ILLINOIS POLLUTION CONTROL BOARD
March 27, 1990
IN THE MATTER OF:
)
RACT DEFICIENCIES
-
)
R89—16
ANENDMENTS TO 35 ILL.
ADN.
)
(Rulemaking)
CODE PARTS 211
AND
215
)
ORDER OF THE
BOARD
(by J.D. Dumelle):
This matter comes before the Board upon its own motion.
On
March 16,
1990,
the Board adopted
a Proposed Opinion and Order
in
this docket.
That Opinion and Order adopted some portions of the
Agency’s proposed amendments for Second Notice submission
to the
Joint
Committee
on
Administrative
Rules
(JCAR),
and
deferred
additional consideration on other portions to a previously opened
subdocket
(B).
In that Opinion, the Board noted the relationship
between
this
rulemaking
proceeding
and the Wisconsin
v.
Reilly
settlement agreement.
Further, the Board noted its willingness to
proceed
in accordance with the timeframes set forth
in Exhibit C
of the settlement agreement, although the Board was not a party to
that
proceeding
and
was
not
directly
consulted
on
“milestone
dates.”
To date, the Board has satisfied each and every milestone
date set forth in the settlement agreement.
Subsequent
to the adoption of the Second Notice Order,
the
Board discovered
that the United States Environmental Protection
Agency (“USEPA”)
filed a motion in the United States District Court
for
the
Eastern
District
of
Wisconsin
on
March
13,
1990,
for
extension of time to promulgate the regulations that were
to be
adopted by March
18,
1990.
TJSEPA
states
in
the memorandum
in
support of its motion that the RACT rulemaking is very complex, and
raises
a
number
of
technical
and
legal
issues.
Further,
the
Affidavit of Joseph Paisie contains the following statement:
Under
the terms
of the settlement
agreement
signed by the parties and entered by the Court
in this case,
USEPA
was required to propose
as
federal
measures
certain
RACT
rules
for
Illinois by December 31, 1989.
EPA is further
obligated to promulgate
final rules by March
18,
1990
if
Illinois
fails
to meet any of
a
number
of
specified
milestones
for
promulgation
of
the
RACT
rules
as
state
measures.
See Settlement Agreement, paragraph
25(a).
Illinois has missed
a number of those
milestones for certain rules.
(Affidavit,
p.
2).
(Emphasis added.)
Based upon these and other statements, USEPA requested an extension
of time until June
8,
1990 to adopt the rules which were to have
been adopted by March 18,
1990.
io~-63~
In light of the short timefrarnes the Board was given in this
proceeding,
the Board questions what effect,
if
any,
this motion
has
or may have
upon
the
milestone
dates
of
Exhibit
C
of
the
settlement
agreement
which
relate
to
Board
actions.
In
other
words,
if
USEPA’s
motion
is
granted,
will
the
Board
also
be
allotted additional time to allow for the submission
of evidence
to
support
the proposed amendments?
The Board
today
requests
comment from persons on the notice list,
specifically the Illinois
Environmental Protection Agency and USEPA,
on this question.
The Board will withhold the filing of Second Notice with the
Joint Committee on Administrative Rules until these responses are
submitted.
The Board notes that once Second Notice is
filed the
substance
of the rule cannot be altered except
in
response to
a
JCAR question
or
suggestion.
By delaying the filing
of
Second
Notice,
the Board preserves the ability to alter the substance of
the proposal if additional time is afforded and if such alteration
is determined to be appropriate.
The Board
is also persuaded to withhold Second Notice filing
in
light
of
the
Board’s
recent experience
in R88-30,
Limits to
Gasoline Volatility.
In that proceeding USEPA stated at hearing
and
in
post-hearing
comments
that
it
supported
the
proposed
amendments, but then USEPA filed a motion to reconsider the Board’s
rulemaking,
requesting certain
language changes,
after the Board
adopted the regulation and formally filed it with the Secretary of
State.
Because those regulations specifically applied to the 1990
ozone season,
the Board was able to address the merits of USEPA’s
motion only by using emergency rulemaking methods.
The Board notes that under the current milestone dates,
the
Board
has until
May
25,
1990,
to
adopt
the
amendments
in
this
proceeding.
JCAR
possesses
45
days
in
which
to
review
Second
Notice submissions.
JCAR has not as yet scheduled its May meeting.
Thus,
the Board cannot determine by what date its Second Notice
submission must be filed.
As a result,
the Board can only count
back 45 days from May 25, 1990 to determine approximately when the
Second Notice must be filed.
Consistent with this approach,
the
Board believes
it must file Second Notice no later than April
10,
1990,
which
is
a
Tuesday.
As
a
result,
the
Board will
accept
responses to this Order which are
received
by the Board no later
than 4:30 p.m. Friday, April
6,
1990.
In
addition
to
the
question
posed
above,
the
Board
also
requests
comment
clarifying
how
in
fact
“Illinois
has missed
a
number of those milestones for certain rules”.
The Board is aware
of
no
milestone
dates
that
it
has
“missed”
pursuant
to
the
Wisconsin
settlement
agreement.
Exhibit
C
of
that
settlement
agreement sets forth the following schedule:
EXHIBIT C
Action
Deadline
Illinois EPA proposals filed
9—30—89
109—636
Illinois Pollution Control Board
decides EcIS question and
publishes first notice
12-22-89
Pollution Control Board holds
hearing and publishes second
notice
3-16-90
JCAR completes action and PCB
adopts final rule
5-25—90
Thus
far,
these milestone dates have been met.
The Agency filed
its proposal on September 29,
1990.
On October 20
(13 Ill.
Req.
16285) and 27
(13 Ill. Req. 16645),
1990, the Board published first
notice.
On October 27,
1990,
the Board decided that an Economic
Impact Study
(EcIS) would not be prepared.
Hearings were held on
December
7,
8,
14,
15,
1989
and January
19,
1990.
The
Board
adopted and published second notice on March 16,
1990.
IT IS SO ORDERED.
I,
Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
Board~hereby certify
th4t
the above
Order was adopted
on
the
_________
day
of
________________,
1990,
by
a
vote~of
/
~2.
Dorothy N.
Gu~in, Clerk,
Illinois Poi1~itionControl Board
1Th~(S37
0