ILLINOIS POLLUTION CONTROL BOARD

July

7, 1977

IN THE MATTER OF:

)

)

P31—23

EMISSION STANDARDS

)

DISSENTING OPINION

(by Mr.

Young):

I must dissent

from

the

action

of

the Board on July

7,

1977,

to “validate”

Rules

203 (g) (1)

,

204 (a) (1)

and 204 (c) (1) (A)

despite the excellent opinion of Mr.

Goodman,

David P. Currie,

former Pollution Control Board Chairman, has written “We should

be

alert

to ~improve regulations

when we obtain better knowledge,

but it would be the height of folly to do nothing until we knew

everything

-

for it seems likely that we would do ourselves

enormous and unjustified harm while waiting.”l

I believe it is

in the spirit expressed by Professor Currie that the Board took

action to reprornulgate the remanded regulation; unfortunately,

I believe that the route chosen will result in delaying the

establishment of valid regulations rather than expediting that

result.

Because

a contrary inference

might

be drawn from that

which follows,

it

should be understood that

I am in complete

agreement with Professor

Currie~s

conclusion.

It

is

my

judgment

that

in

repromulgating these remanded

regulations,

the Board was obligated

to

follow the statutory

and procedural requirements for

the

adoption of regulations,

specifically, Sections

6 and 27(b)

of

the Act and Rule 214 of

the Board’s Procedural Rules, which require an economic impact

study and economic impact hearings prior

to adopfion.

The action of the Board on

a

remand

is controlled by the

remanding order and opinion

(Roggenbuck v. Brehaus

(1928)

161

N.E.

780,

330 Ill.

294) and

it

is incumbent upon the Board to

examine the remanding opinion and

to proceed in conformity

with the views expressed therein, including

a determination of

the necessity for additional hearinqs and proper further pro-

ceedings

(Roggenbuck; NLRB

v. Donnelly

Garment Co.

(1947)

330

US

219,

67

S.

Ct.

40).

After remand,

further proceedings are

clearly a continuation of the prior proceedings

(Fry Roofing

Co.

v.

PCB

(1977)

361 N.E.2d 412,

46

Ill.App.3rd 412)

and are

1.

Currie,

D. P.,

“Rulemaking Under the Illinois

Pollution

Law”

42

University of Chicago Law Review

457

(1975).

---

—2—

governed by the Environmental Protection Act and the Board’s

rules and regulations.

While a remand to an administrative

board by a reviewing court does not require

a trial de novo

(McCaffery v.

Civil Service Board

(1955)

129 N.E.2d

257,

7

Ill.

App.2d 164), the administrative board must proceed after remand

in accordance with statutory requirements (~~Ford Motor

Company v. NLRB

(1938)

305 US 364,

59

S. Ct.

301).

The statutory requirements against which this action of

the Board would be reviewed include the amendments to Sections

6 and 27 of the Environmental Protection Act added by Public

Act 79-790 effective October

1, 1975.

A reviewing court would

be obliged to dispose of the appeal under the law in force when

the decision of the reviewing court was rendered

(People ex rel.

Eitel

v. Lindheimer

(1939)

21 N.E.2d

318,

371 Iii.

367; Dolan

v. Whitney

(1952)

109 N.E.2d 198,

413 Ill.

274).

The recitals contained in Senate Bill

805, which set forth

the reasons upon which the statutory enactment

(PA 79-790) was

founded, stated that proposed regulations were pending before

the Board and that the economic and social costs of any new

regulation must be weighed against the environmental health and

welfare benefits of such regulation.

It is clear that the

General Assembly intended that the economic impact study and

hearing requirements of PA 79-790 apply to all new regulations

of the Board adopted after October

1,

1975, including 203(g) (1),

204 (a) (1)

and 204 (c) (1) (A)

Rule 214 of the Board’s Procedural Rules requires hearings

on the Economic Impact Study before the final adoption of any

proposed regulations and the Board

is required to follow its

own Procedural Rules

(Margolin v. Public Mutual Fire Insurance

Co.

(1972)

281 N.E.2d 728,

4 Ill.App.3rd

661; Berwyn Savings

& Loan Association v. Illinois Savings

& Loan Board

(1975)

331

N.E.2d

254,

29 Ill.App.3rd 965).

The fact that the Board did

not do so would be sufficient,

in my judgment,

for a further

remand for the economic impact study and hearings, and

I cannot

agree to the adoption of Rules

203(q) (1),

204(a) (1) and 204(c)

(l)(A)

until

the requirements of Section 27(b)

of the Act and

Rule 214 of the Board’s Rules have been fulfilled.

The Board has received a number of comments following an

announced intention on May 12, 1977,

to re-adopt the remanded

regulations;

a Motion for Hearing and Preparation of Economic

Impact Study was also filed.

Both the comments and Motion

generally protest the “validation” of the remanded regulations

both for failure to comply with Section 27(b)

of the Act and

the Board’s Procedural Rules relating to the economic study and

economic hearing requirements and for failure to hold additional

substantive hearings to receive new or amplifying evidence en-

---

compassing virtually the entire spe~tr

~ra~ions ger—

maine to the

regulation

of

SO2

and

nartictli

uding,

for

example,

an analysis

of

ambient

air

qua

i~y

:

ru

be

prepared

“within a matter of weeks.

Much of

the

material

~esen~d

i~.

~u~cs

may

be

dismissed on

the

basis

that it constit

~

anpiied”

argument which was

rejected by the Fir~

-

~

~oe~1ate

Court as

a valid

challenge to the ~Lp~

u

ieral regu-

lation

in

Commonwealth

Edison_Com~ar”v

cc Control Board

(1974)

25 Ill,App.3rd

271;

323 N,E,2d ~4

~c

—s ~

and 90.

I am unable to

agree with the co

te

~c.v

ed that even

if the Board had

complied with the p~is

~ ~3ctior

27(b)

and Rule 214,

additional substantive he-~ c

~

d. have been

required und~erthe remand before

the

r~cwuit

3

c~1d cc

validly adopted.

I believe that

the record

in R~ ~23

~

2

c~ic~

R15~-5con~

tam

more than

sufficient legislat:ve

ac~ c.

h~c~regulations

establishing limitations

on oarL~cciate

&i

ifur dioxide

emissions in Illinois could

be predicate

~ei1 CiL~2~~v.

Pollution Control Board

(1976)

37

Ann 3r~2o~ ~46 N.E,2d 212).

I do not believe

that the Act o:

LhC

~

nandate continuing

rounds

of regulatory

hearings

or

thr

p

rev

c~-cbno1ogy

or better data just over

the horizon or

a~.

T

~P.ec rner before

the Board can take regulatory actior

t

~t

t)-~enublic health

and welfare.

To

hold

otherwise woulo esc~i

.eeouirement

for a circularity of

hearings, appeai~ :ni

~e ad infinitum.

Virtually all of the

regulatory pro osat

~reC

by the Board

present varying degrees

of technologica~

ca

und scientific

uncertainty in a

climate

of

ever expondt

r~ ~ ~cay, medical and

scientific knowledge

which by its na nrc

I ~

~y introduces

further

uncertainty

even

when

resolvIng

o~

~

t~i

ing

previous

questions.

To

adopt

an all or nothing appccnc~ tu environmental

regulations

would

surely

be

logically ha’kr~pt

The question

of the adequacy of the mccii

ru P71-23

to

support the remanded

regulations j&~ccd

L7

~

~st D~strict

Appellate Court

is most ably ~

e cow ~rt on that

opinion by David

P.

Currie,

former Che~r~aa~f

~n Pollution

Control Board, and

currently Professor o~

~yi

h-s University

of Chicago,

in

42

U.

Chicago L.

H.

451

pag~s 5

to 505 and by

the Fifth District

Appellate Court in thcr

ShcI)

opinion~. Reading

the

Shell

opinion

in conjunction with

:he

3uprenc Court opinion

in Commonwealth,

I do not believe that

it

Ic

necessary to devote

much time or space to a discussion of

bho o3es~ionof whether or

not

the Board complied

with the mandate of the Fi~stDistrict

before

reproinulgating

the

regulations.

---

—4—

If the function of the present Board in this matter was

merely to sit in appellate review following the rules established

by the Fifth District in Shell and the Supreme Court in Illinois

Coal Operators Association

v.

Pollution Control Board

(1974)

59 Ill.2d 305, and Monsanto Company v. Pollution Control Board

(1977) Docket 48748

______

N.E.2d

______,

tional record taken in R74-2 and R75-5,

easy;

I would affirm.

However,

tions for the pollutants and class of sources here,

is,

whether or not the emission limitations adopted are those necessary

to attain and maintain the National

(and the Board’s)

Ambient

Air

Quality Standards and,

second,

that any emission limitation more

stringent than necessary to protect the public health and welfare

is solidly based and economically justified.

I am fully aware

of the extreme difficulty in establishing an exact relationship

between emission limitations and ambient air quality, however,

I believe the Board suffers here from the legacy of prior appli-

cation of what was, or was rapidly becoming, a stale data base

used to set emission limitations

to ensure compliance with state

and federal secondary sulfur dioxide ambient air quality standards

subsequently repealed.

Irrespective of the final disposition of P31-23 by this Board

or the Courts,

a thorough review of the sulfur dioxide emission

limitations must be undertaken as soon as a new data base has

been developed which contains

a current accurate emission source

inventory and includes actual ambient air quality monitoring

information through at least 1976.

Fortunately,

a review of the

1976 Illinois Annual Air Quality Report does not indicate a S02

ambient air quality problem considering the applicable primary

and secondary air quality standards

as

the

point of departure.

I would hope in the next iteration that what has been learned

and observed since the data in R7l-23 was taken will be spread

upon the record sufficient to establish a more thorough under-

standing of the relationship between SO2 emissions as they relate

to the attainment and maintenance of ambient air quality standards

and thereby allow the Board

to establish these emission limitations

with the greater precision made possible by a current and more

comprehensive data base.

---

I, Christan

L.

Moffett,

Clerk

of

the

Illinois

Pollution

Control

Board,

hereby certify

the

above

Dissenting

Opinion

was

submitted

to

me

on

the

~

day

of

1977,

Illinois Pollution

Board