ILLINOIS POLLUTION
    CONTROL BOARD
    March
    8,
    1q84
    FORD
    MOTOR
    COMPANY,
    )
    )
    Petitioner,
    )
    v.
    )
    PCB
    83—105
    )
    R83—36
    ENVIRONMENTAL PROTECTION
    )
    AGENCY,
    )
    )
    Respondent.
    ORDER
    OF THE
    BOARD
    (by J.
    0.
    Dumelle):
    This matter comes before
    the
    Board upon a December 23,
    1983
    motion to dismiss filed by the Illinois Environmental Protection
    Agency
    (Agency) to which the Ford Motor Company (Ford) responded
    on January 3,
    1984.
    The
    Agency states that it is in agreement
    with Ford that “when
    the
    Board adopted 35
    Iii.
    Ada.
    Code
    S215.204(a)(1)” in R70—3,—4,
    “it relied on a mistake in the
    record,” that mistake being that the United States Environmental
    Protection Agency (USEPA) based its Control Technique Guidelines
    for surface coating on a 40
    transfer efficiency rather than the
    subsequently determined 30
    efficiency
    (see (JSEPA memos regarding
    transfer efficiency in Ex. A of Ex.
    A of Ford’s December 2,
    1983
    Amended Petition for Variance).
    The
    Board agrees that when R78-3,-4 was adopted, the limita-
    tions of Section 215.204(a)(1) were intended to track the federal
    guidelines and that those federal guidelines were
    based
    upon a
    mistake of fact,
    upon
    which the Board,
    in turn, relied.
    The
    Board further agrees that the simplest solution to this problem
    is to allow the Agency to construe Section 215.204(a)(l)
    consistently with the federal guidelines.
    This is especially
    true since the Ford plant ii the only plant affected by the rule.
    Unfortunately, were the Board to accept. the Agency’s
    position, the Board would be condoning the practice of allowing
    effective rules to mean
    something
    other than what they say.
    While
    it is somewhat difficult to determine what is intended by
    the present rules, the Board finds that Ford has properly
    construed them,
    and as such,
    must
    seek
    variance or site—specific
    regulatory
    relief to avoid possible enforcement by the Agency or
    any citizen.
    In short, the Board
    agrees
    that
    its
    present
    rule
    was
    based
    on
    inaccurate
    information
    and
    should be reconsidered, and that
    for a rule to be reconsidered,
    a rulemaking is necessary.
    The
    Agency cannot simply ignore the rule or construe it as requiring
    something other than what it requires.
    57.17
    2
    The
    notion
    to dismiss is hereby denied.
    It may be argued that this action elevates form over substance
    However,
    the
    procedures for rulemaking established in the
    Environmental Protection Act were established so that rulemakings
    are subject to full public scrutiny and comments.
    To grant the
    Agency’s motion to dismiss would avoid this public oversight.
    Even if the Agency’s substantive position is ultimately found to
    be the correct one, the Board cannot condone improper procedures
    to reach
    the
    desired result.
    IT
    IS
    80
    ORDERED.
    I,
    Christan
    L.
    t4offett,
    Clerk
    of
    the
    Illinois
    Pollution
    Control
    B~rd hereby
    certify
    that
    the
    above
    Order
    was
    adopted
    on
    the
    8
    dayof
    ______________,1984bya
    vote
    of
    ~-O
    —.
    C ristan L. Moffé~j~
    Clerk
    Illinois Pollution Control Board
    57-18

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