ILLINOIS
POLLUTION
CONTROL
BOARD
January
21,
1993
IN
THE
MATTER
OF:
)
)
AMENDMENTS
TO
THE
NEW
)
R92-21
SOURCE
REVIEW
RULES
)
(Rulemaking)
35
ILL.
AD!!. CODE 203
)
CONCURRING OPINION
(by J. Theodore
Meyer):
I concur with the majority’s conclusion
that
the
Agency
should be available to answer questions at
the
second
bearing.
However, I would have strictly
limited
the
questions to which
the
Agency must respond, to questions related
solely to
modifications
to the proposal made by the Agency at the first hearing.
I believe that Section 28.5(g) (2),
read
strictly, may not
require the Agency to answer questions at
the
second hearing.
The responses to the Agency’s objection place a great deal of
emphasis on the statute’s use of the
word
Uconfined~when
discussing the first hearing, as opposed to
the
use of
the
word
“devoted” when referring to the
subject
matter of
the
second
hearing.
After considering the definitions of those two words, I
cannot see a substantive difference between their meanings.
“confine” is defined as “to keep within bounds; restrict”, while
“devote” is defined as “to give or apply (one’s time,
attention,
or
self)
entirely
to
a particular activity, pursuit, cause, or
person;
to
set
apart
for
a
specific
purpose
or
use”.
(American
Heritaae
Dictionary
308,
390 (2d ed.
1985).)
Given the plain
meaning
of
these
two
words,
I cannot find that the legislature
intended
different
results in the interpretation of
subsection
(g) (1) as opposed to subsection
(g) (2).
However,
I do believe that the legislature intended that all
persons
have
the
opportunity
to question the Agency regarding the
proposed
rules.
Thus,
although
the
statute
does
not
directly
address
what
is
to
occur
in
the
event of a modification to
those
proposed
rules,
I
find
that
it
is
reasonable,
and
comports
with
the
legislative
intent
of
Section
28.5,
to
find
that
the
Agency
should
answer
questions,
posed
at
the
second bearing, which
relate
only
to
modifications
proposed
by
the
Agency at
(or after)
the first hearing.’
If there was provision in
the
statute
for
any
person
to
request
the
third
hearing, I would find that the
Agency
should
not
answer
questions
at
the
second
hearing.
Of course,
in this proceeding only,
I support the
hearing officer’s determination
that
the Agency should answer all
questions from those in the Mount Vernon area who allege that
they were prejudiced by the 29—day notice.
O138~O853
2
However
Section 28.5(g) (3) clearly states that if the Agency
indicates that it does not intend to introduce any additional
material, the Board shall cancel the third hearing.
Since there
is
no
way
for
a
person to request a third hearing, so that they
could question the Agency about modifications to the proposal, I
believe that such questions should be allowed at
the
second
hearing.
I do not agree,
however,
with
the suggestion that
nuances of the
Agency’s
proposal which emerge at the first
bearing should be subject to questioning at the second bearing.
The first hearing is clearly intended for all persons to question
the Agency about the proposal.
In other wards, persons wishing
to ask questions get one shot, and one shot only.
I must also voice my
disagreement
with the majority’s
comment that “taking the Agency’s espoused position, one could
argue that if the Agency is neither an ‘affected entity’ nor an
‘interested party’, then the Agency would not be able to
participate in any fashion at the second hearing.”
(Majority op.
at 3.)
I assume that this comment arises from the fact that
subsection
(g) (2) does not specifically allow,for questions,
unlike subsection
(g) (3).
If the fact that questions are not
specifically provided for leads to the conclusion that the Agency
could not participate at the second bearing, I see no reason to
find that anyone could ask questions at the second (or third)
bearings.
Subsection
(g) (2) only allows for testimony,
documents, and comments by affected entities and all other
interested parties.
Nowhere
doss
it
address
the questioning of
those giving testimony.
I do not believe that the legislature
intended
such
a result.
In
sum,
I
concur
with
the
majority’s
finding
that
the
Agency
should
answer
questions
at
the
second
hearing.
However,
I
believe that any questions directed to the Agency at the second
hearing should be strictly limited to questions on modifications
to the proposal which could not have been asked at the first
hearing.
For
these
reasons,
I
concur.
JiTheodore
eyer
Board Member
I,
Dorothy
N.
Gunn,
Clerk of the Illinois Pollution Control
Boar~,hereby certify th
the above concurring
opinion
was
filed
on
the
ZZ’~-(
day of
_______________,
1993.
~
‘Dorothy M. p)~inn,
Clerk
Illinois
Pd3/~ution Control
Board
0! 38~08514