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