ILLINOIS POLLUTION CONTROL BOARD
October
27,
1989
IN THE MATTER OF:
)
~CT
DEFICIENCIES
-
ARENDMENTS
)
TO
35 ILL. ADM.
CODE
201,
211
)
R89—16
AND 215.
)
(Rulemaking)
Order of the Board
(by J.D.
Dumelle):
On October
5,
1989,
the Board
adopted
an Opinion and Order
sending
the
Illinois
Environmental Protection
Agency’s
(Agency)
proposed amendments
to
35
Ill.
Adm.
Code
201,
211,
and 215
for
First Notice.
In that Opinion, the Board noted that these proposed
amendments
were
filed
in
response
to
a
settlement
agreement
submitted
in the lawsuit
of Wisconsin
V.
Reilly.
The Board noted
that
in
order
to
achieve
the
goal
of
state
adoption
of
the
amendments
by
May
25,
1990,
the
Board
would
proceed
under
a
tentative schedule set forth on the October 5 Order, which included
a date for a special Board meeting to determine whether an economic
impact study should be prepared.
Proper notice having been given
for today’s special meeting,
the Board hereby determines that an
economic impact study should not be prepared.
As a preliminary matter, the Board notes that in its proposal,
the Agency certified that the proposed amendments met the “required
rule” definition
contained
in
Section
28.2
of the Environmental
Protection Act
(Act).
Section 28.2(c)
states in pertinent part:
Within
21
days
of
the
date
that
the
Board
accepts for hearing a proposal for a required
rule,
any
person
may
request
the
Board
to
determine that an economic impact study should
be prepared
or that an economic impact study
should not be prepared.
Such request shall be
made to the Board in writing and shall detail
the
reasons
for
the request.
***
Within
60
days
of the date that the Board accepts
for
hearing
a proposal
for a required rule,
the
Board
shall
determine
whether
an
economic
impact study should be conducted.
The Board
shall
reach
its
decision
based
on
its
assessment of the potential economic impact of
the rule,
the potential
for consideration of
the economic impact absent such
a study,
the
extent,
if
any,
to
which
the Board
is
free
under
the
statute
authorizing
the
rule
to
modify the substance of
the rule
based upon
the consideration the Board deems appropriate.
The Board may identify specific issues to be
addressed in the study.
1fl4
6’~)1.
2
Two public comments were filed within 21 days of the date that
the Board accepted the proposal.
On October 19,
1989,
the Agency
filed a motion regarding an economic impact study.
In its motion,
the Agency moves the Board not to conduct an economic impact study
(EelS)
in this proceeding.
Regarding the assessment of potential
economic impact,
the Agency states that this
a unique situation.
The Agency argues that:
the
proposed rules may be promulgated by the
Board
or
the
United
States
Environmental
Protection
Agency
(USEPA)
as
part
of
the
Federal
Implementation
Plan,
or
both.
One
thing is relatively certain, these rules will
be
codified
in
either the
state
or
federal
regulatory systems,
if not both,
and emission
sources
will
be
required
to
come
into
compliance.
The economic impact will result
whether
or
not
the
Board
acts
on
this
proposal.
The question remains,
however,
as
to the timing of promulgation and the economic
impact of an earlier adoption
by the Board.
*
*
*
Several scenarios regarding timing can be
envisioned.
If
the
Settlement
Agreement
is
not
accepted
by
the
District
Court,
these
corrections will
be promulgated
by USEPA
by
March 18, 1990.
Shortly after that time, they
may be promulgated by the Board
as well.
If
the Settlement
Agreement
is
accepted
by the
District
Court,
the Board
has until
May
25,
1990
to
promuiqate
thr~se
rules
so as to
avoid
thy n~ec1for
federal
rule~uaJ~~ncj
in the
even
~
of the Board’s failure to meet the schedule in
Exhibit
C
of
the Settlement Agreement,
USEPA
will promulgate them by March 18,
1990, or six
months
after
any
failure,
but
in
no
event
later
than
December
31,
1990.
Therefore,
under
all
circumstances,
the
Board’s
promulgation will
only be
a maximum
of seven
months
before
the
final
date
of
USEPA
promulgation
(December
31,
1990)
*
*
*
The Agency points out that the potential
economic impact of an earlier adoption of the
rule
(a maximum
of
seven
months)
is
slight.
Variance proceedings are available to emission
sources
with
extreme
economic
or
technical
hardships.
The
most
compelling
argument,
horever,
is the very limited degree to which
the
Board
can
modify
the
substance
of
the
proposed rules.
Any change,
however
slight,
to
the
content
of
the
proposed
rules
could
1
r~
—
3
render
them
unapprovable
by USEPA.
In
sum,
the guidance presented
in Section
28.2(c)
of
the Act does not compel the Board
to conduct
an EcIS.
On October
23,
1989,
the Illinois Department
of
Energy
and
Natural
Resources
(DENR)
submitted
its
comments
on
the
appropriateness of an EcIS.
DENR also believes that a formal EelS
is not appropriate for this proceeding.
Noting that the Board, the
Agency,
and DENR
are all equally
constrained
by the
settlement
agreement
schedule,
DENR states that
it
wishes
to underilne the
extraordinary nature
of the agreement and this docket.
Further,
DENR points out that the Act permits
6 months for DENR to perform
an EcIS ordered by the Board.
It
is DENR’s considered
judgment,
consistent with legislative intent,
that
6 months
is the absolute
minimum
necessary
to
provide
the
Board
with any
credible
EcIS.
DENR argues that the Board cannot and will not be well served by
ordering
a
two month
EcIS,
which
would
be
needed
to
meet
the
settlement
agreement
schedule,
on
such
a crucial
matter.
DENR
contends that the Board can and will be better served by looking
to the numerous scheduled merit hearings to provide
any relevant
economic information which may be lacking in the Board’s voluminous
RACT proceedings’ files.
Finally, DENR encourages all participants
to make every effort to provide all information necessary for their
economic case.
Pursuant to Section 28.2(c)
of the Act, the Board determines
that an
EelS
should not be
conducted.
First,
while
it
is
the
Board’s assessment, at this point, that the proposed amendments may
result
in
an
economic
impact
on
some portion
of
the
regulated
community, the Board firmly believes that there
is ample potential
for consideration of the economic impact absent such
a study.
The
Board
notes
that
hearings
have
been
scheduled
and noticed
for
December 7,
8,
14, and 15,
1989.
The Board believes that four days
of
hearing
are
more
than
enough
to
permit
submission
of
information, which includes economic information.
However, if four
days is not enough,
the Board has directed its hearing officer to
continue the hearing on a day to day basis as needed.
Further, the
Board agrees with tha commenters
that much of the subject matter
involved in these proposed amendments has been the subject of prior
Board ruleinakings in which economic impact studies were prepared.
Portions
of
those
existing
studies
may
be
relevant
to
this
rulemaking.
Participants
are encouraged to
submit
information,
with specific reference
to supporting materials
in the existing
studies, of the economic effect the proposed amendments may or will
have.
Also, the Board notes that there is some merit in the Agency’s
argument that the economic impact
in issue
is that caused by the
Board’s adoption of the amendments before USEPA adopts them.
The
Board agrees that when faced with certain adoption of the same or
similar rules by the USEPA, the economic impact of
a Board adopted
104-6fl3
4
regulation appears to be minimized.
However, the Board notes that
USEPA also has certain procedural requirements which it must follow
in its rulemaking processes and that it is one thing for USEPA to
say what it may require by regulation and another thing for USEPA
to
complete
the
rulemaking
process
with
a
regulation
at
final
adoption that
is the same as that proposed.
In other words, the
Board,
as
any
rulemaking
agency,
is
aware
that
any
up—front
assertion
as to what may be required by a future regulation may
well be adjusted after going through the rigors of the rulemaking
process.
Thus,
the Board must note that the Agency’s
argument,
although attractive,
is somewhat speculative as well.
Finally,
the
Board
takes
under
advisement
the
Agency’s
position that there is a very limited degree to which the Board can
modify the substance of the rule based upon the conclusions of such
a study,
if one were to be done.
The Board notes that while USEPA
has stated
in
its comments that
if the Board adopts the proposed
amendments as written
it
intends to approve the regulations as a
SIP
revision,
USEPA
has
not
stated
that
any
other
version,
determined to be appropriate by the Board, would be unapprovable.
Also,
the Board
notes that
this
is
one
of the
first
rulemaking
proceedings in which the Board is acting under Section 28.2 of the
Act.
As such,
the Board notes that it is one of the first times
that the interrelationship,
if any, between Sections 28.2 and
27
of
the
Act
is
raised.
The
Board
notes
that
the
Section
27
requirement that the Board consider the “technical feasibility and
economic reasonableness”
in
adopting regulations may or may not
apply in the context of a Section 28.2 “required rule” rulemaking.
If
it
does
apply
and
if
the
“required
rule”
as
proposed
is
determined
to
result
in
unreasonable
economic
impact,
must the
Board
either
modify
the
substance
of
the
rule
to
become
econemleal
1y
re
~onable
or
decline
to
proceed
with
the
rulemaking?
The
Board
specifically
requests
comment
on
this
issue
during
this
proceeding.
For all of the foregoing reasons, the Board determines that
DENR should not prepare an EelS
in this proceeding.
However,
in
light of the relationship of this proposal to the Wisconsin lawsuit
and the short time frame involved, the Board specifically requests
DENR
to remain
an active participant and to
submit any economic
information
that
it
may have
available
or that
it
can
acquire
during the hearing process,
such
information to
include economic
impact studies, or relevant portions thereof, prepared in previous
rulemaking proceedings.
IT
IS
SO ORDEREI).
i~r~!~
(~‘~!.
5
I,
Dorothy N.
Gunn,
Clerk of
the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was adopted
on
th~
_________
day of
~
,
1989, bya vote of
/
Dorothy
M. Gunn,
Clerk,
Illinois Pollution Control Board
104
605