1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
NO
x
TRADING PROGRAM:
)
R06-22
AMENDMENTS TO 35 ILL. ADM. CODE
)
(RulemaAir)
king –
PART 217
)
NOTICE
TO:
John Therriault, Assistant Clerk
Alec M. Davis
Timothy Fox, Hearing Officer
Illinois Environmental Regulatory Group
Illinois Pollution Control Board
3150 Roland Ave.
State of Illinois Center
Springfield, IL 62705-5776
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
Mitchell Cohen, Chief Legal Counsel
Department of Natural Resources
Kathleen C. Bassi
One Natural Resources Way
Shiff
c
Hardin, LLP
Springfield, Illinois 62702-1271
6600 Saers Tower
233 S. Wacker Drive
Katherine Hodge
Chicago, IL 60606-6473
N. LaDonna Driver
Monica T. Rios
Hodge Dwyer & Driver
3150 Roland Ave., PO Box 5776
Springfield, IL 62705-5776
PLEASE TAKE NOTICE that I have today filed with the Office of the Pollution Control Board
the attached RMOTESPIONONSF
E OR
TORECONSIDERATION AND CLARIFICATION
OF THE ILLINOIS POLLUTION CONTROL BOARD’of
Sthe
AUGUST 20, 2009 ORDER
Illinois Environmental Protection Agency a copy of which is herewith served upon you.
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
By: ___/s/___________________
Assistant Counsel
Division of Legal Counsel
DATED
: October 26, 2009
P.O. oxB 19276
Springfield, Illinois 62794-9276
217
.782-5544(TDD) 217.782.9143
Electronic Filing - Received, Clerk's Office, October 26, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
NO
x
TRADING PROGRAM:
)
R06-22
AMENDMENTS TO 35 ILL.
)
(Rulemaking
Air) –
CODE PART 217
)
RESPONSE TO MOTION FOR RECONSIDERATION AND CLARIFICATION OF THE
ILLINOIS POLLUTION CONTROL BOARD’S AUGUST 20, 2009 ORDER
NOW COMES the Illinois Environmental Protection Agency (“Illinois EPA”), by and
through its attorneys, and pursuant to 35 Ill. Adm. Code 101.500 and 102.212(a) and (d), hereby
files
responsa
e to Motion for Reconsideration and Clarification of the Illinois Pollution Control
Board’s August 20, 2009 Order, and, respectfully requests that the Illinois Pollution Control
Board (“Board”) to dismiss these Motions. In support of its Response, the Illinois EPA states as
follows:
I.
Procedural History
1.
On August 3, 2009, Illinois Environmental
a
Regulatory Group (“IERG”) filed
MOTION FOR EMERGENCY RULE and MOTION FOR EXPEDITED ACTION ON THE
ILLINOIS ENVIRONMENTAL REGULATORY GROUP’S ALTERNATIVE PROPOSAL.
2.
On August 6, 2009, the Board directed participants to file responses to the
motions no later than Thursday, August 13, 2009. The Illinois EPA filed a response on August
13, 2009, nd
a IERG filed a Response to that Response
3.
On August 20, 2009, the Board denied IERG’s Motions for Emergency
Rulemaking. In pertinent part, the Board held that IERG has not persuasively argued that
Section 9.9 of the Illinois Environmental Protection Act (“Act”) (415 ILCS 5/9.9) authorizes
IERG to propose a trading program. Bd. Op. at 33.
4.
On September 13, 2009, IERG filed a Motion for Reconsideration and
Clarification arguing that the Board had misapplied the law when IERG’s Motions for
Emergency Rulemaking were denied.
5.
On September 24, 2009, the Illinois EPA received a letter from USEPA indicating
that units have no obli
x
allowagatncion
es tequo hold
al tNOo the amount of ozone season
emissions.
6.
On September 28, 2009, the Illinois EPA filed Motion to File Instanter and
Motion for Extension to File a Response.
7.
On October
1, 2009, the Hearing Officer granted an extension until October 13,
2009.
8.
On October 14, 2009, the Illinois EPA filed a Motion to File Instanter and Motion
for Extension to File a Response until October 26, 2009.
9.
On October 15, 2009, IERG withdrew its request for reconsideration but not
clarificSpeactiificaon.
lly, IERG asked for clarification of “whether the Board will accept a
rulemaking proposal proposed pursuant to Section 9.9 of the Act from parties other than the
Illinois EPA.” (Motion to Withdraw at Section III at p. 4 and Motion for Reconsideration at
Section V at p. 14).
10.
On October 23, 2009, the Hearing Officer granted an extension until October 26,
2009.
II.
Standard for Statutory Interpretation
11.
It is well founded that reviewing courts will give statutory language its plain and
ordinary meaning, and where a statute is clear and unambiguous, it must be enforced as written
without resort to further
Town
aids
and Coun
of
try
st
Utili
a
tie
tut
s, Inc. v
or
.
y construction.
Illinois Pollution Control Board
, 225 Ill.2d 103, 117, 310 Ill. Dec. 416, 86
.
6 N.E.2d 227 (2007)
Courts may not depart from the statute’s plain language by reading into it exceptions,
limitations, or conditions
Id.
not expressed therein.
III.
IERG Lacks Authority Under Section 9.9 of the Act to Propose Regulations
12.
This statute is clear, when it states that: “the Agency shall propose and the Board
shall adopt regulations to iSmpltatutes
eament
re
to be
….” 415
reaILd aCs
Swr
5/9.9(b)itten
.
if
they are clear on their face. There can be no alternate interpretation of this phrase to give
authority to other entities to propose regulations citing Section 9.9 of the Act as their authority.
Where
statut
a
e specifically states who is authorized to take action, it implicitly excludes others
from assertinOnlg that
y the
authoIllinoiritys
. EPA, and not IERG or any other entity, is
authorized to propose regulationsThe
pursua
Illinois
nt tEPo SA
ection 9.9 of the Act.
respectfully concludes IERG may not propose a regulation pursuant to Section 9.9 of the Act due
to a clear lack of statutory authorization.
CONCLUSION
WHEREFORE, for the reasons stated above, the Illinois EPA respectfully requests that
the Board find that IERG lacks the authority to propose regulations pursuant to Section 9.9 of the
Act.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By: /s/
Assistant Counsel
Air Regulatory Unit
Division of Legal Counsel
DATED: October 26, 2009
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217.782.5544, 217.782.9143 (TDD)
Electronic Filing - Received, Clerk's Office, October 26, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINOIS
)
)
SS
COUNTY OF SANGAMON
)
)
CERTIFICATE OF SERVICE
I, the undersigned, an attorney, state that I have served electronically the attached
RESPONSMOTE TOION FOR RECONSIDERATION AND CLARIFICATION OF
THE ILLINOIS POLLUTION CONTROL BOARD’Sof
AUGUST 20, 2009 ORDER
the Illinois Environmental Protection Agency upon the following persons:
John Therriault, Assistant Clerk
Alec M. Davis
Timothy Fox, Hearing Officer
Illinois Environmental Regulatory Group
Illinois Pollution Control Board
3150 Roland Ave.
State of Illinois Center
Springfield, IL 62705-5776
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
Mitchell Cohen, Chief Legal Counsel
Department of Natural Resources
Kathleen C. Bassi
One Natural Resources Way
Schiff Hardin, LLP
Springfield, Illinois 62702-1271
6600 Sears Tower
233 S. Wacker Drive
Katherine Hodge
Chicago, IL 60606-6473
N. LaDonna Driver
Monica T. Rios
Hodge Dwyer & Driver
3150 Roland Ave., PO Box 5776
Springfield, IL 62705-5776
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
___/s/__________________
Assistant Counsel
Air Regulatory Unit
Division of Legal Counsel
Dated: October 26, 2009
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
(217)782-5544
217.782.9143 (TDD)