ILLINOIS POLLUTION CONTROL BOARD
February 27,
1992
IN THE MATTER OF:
)
)
DIESEL VEHICLE EXHAUST
)
R90-20
OPACITY LIMITS
)
(Rulemaking)
ADOPTED. RULE
FINAL NOTICE
DISSENTING OPINION
(by RC.
Flemal):
I dissent from the action taken today by the majority.
I
cannot see that the amendments to our diesel exhaust rule as
today adopted offer any significant improvement over the previous
rule.
Moreover,
I fear that, good intentions not withstanding,
today’s amendments could actually worsen problems associated with
diesel exhaust.
This proceeding started with a laudable goal:
to “upgrade”
a
not—very--effective diesel exhaust rule.
It also started from a
logical premise:
that Illinois might profitably model
a revised
diesel rule upon the proven regulations of another state
(California).
The Board accordingly gave the idea a trial
by
offering the “California regulations” for first notice.
However,
it was apparent soon thereafter that as
a threshold
matter
it was not possible for the Board to adapt the “California
regulations” to Illinois,
no matter what merits the California
model might be viewed as having.
The Board simply does not have
the authority to implement major portions of the “California
regulations”; neither does the mix of agency duties,
responsibilities, and resources in Illinois lend itself to the
California model.
With these realizations in hand and if anything at all was
to be done,
I believe that the Board should have “started over”
by discarding the California model and looking to other
alternatives.
Instead,
it chose to move a shadow of the
California model to second notice and today to final adoption.
What has been adopted thereby bears little resemblance to the
proposal upon which most of the record
is focused.
It also has
not been afforded the scrutiny of hearing and full comment.
Given this history,
it
is perhaps fortunate that the only
substantive element of today’s amendments
is the replacement of
the visual opacity test with the snap idle test.
This is done
under the theory that the visual opacity test is unenforceable
(the merits of which are debatable).
However,
there
is a theory
130—389
—2—
that the snap idle test, too,
is unenforceable
(a theory with
which even the majority appears to agree).
At its best, today’s action would thus appear to have
replaced one unenforceable test with another unenforceable test.
At its worst, today’s action may lessen the ability to enforce
against diesel exhaust violations
(see e.g.,
the comments of the
Illinois Environmental Protection Agency at PC #133 and of the
Chicago Lung Association et
al.
at PC #135).
Ronald
C.
Flemal
Board Member
I, Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that the above Dissenting Opinion was
submitted on the
~
day of
Control Board
130—390