ILLINOIS POLLUTION CONTROL BOARD
September 15,
1994
IN THE MATTER OF:
)
PROPOSED AMENDMENTS TO
)
R92-8
35 ILL. ADM. CODE SUBTITLE C
)
(Rulemaking)
(WATER TOXICS
& BIOACCUMULATION)
)
ORDER OF THE BOARD
(by R.
C.
Flemal):
Consistent with the Board’s order of May 5,
1994,
a hearing
officer and notice of hearing dated September 1,
1994 scheduled
the resumption of hearings in this matter to begin on September
28,
1994.
The notice of hearing stated:
We will continue consideration of the regulatory proposal
made July 21,
1992,
as amended June 25,
1993, by the
Illinois Chapter of the Sierra Club, Citizens for a Better
Environment, Lake Michigan Federation and the McHenry County
Defenders proponents).
As further explained in the
attached hearing officer order, establishing prefiling
requirements, additional hearing dates will be scheduled to
receive testimony from other persons in response to the
proposal.
The proponents intend to present the following
testimony:
Daniel
T. McGrath
-
Economic Testimony prefiled on
April
11,
1994:
“An Analysis of Impacts to the State of
Illinois Regional Economy Related to Proposed Water
Toxic Rules Proposal R92—8”
Greg T. Lindsay
-
Technical Feasibility Testimony
prefiled on June 15,
1994:
“Testimony on Proposed
Amendments.
.
On September 9,
1994,
the Illinois Environmental Regulatory
Group
(IERG)
filed a motion for continuance of the hearing “for a
minimum of 90 days”.
The proponents filed a response in
opposition on September 14,
1994.
Motions in support of IERG’s
request for continuance were filed on September 14,
1994 by the
Chemical Industry Council of Illinois (CICI), the Illinois
Fertilizer and Chemical Association
(IFCA), and the Illinois
Steel Group
(ISG).
On September 12,
1994,
the Illinois
Environmental Protection Agency
(Agency)
filed a statement that:
The Agency would be prepared to proceed with resumption of
hearings on September 28—29,
1994 if the Board elects to do
so.
However, the Agency also does not specifically object
to a continuance of the hearings if the Board determines
that IERG’s position as set forth in their motion for
continuance is meritorious.
2
The Motion to Continue
In support of its motion for continuance, IERG asserts that
it will be “materially prejudiced”
if the economic and technical
feasibility hearings scheduled are conducted on September 28,
1994, on the grounds that “IERG will be unable to retain an
expert to review the pre-filed testimony and to prepare
meaningful questions for submittal to the Board by the September
21,
1994 deadline for
prefiling of questions established in the
September
1 hearing officer order)”.
IERG states that it had not
retained a consultant immediately after its receipt of the
prefiled testimonies in April and June of 1994,
in reliance on
the Board’s order of May 5,
1994 indicating that the proceedings
in this matter might be deferred to address other deadline-driven
proceedings
‘
IERG further argues that its delay in expending
significant time and resources in retaining an expert was
justified given “the extended time period during which formal
proceedings in this matter were inactive” at proponents’ request
(IERG Motion,
# 16; See order of May 5,
1994 setting forth some
history of this rulemaking).
Lastly,
IERG argues that:
IERG does not believe that the scheduling of technical
feasibility and economic testimony hearings in support of
the amended proposal is appropriate at this juncture.
IERG
asserts that, based upon the Board’s procedural rules at 35
Ill. Adm. Code Parts 101 and 102, the proceedings in this
matter should progress differently.
IERG, together with
other participants from the business community,
is preparing
a motion for Board consideration, suggesting an alternate
progression of the proceedings.
IERG is attempting to
achieve a consensus with the business community as to the
nature of the motion prior to its anticipated filing in the
near future.
(IERG Motion,
#18).
CICI reiterates IERG’s motion,
as does the statement by
IFCA.
IFCA additionally asserts, however,
its belief that this
proceeding should resume with testimony by the proponents
in
support of its June 25,
1993 amended petition prior to beginning
testimony concerning economic reasonableness and technical
feasibility.
(IFCA Statement,
#
2).
The Steel Group filing also
concurs with IERG’s filing and states its belief that economic
hearings are not justified at this time.
(ISG Motion,
#
3).
As outlined on pp 2-3 of the May 5,
1994 order,
those
rulemakings including various anticipated Clean Air Act
rulemakings pursuant to Section 28.5 of the Act, R94-2
Underground Storage Tank rules adopted as final today,
R93-29
Landscape Waste Compost rules adopted for second notice today,
and R94—l Ammonia, Nitrogen,
Lead, and Mercury rules adopted for
first notice today.
3
The Joint Proponents Response
The joint proponents request that the hearings continue as
scheduled.
In response to IERG’s allegations of prejudice,
the
joint proponents assert that the preparation of meaningful
questions should not be difficult because IERG has already
submitted a lengthy set of questions, including economic
questions in the Record;
IERG’s members have many professional
competencies and expertise;
IERG has actively participated
throughout the informal and formal hearings on this matter; and
IERG has had five and three months of time since receiving the
pre-filed economic testimony of Mr. McGrath and Dr.
Lindsay,
respectively.
The September 28 and 29 scheduled hearing does not
prevent IERG from presenting the testimony of additional experts
at a later time, nor do the scheduled hearings prevent IERG from
presenting an alternative proposal, subject in both cases to the
Board’s procedural regulations and scheduling priorities.
The joint proponents allege that continuance of hearing
would materially prejudice them and the contractual relationships
which they have established with Mr. McGrath and Dr. Lindsay.
The joint proponents note that they have already had to extend
their contracts with these individuals due to the Board’s initial
delay in resuming hearings.
Joint proponents also note that their consultants have
university teaching commitments which have been restructured to
accommodate the present hearing schedule.
In summary, the joint
proponents believe that they should be allowed to present their
testimony in response to pre—filed economic questions, and to
finish the presentation of their rule proposal.
Board Conclusion
The motion for continuance
is denied.
The Board is not
persuaded that material prejudice will result from going forward
with the scheduled hearings.
Prior to the suspension of the
hearings in this matter, IERG had already identified
(and pre-
filed) many economic questions which they have requested be
answered.
Furthermore, IERG is not being required to present
testimony on September 28—29, but instead to consider testimonies
whose content has been known to them since April and June,
respectively.
While the movants for continuance may not be as well
prepared as they might like to question proponents witnesses on
September 28,
any harm to them is outweighed by the harm asserted
by joint proponents:
inability to complete presentation of their
regulatory proposal due to lack of resources to allow for an
additional contract extension.
The joint proponents have a right
to proceed; any deficiencies in their presentation may be brought
to the Board’s attention by other participants at this and future
4
hearings.
Board Member
E. Dunham dissented.
IT IS SO ORDERED.
I, Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Bo~d hereby certify,’that the above order was adopted on the
/~
~
day of
_____________________,
1994, by a vote of
6
(2
)~_
~
Dorothy M. Gun~ dlerk
Illinois Poll,i~ionControl Board