly, the absence of such authority

may reflect the legislature’s desire to ensure completion of the fast-track rulemaking

process in an expedited fashion.

Electronic Filing, Received, Clerk's Office, June 25, 2007

This issue ultimately goes to the heart of the Board’s jurisdiction (i.e., authority to

act) in the remaining proceedings for the R07-19 docket. Because the Board lacked

authority under Section 28.5 to reconsider its April 19

Order, the Board was without

authority in its May 17

Order to halt the fast-track rulemaking process for those sources

unaffected by the NOx SIP Call/Phase II. In order to move the Illinois EPA’s proposal

forward in a manner consistent with the spirit and intent of Section 28.5, the Board

should rescind its May 17

Order to the extent that it ended the fast-track rulemaking

relative to sources and/or emission units unaffected by the NOx SIP Call/Phase II.

particular, the Board should place the rulemaking for those latter affected sources and/or

emissions units back on a path towards fast-track rulemaking under Section 28.5,

including taking steps necessary to procure the scheduling of required hearings and

employing its best efforts to expedite the rulemaking

At this juncture, little harm seems

evident from the Board’s decision to separate the dockets. Thus, the NOx 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

R07-19.

The Board also arguably failed to observe an additional procedural requirement of

Section 28.5. Section 28.5(m) provides that the Board cannot unilaterally change the

Illinois EPA’s fast-track proposal until the end of the rulemaking process. Specifically,

the provision states that the Board “shall not revise or otherwise change an Agency fast-

track rulemaking proposal without agreement of the Agency until after the end of the

hearing and comment process.”

See,

415 ILCS 5/28.5(m)(2006). The Board’s May 17

Order revised the April 6, 2007, fast-track rulemaking proposal, without prior or later

The Board actually will not be “rescinding” its May 17

Order as much as recognizing that it was

outside the reach of reconsideration.

Electronic Filing, Received, Clerk's Office, June 25, 2007

agreement from the Illinois EPA, by splitting off the component of the proposed rule

affecting 8-hour ozone and PM

10 sources from the fast-track rulemaking process. In

doing so, the Board failed to observe a mandatory requirement of the fast-track ruling

process. While this deficiency probably does not rise to the level of a jurisdictional

requirement, the Board is not without an ability to correct it. As discussed above, the

Board may accomplish such a feat by simply resuming fast-track rulemaking for the

sources affected by the newly docketed R07-19 proceeding.

Wherefore,

the Respondent respectfully requests that the Board reconsider its

May 17

Order in light of the arguments raised herein and, further, that the Board order

the resumption of a fast-track rulemaking proceeding for all sources and/or emission units

now contained within the R07-19 docket.

Respectfully submitted by,

_____/s/_____________________

Robb H. Layman

Assistant Counsel

Dated: June 25, 2007

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 524-9137

Electronic Filing, Received, Clerk's Office, June 25, 2007

CERTIFICATE OF SERVICE

I hereby certify that on the 25th day of June 2007, I did send, by electronic mail,

the following instruments entitled

APPEARANCE and MOTION FOR

RECONSIDERATION

to:

John Therriault, Acting Clerk

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

and a true and correct copy of the same foregoing instrument, by First Class Mail with

postage thereon fully paid and deposited into the possession of the United States Postal

Service, to:

Timothy Fox, Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Chicago, Illinois 60601