ILLINOIS POLLUTION CONTROL BOARD

September

8,

1988

ALTON PACKAGING CORPORATION,

Petitioner,

v.

)

PCB 83—55

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

Respondent.

ORDER OF THE BOARD

(by

R.

C.

Flemal):

This matter comes before

the Board upon a Motion

in Limine

filed August 31,

1988 by Alton Packaging Corporation

(“Alton”).

Alton requests that the Board

limit

the issues that may be

presented

at hearing,

and that the Illinois Environmental

Protection Agency (“Agency”)

be barred from presenting economic

information.

The Agency filed

its response

in opposition

to

Alton’s motion on September

7,

1988.

Alton claims that the sole issue here

is whether Alton has

adequately demonstrated, according

to the requirements of 35

Ill.

Adm. Code 214.201, that sulfur dioxide emissions from the Alton

Mill under

the proposed adjusted standard will not cause or

contribute

to ambient air quality violations.

Alton requests

that the Agency therefore be barred from presenting any economic

information as irrelevant

to the proceeding.

The Agency argues

that

it

is the Board’s duty to make environmental policy

decisions and that exclusion of economic information would

foreclose consideration of evidence necessary for such

determinations.

Central

to the matter

at hand are two portions of the

Illinois Environmental Protection Act

(“Act”), Sections 28.1 and

27(a)

(Ill.Rev.

Stat.

1987,

ch.

1111/2, par.

1028.1

and 1027(a)).

In pertinent part Section 28.1 reads

(emphasis added):

In adopting

a regulation of general applicability,

the Board may provide for the subsequent

determination of

an adjusted standard for persons who

can justify such an adjustment consistent with

subsection

(a)

of Section 27 of this Act

...

The

rule—making provisions of the Illinois Administrative

Procedure Act and Title VII

of this Act shall not

apply

to such subsequent determinations.

In pertinent part,

Section 27(a)

reads

(emphasis added):

92—03

---

—2—

In promulgating regulations

under this Act,

the Board

shall take into account

...

the technical feasibility

and economic reasonableness of measuring or reducing

the particular type of pollution.

Taken together,

these two sections mandate that the Board

make adjusted standards determinations consistent with the

economic reasonableness

(among other matters)

of the proposed

adjustment.

Therefore,

the entry of economic information into

the record

of an adjusted standards proceeding

is not only

permissible,

it

is a prerequisite of

a successful petition.

Moreover,

the Board notes

that

it

is the responsibility of the

person who requests

the adjusted standard

to assure that economic

information sufficient

for the Board

to make

its

is determination

is entered

into the record.

For

these reasons,

the Board cannot

generally bar the submission of economic information, and

accordingly Alton’s motion

is denied.

In support of its claim,

Alton emphasizes

that since Section

28.1 states that the rulemaking provisions

of the Illinois

Administrative Procedure Act (“APA”)

and Title VII

(of which both

Sections

27 and

28 are part)

do not apply,

economic information,

particularly regarding economic hardship,

should not be

considered.

The Agency states

and the Board agrees that Section

28.1 by its terms specifically allows adjusted standard

determinations

to be made without utilization of the regular

rulemaking procedures contained

in Title VII

of the Act or those

of the APA.

This

is not only clear

from the juxtaposition of

the

the APA (which deals solely with procedures)

and Title VII

references,

but also from the absurdity which would follow under

the construction that nothing

in Title VII applies

to Section

28

considerations where Section

28

is itself part

of Title VII.

In denying Alton’s motion the Board notes

that it

is not

finding that Section 28.1 authorizes

a reexamination of the

general rulemaking

factors considered by the Board when it

adopted the general sulfur dioxide standards;

•neither does

Section 28.1 provide for

a determination regarding arbitrary or

unreasonable hardship necessary

for variance proceedings.

IT IS SO ORDERED.

I,

Dorothy M.

Gunn,

Clerk

of the Illinois Pollution Control

Board, hereby certif

that the above Order was adopted on

the

~

day

of

__________________,

1988,

by

a vote of

~

Dorothy M. ~unn, Clerk

Illinois Pq’llution Control Board

92—04