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

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