ILLINOIS

POLLUTION

CONTROL

BOARD

January 30,

2009

CLERK’S

OFFGE

IN THE

MATTER

OF:

)

AIR

QUALITY

STANDARDS

CLEAN-UP:

)

R09-19

AMENDMENTS

TO 35 ILL.

ADM. CODE

)

(Rulemaking

- Air)

PART 243

)

HEARING OFFICER

ORDER

On December

1, 2008,

the

Illinois Environmental

Protection

Agency

(Agency) filed

with

the Board

a proposal

under the general

rulemaking provisions

of

Sections

27

and 28 of

the

Environmental

Protection

Act

(Act)

(415 ILCS 5/27, 28

(2006)).

Generally,

the

Agency

proposes

to amend Part 243

of the Board’s

air pollution

regulations (35 Ill.

Adm.

Code

243)

to

incorporate

new federal

air quality

standards. In an order

dated December

18, 2008, the Board

accepted

the

proposal for

hearing

and directed

the assigned

hearing officer

to proceed

expeditiously

to hearing

in this matter.

In

an

order and

notice of hearings

dated December

23, 2008,

the

hearing officer

scheduled

two hearings:

the first on Tuesday,

February

3, 2009, in Edwardsville,

and the

second

on Tuesday, March 10,

2009,

in Chicago.

In the same

order, the hearing

officer directed

any

participant wishing

to testify at

the first hearing to pre-file

their

testimony

and any related

exhibits

no later

than January 20, 2009.

Motion

to Reschedule

Hearing

On January

20, 2009,

the Agency

filed a motion to reschedule

the February

3,

2009

hearing as

well as the deadline

to pre-file testimony

(Mot.

Reschedule). On the

same date,

the

Agency also

filed

a

motion

to amend its

original rulemaking

proposal (Mot.

Amend). The

Agency states

that it seeks to

amend “to update

the existing

proposal to incorporate

a new

federal

air quality standard

for lead.”

Mot. Reschedule

at 1; see Mot.

Amend at 2-3. Specifically,

the

Agency seeks

to amend Section

243.126

of

the Board’s air pollution

regulations

“to replace

the

existing standard

for lead.”

Mot. Reschedule at

1;

see 35 Ill.

Adm. Code 243.126(a),

Mot.

Amend at

3. The Agency also

seeks

to update

a citation to the

Code of Federal

Regulations

to

reflect the new

lead standard.

Mot.

Reschedule

at 1-2;

see 35

Ill. Adm. Code 243.108(e),

Mot.

Amend at

3.

With

the proposed

addition of this new

language,

the

Agency effectively

requests

that

the

Board

postpone the date of

the

first hearing

to March 10, 2009,

which is now

the scheduled

date

of the second hearing

in this docket.

Mot. Reschedule at

1-2.

The Agency

also requests that

the

Board set

a new deadline

for pre-filing

testimony.

Id.

Section 101.500(d)

of the Board’s

procedural

rules provides

that,

In compliance

with

the Americans with

Disabilities Act and other

applicable federal

and

State

laws, the hearing will

be

accessible

to individnuls

with

disabilities.

Persons requiring auxiliary

aids

and

services should contact John

1herriault, Assistant Clerk

of the Board, at 100 West

Randolph

St..

Suite 1 1—500. Chicago,

Illinois

60601

,at telephone

number 3

2/814—6931,

Dx number 312/814—3669.

or 11)1) number 31 2/814—6032,

live

days

prior

to the

hearinrt,

---

2

[w]ithin

14

days after

service of a

motion,

a party may file

a

response

to the

motion.

If no response

is filed, the party

will

be deemed

to have

waived

objection

to the

granting of the motion,

but

the

waiver

of objection

does not bind

the Board

or the

hearing

officer

in its disposition

of the motion.

Unless

undue

delay

or

material

prejudice

would

result,

neither the Board

nor

the hearing

officer will

grant

any motion

before

expiration

of the 14

day response period

except in

deadline

driven

proceedings

where

no waiver

has been filed.

Parties

may request

that the

Board

grant more

time to respond

by filing a motion

for extension

of

time.

The Agency

filed its motion to reschedule

at the

deadline

for

pre-fihing testimony,

which fell 14

days

before the scheduled

hearing

date.

Id.

Under these circumstances,

allowing

a 14-day

response period

to run may require

the Agency

and other

participants

to prepare prematurely

or

unnecessarily

for

the

originally-scheduled

hearing

date. Accordingly,

allowing

the 14-day

response period

to run would result

in

undue delay

in addressing

the Agency’s motion,

so the

hearing

officer

will

rule

on the

motion to reschedule.

The

Agency’s

motion to

reschedule is granted.

The first

hearing in this proceeding

will

take place on the date,

time, and location

originally

scheduled

for the

first hearing:

Tuesday,

March

10,

2009,

at 9:00 AM

in

the Board’s

Conference

Room 11-512

of the James

R. Thompson

Center

at 100

W. Randolph in Chicago.

Among

other

business

at the hearing on March

10,

2009, the Board intends

to schedule

a

second

hearing and set a deadline

for pre-fihing

testimony

for it.

Pre-Filing

Deadlines

Participants

who

intend to testify

at the hearing on

March

10,

2009 are urged to pre-file

their

testimony and directed

to serve any

pre-filed testimony

on the hearing

officer

and

all

persons on the Service

List. Before

filing pre-filed testimony

or any

other document with

the

Board’s

Clerk, please check

with the Clerk

to obtain

the most recent version

of the Service

List.

Participants who wish

to pre-file

testimony

for

the

March 10, 2009,

hearing

are

directed

to pre-file

all

of

their testimony

and any

related exhibits

no later than

Tuesday, February 24,

2009.

The “mailbox rule”

at

35 Ill. Adm.

Code

101.300(b)(2)

does

not apply

to

the

filing

of any

pre-filed

testimony

in this

proceeding.

The Board’s Clerk

must receive

these

documents before

the close

of business on the

specified

dates.

Although

documents may be

filed

electronically

through

the

Clerk’s

Office

On-Line

(COOL) from the Board’s

Web

site

at www.ipcb.state.iI.us,

all electronic

or approved

fax

filings must

be received

by the Clerk’s Office

no later than

4:30

PM on the due date. Any

questions

about electronic filing

through COOL

should be

directed

to

the Clerk’s

Office

at (312) 814-3629.

Order

of

Hearings

As

noted in

the

original

notice

of hearings,

Section

27 of

the

Act

(415

ILCS 5/27 (2006))

does not limit

the

first hearing to

the testimony

of

the

proponent,

but the hearing

officer

intends

to

begin the first hearing

with

the Agency’s

presentation as the proponent.

For

the first hearing,

a brief

summary of

testimony will

be allowed if

a

witness

wishes

to provide

one

before

---

3

responding

to questions.

All pre-filed

testimony will be

entered into

the record as if read.

See

35

Ill. Adm.

Code 102.424(f).

After

the Agency has addressed

all

questions from other participants,

and if time

permits

before the conclusion

of the

first hearing, other

participants

who

have pre-filed testimony

may

then testify.

Participants

who do not pre-file

testimony

will be allowed to testify

as time permits

after

the conclusion of pre-filed

testimony

and the questions

based

upon it.

Any

participant

who wishes

to

offer

a public

comment at either hearing

will

be allowed

to do so if time permits

at

the close

of the testimony and

questions based

upon

it. The Board’s

procedural

rules

also include an

opportunity to file post-hearing

comments.

See 35 Ill.

Adm.

Code 102.108(b). The

rules also provide

that “[t]he Board

will accept

written comments from

any

person concerning

the proposed regulations

during

the first notice period.”

35 Ill.

Adm.

Code 102.604.

Service and

Notice Lists

The Service List

for this rulemaking

is

the list of

persons who wish to

participate

actively

in this

proceeding

and to receive not only

the

Board’s opinions

and orders

but also other filings

such as pre-filed testimony

and

public

comments.

The Notice

List

includes

participants

who

wish to receive only

the Board’s opinions

and orders

and hearing officer orders.

Note that

interested

persons

may

now request

electronic

notice

of filings by providing

their

e-mail address

through

COOL under this docket

number R09-19.

This electronic

notice

includes

notice

of the filing of

documents that are

not typically provided

to persons on

the

Notice

List.

In

addition, COOL provides

links to documents

filed

with

the Board, and those

documents

can

be viewed,

downloaded, and

printed free

of charge as soon as

they

are posted

to the Board’s

Web

site. For more information

about the option

of electronic

notice

or COOL, please

consult

either

the

Board’s Web

site at www,ipcb.state.ii.us

or John Therriault,

the

Board’s

Assistant

Clerk,

at (312) 814-3629.

IT

IS

SO

ORDERED.

Timothy

J. Fox

Hearing

Officer

Illinois Pollution

Control Board

100W. Randolph

St.,

Suite 11-500

Chicago,

Illinois

60601

312-814-6085

foxt@ipcb.state.il.us

---