ILLINOIS POLLUTION CONTROL BOARD
January 21,
1993
IN THE MATTER OF:
)
)
ANENDNENTS TO THE NEW
)
R92-21
SOURCE
REVIEW
RULES
)
(Rulemaking)
35 ILL. ADM. CODE 203
)
ORDER OF THE BOARD
(by G. T. Girard):
On January 13,
1993, the Board received a filing from the
Illinois Environmental Protection Agency (Agency) entitled
“Agency’s Objection to Hearing Officer’s Ruling, Language Added
to Section 203.112 Pursuant to Hearing Officer Order, and USEPA’S
September 3,
.1992, transition aemo”
(objection).
On January 15,
1993,
the Board received a second filing from the Agency entitled
“Motion for Expedited Decision on Agency’s Objection to Hearing
Officer’s Ruling”
(motion).
On January 20,
1993, the Board
received responses to the objection filed by the Illinois
Environmental Regulatory Group
(IERG), Illinois Steel Group
(Steel) and Stepan Company (Stepan).
At the January 6,
1993 hearing in this matter, the Board’s
hearing officer entered an order based on arguments made at the
hearing.
The order would allow anyone who argues that they may
be prejudiced by the notice in the Mt. Vernon newspaper to
question Mr. Romaine of the ~Agencyon his testimony given at the
January
6,
1993 hearing.
In addition, the hearing officer stated
that:
“my reading of 28.5 is that the Agency should be
available, and therefore shall be available to answer additional
questions at the second hearing
.
.
•“.
(Tr. at 124.)
The
hearing officer limited the scope of questioning to unresolved
issues pursuant to Section 28.5(g)(1)(B).
(Tr. at 127.)
The objection takes issue with two provisions enunciated by
the hearing officer.
The first provision that the Agency takes
issue with was stated as:
The Agency disputes the Board’s assertion
that proper notice was not served.
However,
in the interest of assuring that the SIP is
not jeopardized and in the interests of being
cooperative, the Agency hereby merely
registers its objection to the order but will
be available for any cross-examination on its
prefiled testimony brought to the second
hearing under the circumstances described by
the Hearing Officer
.
.
..
(Obj.
at 3.)
The second provision which the Agency takes
issue with was
the direction by the hearing officer that the Agency would
01 38_08L47
2
respond to questions raised at the second hearing on issues left
unresolved from the first hearing.
(Obj.
at 3.)
The Agency
states that Section 28.5(g) (2) limits the scope of the second
hearing to “affected entities and all other interested parties”.
The Agency states that “n)either
of these categories includes
the Agency”.
(Obj.
at 3.)
The Agency specifically states that
the Agency declines to answer any questions or be subject to
cross-examination.
(Obj.
at 5.)
The Board first notes that it was not clear from the
Agency’s filing of the objection what action the Agency was
seeking,
if any.
The objection cites to 35 Ill~Adm. Code
102.360 and 101.246 of the Board’s rules.
Both of those sections
of the Board’s rules deal with reconsideration of a Board’s final
order.
As the, objection is to a hearing officer ruling,
it was
unclear what action was anticipated by the filing.
The motion
filed by the Agency asks that tha Board render a decision at the
January 21,
1993 meeting.
However, the motion still did not
specify what decision the Agency was seeking from the Board. The
Board assumes that the Agency is seeking a reversal or
clarification by the Board of the hearing officer’s order.
The
Board also notes that the Agency has misstated the
Board’s position regarding notice of hearing in this case.
A
review of the transcript indicates that the hearing officer very
carefully stated that the notice published in the Mt. Vernon
paper could possibly create a notice problem.
The federal
regulations for air rules involving a state implementation plan
at 40 CFR 51.102 require at least 30 days notice of hearing.
The
Boarç~has long interpreted that provisions of 40 CFR 51.102 to
require notice in all eleven regions for at least 30 days.
The
Board believes that a 29 day notice in one region may be
sufficient.
However,
a cure for this potential deficiency was
readily available by convening a second hearing.
Therefore,
the
Board’s hearing officer correctly stated the Board’s position on
this matter and properly effected a cure.
The Board further
notes that several of the participants requested that a second
hearing be held so that they could provide testimony.
(Tr. at
114,
128,
129.)
Therefore, under Section 28.5, a second hearing
is required.
The hearing officer stated that the ruling was “not a
precedent which may be necessarily followed in further 28.5
rules”.
(Tr.
at. 127.)
However, all participants who responded
to the Agencys objectior
as well as
~eAgency, expressed
concern over the precedentjaj. va1u~of the h~aringofficer’s
ruling.
(IERG at
4;
Steel at 2; Stepan at
2; Obj. at 5.)
The Steel group responded to the Agency’s objection in
support of the hearing officer’s ruling.
The Steel Group cited
to several minor procedural errors by both the Board and the
Agency in attempting to meet with the requirements of Section
01 38-08~8
3
28.5 of the Act.
(Steel at 3)
“A strict reading of the statute
would not enable the Agency, or the Board, to easily cure these
problems.”
(Steel at 3.)
The Steel group argues that a reading
~of the statute which recognizes the Board’s implied authority to
recall Agency witnesses “would better comport with the intent of
the statute.”
(Steel at 4.)
In support of its position Steel argues that:
By use of two different words to define the
limitations on testimony in the section
(“confined” versus “devoted”)
it appears that
there was not intended to be parallel
construction of the two sections.
The second
hearing need not be “confined” to the
testimony of the affected entities and all
other interested parties, although that is to
be its focus.
(Steel at 4.)
Steel also responds to the Agency argument that it is not an
“interested party” to the rulemaking by reading the word “other”
in the phrase “affected entities and all other interested
parties” to refer back to the discussion of the IEPA which
occurred two paragraphs earlier.
The ISG submits that a more
logical reading of the phrase would be that the word “other”
refers to “affected entities”.
In this reading the IEPA would be
an “other interested part(y3.”
(Steel at
4•)1
Stepan’s response also asks that the Board sustain the
hearing officer order.
In fact Stepan states:
“Stepan Company
fully supports the Hearing Officer’s ruling as the only
reasonable interpretation of both the language of Section 28.5
and the procedures required as a result of events which took
place at the January 6, 1992
(sic) hearing.”
(Stepan at 2.)
Stepan points out several problems which could result if further
questioning of the Agency is not allowed.
Specifically, Stepan
is concerned that a clear record might not develop.
Stepan
states:
This rigid reading would put an artificial
limitation on the record created in the
second hearing that could result in issues
and questions, which could easily be examined
and potentially resolved on the record,
being
left open and unanswered.
This would
potentially place the Board in the untenable
The Board notes that, taking the Agency’s espoused position,
one could argue that if the Agency is neither an “affected entity”
nor an “interested party”,
then the Agency would not be able to
participate
in any fashion at the second hearing.
01 38-08~9
4
position of having to make a ruling on a
record where the Agency and affected parties
have in effect talked and argued “past each
other” without actually joining the issue.
(Stepan at 2.)
Stepan further expressed concern that such a reading of the
statue would preclude the Board from asking the Agency questions
for clarification purposes.
(Stepan at 2.)
Stepan also points out that although parties did have an
opportunity to cross-examine the Agency witness at the first
hearing “many of the nuances of the Agency interpretation” were
first communicated at the hearing.
(Stepan at 2.)
“Therefore,
the participants in that hearing cannot be expected to have been
fully prepared tc cross—examine the Agency” on interpretation at
that time.
(Stepan at 2—3.)
Finally, Stepan states:
There
is no reason to interpret Section 28.5
in the rigid fashion proposed by the Agency.
In fact, the language of Section 28.5 makes
it clear that while the first hearing “shall
be confined ~
testimony by and questions of
the Agency’s witnesses”
(Section 28.5(g) (1)
(emphasis added)), the second hearing shall
be devoted ~
presentation of testimony,
documents, and comments by affected entities
and all other interested parties”
(Section
28.5(g)(2)
(emphasis added)).
Strict
statutory construction makes it clear that
the second hearing, while designed to provide
an opportunity for presentations from
affected parties and interested persons, need
not be “confined” to those presentations.
There
is no indication in the language of
Section 28.5 of an intent that the Agency
would not answer questions raised in the
second hearing.
As the proponent of the rule
and having placed sworn testimony in the
record, the Agency should be fully available
to answer questions from the affected public
whenever they arise.
To allow the Agency to
ar wer que-’tions only as it sees fit, could
quite poss~1y slant ~nd jeopardize the
Board
;
rulemaking record.
This is certainly
not required by Section 28.5.
(Stepan at 4.)
IERG responded in support of the hearing officer’s
interpretation of Section 28.5.
IERG states that section
28.5(g) (2) does not prohibit or preclude the Agency from
0138-0850
5
answering questions at the second hearing nor is IERG aware of
any other statutory provisions which would operate
to
preclude
the Agency from answering questions.
(IERG at 2.)
IERG also points out that:
Section 28.5(k) requires the Board
to
“take
whatever measures are available to it to
complete fast—track rulemaking as
expeditiously as possible consistent
with the
need for careful consideration.” (Emphasis
added.)
(IERG at 2—3.)
Finally IERG states:
IERG appreciates the Agency’s concerns with
the precedence of the Board’s Hearing
Officer’s ruling, and it is for this very
reason that IERG responds here.
IERG agrees
with the Agency that the “constraints of
Section 28.5 are new and unusual,” but
disagrees that the Hearing Officer’s ruling
would establish “unsatisfactory precedents.”
Indeed, IERG believes that a Board Order
interpreting Section 28.5(g) (2) to prohibit
the Agency from answering questions would
establish an unsatisfactory precedent and
could hinder the Board in performing its
rulemaking responsibilities in
Clean Air Act
Fast-Track rulemakings.
(IERG at 4.)
Finally the Steel Group states:
The intent of the statute is to allow the
Board the necessary authority to cure minor
problems which may arise with the notice and
drafting processes of fast—track rulemakings.
Therefore, the Board has the implied
authority to take the least time—wasting
action that it can to cure
any problems with
the notice or the IEPA’s proposal, consistent
with general intent and scheme of the
statute.
Rather than declaring a pending
rulemaking to be void and forcing all the
participants back to ground zero,
the Board
may, by Hearing Officer or Board Order,
change the character of the remaining
hearings to comply with the intent to the
act.
Only by recognizing that it has such
flexibility can the Board effectuate the
intent of the statute, which was to put the
Clean Air Act rules on a “fast—track”.
0138-0851
6
Upon reviewing the transcript and the arguments put forward
by participants, the Board is persuaded that the hearing officer
has correctly read Section 28.5 of the Act.
Allowing questions
of the Agency at a second hearing will ensure the development of
complete rulemaking record and expediting the process.
Such a
reading of Section 28.5(g) coaports with the legislative goal of
fast-paced rulemaking under the Clean Air Act.
The Board affirms
the hearing officer order.
IT IS SO ORDERED.
Board Member J. Theodore Meyer concurred.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby ccrtify
hat the above order was adopted on the
_____
of
~
,
1993, by a vote of
Dorothy N. ~
Clerk
Illinois Poljution Control Board
0138-0852