CLERK’S ~

MAR

02003

STATE OF ILLINOIS

ILLINOIS

POLLUTION

CONTROL

BOARD

polIuuonC0nt~~00~

IN THE MATTER OF:

PROPOSED AMENDMENTS TO:

PUBLIC PARTICIPATION RULES

 IN 35

)

 R03-19

ILL. ADM.

 CODE PART 309 NPDES

)

 (NPDES Rulemaking)

PERMITS

AND

PERMITTING

PROCEDURES

NOTICE OF FILING

PLEASE

TAKE

NOTICE

that

this

date,

March

____

2003,

filed with Ms. Dorothy M.

 Gunn,

 Clerk of the ILLINOIS POLLUTION

CONTROL BOARD,

 James R.

 Thompson Center,

 100 West Randolph

Street,

 Suite #11-500,

 Chicago,

 IL 60601,

 an original and nine

copies of my

STATEMENT OF PREFILED TESTIMONY REGARDING RO3 -19,

which document was filed by mail.

Fred

 L. Hubbard

 (Reg.

No.

 1275682)

Counsel for Vermilion Coal Company

415 N.

 Gilbert Street,

 P0 Box 12

Danville,

 IL 61834

FRED

 L. HUBBARD

Attorney at Law

415 N.

 Gilbert Street

 P0 Box 12

Danville,

 IL 61834-0012

Telephone:

 (217)

 446-0144.

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the

 Statement of

Prefiled Testimony Regarding R03-19

 filed by mail in this matter

March

/~‘

 2003,

 was served upon Albert

 F. Ettinger,

Environmental Law and Policy Center,

35

 E. Wacker Drive,

 Suite

#1300,

 Chicago,

 IL 60601,

 and Marie E.

 Tipsord, Hearing Officer,

Illinois Pollution Control Board,

 100 W. Randolph Street,

 Suite

#11-500, Chicago,

 IL 60601; by mailing a true copy of the ~

to

the above-named persons at the above addresses on March

/S7’—

2003,

 enclosed in a sealed envelope with postage duly affixed and

prepaid.

Fred L.

 Hubbard

FRED

 L. HUBBARD

Attorney at Law

415 N. Gilbert Street

P0 Box 12

Danville,

 IL 61834-0012

Telephone:

 (217)

 446-0144.

ILLINOIS POLLUTION CONTROL B

RD

 STATEOF IWNOIS

Pollution

 Control

Board

 IN THE MATTER OF:

PROPOSED AMENDMENTS TO:

PART 309 SUBPART A

35

 Ill. Adm.

 Code 309.105,

 309.7,

 309.8,

309.9,

 309.10,

 309.12,

 309.13,

 309.14,

309.117, 309.119,

 309.143, 309.147; and

PROPOSED 35

 Ill. Adm.

 Code 120 through

122

 NPDES PERMITS

AND

PERMITTING

PROCEDURES

STATEMENT

 OF PREFILED TESTIMONY

REGARDING R03-19

FRED

L.

 HUBBARD, prefiles testimony regarding proposed rule

changes and states:

1.

 I am an attorney practicing law in Danville, Vermilion

County,

 Illinois,

 including environmental matters.

2.

 The rule changes proposed by the Environmental Law and

Policy Center and Prairie Rivers Network are replete with

descriptive terms that can be subjective in the following

respects:

309.105

f)

 The term “fair”

 is used to describe

opportunity.

 Who is to determine what

 is fair.

 This

 is likely

to be a source of extended discussion,

 dispute and hearings.

309.105

g)

 The term “consistent with any applicable

federal law” is subject to interpretation as to what is

consistent and what law applies.

309.108

c)

 While statutory and regulatory provisions would

 certainly be a reasonable requirement,

 the term “appropriate”

requires some subjectivity and the derivation of permit

conditions requires a disclosure of all of the thought processes

and backgrounds of the individual or committee establishing the

conditions.

As

 such,

it

 is subject to interpretation as to

whether or not all of the factors of derivation are included,

which creates uncertainty.

It

 is my opinion that there are

already enough hearings in the procedure without re-noticing and

creating additional hearings as subjected by 309.109, 309.121,

and 309.122.

 There is a hearing provision under 35 Ill.Adm.Code

Part 105 which

 is a catchall review hearing which appears to have

been totally ignored in the proposed drafts.

 If that hearing

isn’t available to all the issues sought by the changes

 in rules,

perhaps it

 is a meaningless hearing.

 If it

 is available,

 then

the additional hearing requested under 309.121 and 309.122 would

appear to be duplicative.

309.13

5)

9)

 The additions in 309.13 of

5)

 through

9)

appear to be narrowly restrictive rather than allowing the Agency

some room to maneuver their permit and fact sheet

 to accomplish

the goal of reasonable control without constituting an uncon-

stitutional taking.

 The more restrictive and specific the rules,

the greater opportunity for creating additional hearings and

points of contention.

309.117

 Proposed change to 309.117 could be unduly broad

requiring such things as school texts,

 news articles, pro-

fessional publications,

 seminars, continuing education materials,

and life experiences,

 all of which go into a decision making

process.

 It also appears

 to apply only to the Agency or the

applicant.

 If it

 is fair and reasonable for the Agency and

applicant to provide documents and materials referred to or

relied on, then a similar requirement should be imposed upon

objectors.

309.120

 The change to 309.120 appears to provide for an

unlimited comment period.

 There should be some reasonable

restriction on the time for the comment period in order to keep

matters moving.

The preceding comments equally apply to 309.121 and 309.122.

The entire premise of proposed additions 309.120 through 309.123

is that a draft permit

 is “significantly” modified.

 Significant

is a subjective term leaving much argument as to how significant

is significant.

 Rules of law and regulations should be suffi-

ciently definite and objective that parties may govern their

conduct

 in accordance with the rules and regulations.

 When terms

like fair,

 necessary,

 reasonable, appropriate,

 significant,

workable and similar terms are injected into rules and regula-

tions, they become subjective and do not provide reasonable

degrees of certainty to applicants and objectors whereby there is

any certainty as to the application process or the objection

process.

 If a permit

 is issued that

 is subject to heavy

objection, the objectors can always argue that it was

significantly modified if there is any change whatsoever.

Likewise,

 an applicant seeking to sustain a permit over objection

could argue that the objector’s position is not tenable because

there wasn’t a significant modification.

 The entire concept is

an invitation to ad hoc decisions which are generally considered

to be less desirable.

The same comment applies to the proposed change to 309.143

and 309.146.

 They inject the term reasonable or adequate or

proper or appropriate,

 all of which are subjective.

 A good

illustration of the concern which

 I offer to the Board is the

former Illinois speed limit of “reasonable and proper” which was

found by the Courts to be substantially unworkable and sub-

jective.

 While that statute

 is still on the books, both law

enforcement and vehicle operators have found it much more certain

and definite to establish specific mile per hour restrictions

rather than relying on the old “reasonable and proper”

 standard.

Respectfully submitted,

Fred L.

 Hubbard

Attorney at Law

415 N. Gilbert Street

P0 Box 12

Danville,

 IL 61834-0012

Telephone:

 (217)

 446-0144

CLERK’S

OFFICE

MAR

02003

STATE OF IWNOIS

Pollution

Control

Board

March

18,

2003

Ms. Dorothy M.

 Gunn,

 C1er~ of the Board

ILLINOIS POLLUTION CONTROL BOARD

James

 R. Thompson Center

100 West Randolph Street

Suite #11-500

Chicago,

 IL 60601

Re:

 Proposed Amendments to Part 309

Subpart A

 35 Ill.Adm.Code, R03-19

Dear Ms. Gunn:

Enclosed please find an original and nine copies of

Statement of

Prefiled Testimony Regarding R03-19

and

 Notice of Filing said

Statement

Prefiled

Testimony

the

 above matter.

Sincerely

yours,

Fred L.

 Hubbard

FLH: jml

enc:Statement of Prefiled Testimony

 (Original

&

 9 Copies

:Notice of Filing

 (Original

&

 9 Copies)

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217-446-0144

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217-477-057~~