APPEARANCE
ILLINOIS POLLUTION CONTROL BOARD
RESPONSE TO IERG’s MOTION FOR RECONSIDERATION

R~C~VED

CL!~KtS

OFFICE

BEFORE

THE

ILLINOIS POLLUTION CONTROL

BOARD

JAN

2802

STATE

OF IWNOIS

IN THE

MATTER OF:

)

Pollution

Control Board

)

REVISIONS

TO ALNTIDEGRADATION RULES:

)

R01-13

ILL.

ADM. CODE 302.105,303.205,303.206,

)

(Rulemaking)

AND

106.990-106.995

)

NOTICE OF FILING

PLEASE

TAKE

NOTICE that I have today filed with the Office ofthe Clerk ofthe Pollution

Control Board the APPEARANCE ANDRESPONSE

THE ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

MOTIONS FOR

RECONSIDERATION

OF THE

ILLINOIS ENVIRONMENTAL REGULATORY

GROUP

AND THE

ILLINOIS ASSOCIATION OF WASTEWATER AGENCIES,

a copy

of which is herewith

served

upon you.

SEE

ATTACHED

SERVICE LIST

ENVIRONMENTAL PROTECTION AGENCY

OF THE STATE OF ILLiNOIS

Byr~QM~1~

~ML

Deborah J. Williams

Assistant Counsel

Division ofLegal Counsel

DATED:

January

17, 2002

Illinois Environmental Protection Agency

1021

North Grand Avenue East

Post Office Box

19276

Springfield, Illinois 62794-9276

(217)

782-5544

THIS

FILING

IS SUBMITTED ON RECYCLED PAPER

RECEIVED

CL~RJ~’~

OFFICE

JAN

2002

STATE

ILLINOIS

TIlE

MATTER OF:

)

Pollution Control

Board

REVISIONS

TO ANTIDEGRADATION RULES:

35 ILL. ADM. CODE 302.105,303.205, 303.206,

AND

106.990-106.995

)

APPEARANCE

The

undersigned, as

one ofits attorneys,

hereby enters

an APPEARANCE

on behalf of Respondent,

flhinois Environmental Protection Agency.

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

B~TL&~Z~kQ

Deborah J.

Williams

Assistant Counsel

Division of Legal Counsel

DATED:

January 17, 2002

Illinois

Environmental Protection Agency

1021

North Grand Avenue East

PostOffice Box

19276

Springfield,

Illinois 62794-9276

(217)782-5544

ILLINOIS POLLUTION

CONTROL BOARD

)

R01-13

)

(Rulemaking)

THIS FILING IS SUBMITTED ON RECYCLED PAPER

RECEIVED

CLERK’S

QFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

JAN

2002

STATE OF IWNOIS

iN THE

MATTER OF:

)

pollution

Control

Board

)

REVISIONS TO ANTIDEGRADATION

)

R01-13

RULES:

35 ILL. ADM. CODE

302.105,

)

(Rulemaking)

303 .205, 303 .206, AND 106.990

—

106.995

)

RESPONSE

THE

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY TO MOTIONS FOR

RECONSIDERATION

OF THE

ILLINOIS ENVIRONMENTAL REGULATORY GROUP

AND

THE

ILLINOIS ASSOCIATION OFWASTEWATER AGENCIES

The Illinois Environmental Protection Agency (“Illinois EPA”), by one ofits

attorneys, Deborah J. Williams, and

pursuant

to 35

Iii. Adm.

Code

10 1.520, hereby

responds to the motions for reconsideration ofthe Illinois Pollution Control Board’s

(“Board”) Second Notice Opinion and Order in the above captioned matter filed by

Illinois Environmental Regulatory Group (“IERG”) and Illinois Association of

Wastewater Agencies (“IAWA”), and in support thereofstates as follows:

INTRODUCTION

On August 30, 2000, the Illinois EPA filed the regulatory proposal titled

Revisions to Antidegradation Rules and docketed as RO1-13.

The Board’s First Notice

Opinion and Order was published

on June 21, 2001.

After holding anotherhearing on

August 24, 2001 in Chicago, the Board published its Second Notice Opinion and Order in

this matter on December 6, 2001.

On January 7, 2002, IERG and IAWA filed separate Motions for

Reconsideration ofthe Board’s Second Notice Opinion and Order.

On January

8, 2002, Hearing Officer Tipsord ordered responses to these

Motions for Reconsideration to

be filed at the Board’s Chicago office by January 18,

2002.

RESPONSE TO IERG’s MOTION FOR RECONSIDERATION

The Board has articulated the standard ofreview for ruling on a motion for

reconsideration as follows:

The

Board will consider factors including new evidence, or a

change in the law, to conclude that the Board’s decision was in

error.

35 Ill. Adm.

Code 101.902.

In Citizens Against Regional

Landfill v. County Board ofWhiteside (March

11,

1993), PCB

93-156, we observed that “the intended purpose of a motion for

reconsideration is to bring to the court’s attention newly

discovered evidence which was not available at the time of

hearing, changes in the law or errors in the court’s previous

application ofthe existing law.”

Korogluyan v.

Chicago Title &

Trust Co., 213 Ill. App. 3d 622, 627, 572 N.E. 2d 1154,

1158

(1st

Dist.

1992).

Broderick Teaming Company v. Illinois EPA, PCB 00-187 (June 21, 2001).

See also,

People v.

Community Landfill Company, PCB 97-193 (July 26, 2001) slip.

op. at 3.

In its Motion for Reconsideration, IERG has pointed to five aspects ofthe Board’s

Second Notice Opinion and Order it would like to see changed.

Each ofthese issues was

raised in at least one ofthe fourpublic hearings held on this proposal or in the written

comments filed with the Board.

The Board’s failure to adopt a Second Notice

rulemaking

that conforms to IERG’s wish list for an Antidegradation rulemaking is nota

basis for granting a Motion for Reconsideration.

IERG raises no new factual issues,

changes in the law, or misapplicationof existing law to justify grant ofits motion.

IERG outlines five concerns it has with the Board’s Second Notice Opinion and

Order.

The first concern IERG raises is with regard to the notice provisions contained in

the Outstanding Resource Water (“ORW”) designation process which IERG wants

expanded to include all potentially effected property owners and other citizens.

With

regard to the notice provisions,

as IERG states in its motion, IERG raised this issue prior

to issuance ofthe First Notice Opinion and during the First Notice Period.

Memorandum

in Support of 1ERG’s Motion to Reconsider (“Mem.”) at 3-4.

In its

Second Notice

Opinion, the Board considered IERG’s comments and declined to

adoptthem.

Second

Notice Opinion (“Op.”) at 11.

Second,

IERG asks the Board to reconsider its decision not to adopt IERG’s

changes to the information requirements ofORW petitions.

Mem. at 6.

As IERG states,

it has argued unsuccessfully that ORW proceedings are adjudicatory rather than

regulatory and, in the alternative, that ORW petitioners should have the burden ofproof

in support oftheir proposal.

The Board rejected these arguments in its First and

Second

Notice Opinions.

Op.~at11.

Third, IERG expresses concern that the Board failed to use the language it

proposed to clarify the activities that may lower the quality of ORWs.

Regardless ofthe

merits ofJERG’s proposed language or the support it had from environmental groups, the

Board considered the proposal and declined to adopt it in its Second Notice Opinion and

Order.

Op. at

5-6,

19.

Fourth,

in post-hearing comments, IERG asked the Board to make changes to the

language establishing when an antidegradation review is triggered.

Mem.

13.

Again,

the Board considered and rejected IERG’s proposal on this issue as unnecessary.

Op. at

6, 20.

Finally, IERG reiterated its objection to the approach taken by the Board in its

First Notice Opinion and Order regarding “waters ofparticular biological significance.”

Mem.

at 14.

Again, IERG admits itraised its

objection to this concept in fourpages of

post-hearing comments.

Id.

IERG also objects to the changes that were made by the

Board in its Second Notice Opinion and Order in response to these comments.

Mem. at

15.

The Board’s failure to adopt IERG’s proposal in its Second Notice Opinion is not a

basis forthe Board to reconsider that opinion at this time.

Op. at

Like IERG, the Illinois EPA disagrees with the Board’s decision to reject some of

Illinois EPA’s

proposed changes to the First Notice version ofthis rulemaking, but that is

not a basis to reconsider the Second Notice Opinion and Order.

RESPONSE TO

IAWA’s MOTION FOR

RECONSIDERATION

IAWA’s Motion for Reconsideration incorporates the arguments raised by

IERG’s motion and includes one additional legal argument.

IAWA argues that the Board

must withdraw its Second Notice Opinion and Order because the Department of

Commerce and Community Affairs (“DCCA”) did not perform an economic impact

study.

IAWA states that that there is no dispute that this rulemaking has not been

certified as a federally mandated rule making.

Motion for Reconsideration at ¶4.

“required rule” is defined in Section 28(a) ofthe Environmental Protection Act (“Act”) as

“a rule that is needed to meet the requirements ofthe federal Clean Water Act, Safe

Drinking Water Act, Clean Air Act (including required submission of a State

Implementation Plan), or Resource Conservation and Recovery Act, other than a rule

required to be

adopted under subsection (c) ofSection

13,

Section 13.3,

Section

17.5,

subsection (a) or (d) of Section 22.4, or subsection (a) ofSection 22.7, or subsection (a)

of Section 22.40.”

415 ILCS 5/28(a)(2000).

When the Illinois EPA files a rulemakingproposal

that it believes to contain a

requiredrule, Section 28.2(b) ofthe Act provides that “the Agency shall so certify in its

proposal, identifying the federal law to which theproposed rule will respond and the

rationale upon which the certification is based.”

415 ILCS

5/28.2(b)(2000).

Under the

Board’s procedural rules that were in effect prior to January

1, 2001, no specific format

was established for certifying the Illinois EPA’s position that a rulemaking was federally

required.

The Illinois EPA was simply required, under former Section 102.121(e) to cite

to the specific section ofthe specific federal act.1

In its Statement ofReasons, the Illinois

EPA did identify provisions in the Clean Water Act that require an antidegradation

program.

Statement ofReasons, pages

—3 (Statutory Basis).

No formal fmding was

ever made by the Board that the proposed changes to the existing antidegradation

program regulations were or were not federally required.

The Act further provides that

the Board shall either accept orreject the Illinois EPA’s certification within 45 days and

“ifthe Board fails to act within the requisite 45

day period, the certification shall be

deemed granted.” 415 ILCS

5/28.2(b).

Even assuming that the regulatory proposal is not a federally required one, the

Board has met all ofthe procedural requirements ofthe Act regarding an economic

impact analysis.

IAWA incorrectly states both that no economic impact analysis has

1The Board’s

new

procedural rules more clearly

identify

the manner in which the Illinois

EPA

expected to

certify that

a rulemaking proposal is federally

required.

See,

Ill. Adni.

Code

102.202(g).

With

the new section

102.502,

the Board also provides clear procedures for challenges to the Illinois

EPA’s

certification.

been done and that one is required because this

is not

a federally required rulemaking.

Instead, Section 27(b) ofthe Act provides, in relevant part:

Except as provided below and in Section 28.2, before the

adoption ofany proposed rules not relating to administrative

procedures withinthe Agency or the Board, the Board shall:

(1)

request thatthe Department of Commerce and Community

Affairs conduct a study ofthe economic impact ofthe proposed

rules.

The Department may within 30 to 45 days of such request

produce a study ofthe economic impact ofthe proposed rules...

and

(2) conduct at least one public hearing on the economic

impact ofthose new rules.

At least20 days before the hearing,

the Board shall notify the public ofthe hearing and make the

economic impact study, or the Department of Commerce and

Community Affair’s explanation for not producing an economic

impact study, available to the public.

Such public hearing may

be held simultaneously or as a part ofany Board hearing

considering such new rules.

In adopting any such newrule, the Board shall, in its written

opinion, make a determination, based upon the evidence in the

public hearihg record, including but not limited to the economic

impact study, as to whether the proposed rule has any adverse

economic impact on the people ofthe State ofIllinois.

415 ILCS 5/27(b).

The Board met its requirement to provide a hearing on the economic impact of

this rulemaking proposal and to provide, in its written opinion, a determination whether

the proposed rule has any adverse economic impact on the State ofIllinois.

IAWA seems

to conclude that since no economic impact study was performed by DCCA in this case,

that this requirement has not been met.

The Board met its requirement to ask for such a

study to

be conducted and DCCA declined (as it has done consistently since this

requirement was established) and the Board also made available DCCA’s explanation for

not producing such a study.

The Board can not be blamed for DCCA’s failure to perform

such a study in this case.

In addition, the Act provides DCCA the discretion to determine

whether or not to perform and economic impact study.

WHEREFORE the reasons stated above, the proponent ofthis rulemaking

proposal, Illinois Environmental Protection Agency, respectfully requests that the

Motions for Reconsideration filed by Illinois Environmental Regulatory Group and

Illinois Association of WastewaterAgencies be denied.

Respectfully Submitted,

ILLINOIS ENVIRONMENTAL

PROT

CTION AGENCY

Assistant Counsel

Division ofLegal Counsel

DATED:

January

17, 2002

1021

N. Grand Ave. East

P.O. Box

19276

Springfield, Illinois 62794-9276

(217)

782-5544

)

STATE OF ILLINOIS

)

COUNTY OF SANGAMON

)

PROOF OF SERVICE

I, the

undersigned, on oath

state that I have served the attached APPEARANCE AND RESPONSE upon the

person to whom it is

directed,

by placing a copy in an envelope addressed to:

SEE

ATTACHED SERVICE

LIST

and

mailing it from Springfield, Illinois

on January

17,

2002

with

sufficient postage

affixed as indicated.

SUBSCRIBED AND SWORN TO BEFORE ME

this 17” day of January 2002.

C~AL~

flHENO~T

Notary

Public

Notary

PubUc~State of4flinois

j~Corn~sionll/l6JO2~

THIS

FILING IS

SUBMITTED ON RECYCLED PAPER

SERVICE LIST

R01-13

JANUARY 17, 2002

Dorothy Gunn,Clerk

Illinois Pollution Control Board

James R.

Thompson Center

100

West Randolph,

Suite

11-500

Chicago, Illinois

60601

(OVERNIGHT MAIL)

Marie

Tipsord,

Attorney

Illinois Pollution Control Board

James R. Thompson Center

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