ILLINOIS POLLUTION CONTROL BOARD
    October
    2,
    1980
    SHEREX CHEMICAL COMPANY, INC.,
    Petitioner,
    v.
    )
    PCB 80—66
    ENVIRONMENTAL PROTECTION AGENCY,
    Respondent.
    CONCURRING OPINION
    (by ~J.Anderson):
    I believe that the Board’s holding that a permit can be
    submitted as a State Implementation Plan
    (SIP)
    revision is the best
    that can be made under these circumstances, where an interlocking
    mechanism has become unlocked.
    Unless the SIP system itself is
    changed, however,
    the dilemma facing the Board will continue,
    to
    the benefit of none.
    The Illinois courts have ruled that the regulation in question,
    Rule 204(c)(1)(A), was improperly adopted and
    is therefore unen-
    forceable.
    A federal court has ruled that this same regulation,
    even though improperly adopted at the State
    level,
    remains a valid
    SIP provision since the Administrator had
    approved it.*
    The
    resulting inconsistency of air regulations surely cannot reflect
    Congressional
    intent.
    The SIP was designed to create an interlocking mechanism
    between the federal and state governments for consistency in
    attainment of the goals of the Clean Air Act (Air Act).
    While
    the SIP system provides unilateral flexibility for the state in
    *Rule 204(c)(1)(A) was stricken by the Illinois Supreme Court,
    applying solely state
    laws concerning procedures in Commonwealth
    Edison v.
    Pollution Control Board,
    62
    Ill.
    2d 494
    (1976), and the
    readopted rule was also stricken on state law procedural grounds
    in Ashland Chemical Company v. Pollution Control Board,
    64
    Ill.
    App.
    3d 169
    (3rd Dist.
    1978),
    and so
    is unenforceable before the
    Board or in the Illinois courts.
    In Illinois
    v.
    Commonwealth
    Edison,
    No. 78C—2675 and related No. 79C-311, Memorandum Opinion
    and Order of February 19, 1980
    (N.D.
    Ill.),
    Rule 203(g) was found
    to be a still valid, enforceable SIP provision,
    despite its earlier
    invalidation as state law.
    This decision would therefore presumably
    apply to Rule 204(c)(1)(A) as well.
    2
    some respects, such flexibility ends if the standard or limitation
    is less stringent than the SIP, whether or not it achieves the
    ambient air quality requirements of the Air Act
    (see e.g. Sec.
    116
    of the Air Act).
    The SIP system is “in place” and enforceable only
    when the USEPA Administrator approves state submitted regulations,
    such as emission controls,
    as sufficient to achieve the ambient air
    quality requirements of the Air Act.
    Subsequent changes also are
    “in place” only when approved by the Administrator.
    The two—level SIP adoption and revision system promises the
    complying state freedom from federal sanctions and the complying
    emitter consistent standards for avoiding both Fede~aland State
    enforcement actions.
    However,
    the court decisions,
    which have
    focused on one or the other but not both levels of the system,
    have highlighted flaws
    in the system as a whole.
    The federal Edison decision pinpoints the problem of “what
    to do until the doctor comes,”
    Under “normal” circumstances,
    a
    considerable time lag can ensue between the State’s proposal to
    change its SIP,
    and federal approval of that change.
    The problem
    is truly compounded when a provision has been stricken in its
    entirety at the state
    level by the state courts and yet remains
    part of the federally enforceable SIP.
    The federal Edison decision
    gives the Administrator little incentive to deal with this problem
    other than to enforce, or judiciously watch and wait,
    The state Edison and Ashland decisions pinpoint the State’s
    lack of immediate recourse.
    The Air Act does not provide the
    State with an emergency or short term correction mechanism for
    withdrawal
    of any regulation once it has become
    a SIP provision.
    Nor should the State
    ignore permit requests until the situation
    is untangled,
    when the grounds for refusing a permit no longer
    exist as state
    law, and when the emitter needs a state permit to
    operate.
    The frustration of the emitter here is,
    of course,
    understandable,
    Its permit application incorporates changes that
    appear to improve its compliance with ambient air quality; yet,
    even with a permit,
    it
    is exposed to enforcement of the regulation
    in question as long as the system stays unlocked.
    The Board cannot completely resolve this dilemma.
    It can
    only note that the goals of clean air are ill—served by an
    administrative system which operates in part to expose those
    who must comply to the classic “damned if you do, damned if you
    don’t” situation.
    The
    goals are best served by a system that is
    rational
    and, therefore, credible.
    Joan G. Anderson
    /
    /
    3
    I,
    Christan L. Moffett, Clerk of the Illinois Pollution
    Control Board, hereby~ertifythat the above Concurring Opinion
    was filed on the
    ~
    day of
    ___________________,
    1980.
    L.
    Illinois Pol
    Control Board

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