ILLINOIS POLLUTION CONTROL BOARD
December
3,
1992
IN THE MATTER OF:
)
CLEAN AIR ACT RULEMAKING
PROCEDURES
PURSUANT
TO
)
SECTION
28.5 OF THE
)
RES 92-2
ENVIRONMENTAL PROTECTION
)
(Resolution)
ACT,
AS ADDED BY
P.A. 87—1213
)
RESOLUTION AND ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter is before the Board on a motion for
reconsideration,
filed by the Illinois Environmental Protection
Agency
(Agency)
on November 13,
1992.
The Board has not received
any response to the Agency’s motion.
The motion
for
reconsideration
is granted,
so that the Board may respond to the
issues raised by the Agency’s motion.
BACKGROUND
On October 29,
1992, the Board adopted the resolution which
is the subject of the Agency’s motion.
The resolution
is
in
response to new legislation
(P.A.
87—1213, effective September
26,
1992), which added a new Section 28.5 to the Environmental
Protection Act
(Act).
Section 28.5 establishes new fast-track
rulemaking procedures for rules proposed by the Agency and
required by the federal Clean Air Act,
as amended by the Clean
Air Act Amendments
of
1990
(CAAA).
These fast-track procedures
are very specific,
and establish a number of deadlines for action
on
a CAAA proposal.
However,
Section 28.5 raises a number of
questions of interpretation of those specific provisions.
As the
Board stated on October 29, the purpose of the resolution
is to
articulate the Board’s position on those issues, and to provide
guidance to future participants
in Section 28.5 rulemakings.
The
Board established a 14-day period for the filing of any motions
for reconsideration.
The Agency’s motion for reconsideration was
subsequently filed on November
13,
1992.
DISCUSSION
The Agency,
in its motion,
asks the Board to reconsider
a
number of provisions of the resolution.
Initially,
the Agency
contends that through this resolution, the Board
is “undertaking
actions which constitute rulemaking without meeting the formal
requirements for rulemaking,
including prior notice and comment.
Thus,
the Agency requests that the Board rescind its
resolution.”
(Motion at 1.)
0
37-0617
2
The Board recognizes that some
of the issues discussed
in
the resolution may be better codified through
tthe rulemaking
process.
However,
as the Board originally stated,
the intent of
the resolution
is to provide guidance to future participants
in
Section 28.5 rulemakings,
and to put all interested parties on
notice
of
the
Board’s
position
on
ambiguous
provisions
of
Section
28.5.
It
is
clearly
within
the
Board’s
authority,
as
a
deliberative body,
to issue resolutions setting forth its views
on unsettled
issues.
The Board will consider a rulemaking to
promulgate procedural rules for
Section
28.5 rulemakings.
However, the Board notes that it has already received the first
Section
28.5
fast-track
rulemaking
proposal
from
the
Agency
(Amendments
to the New
Source
Review
Rules,
35
Ill.Adm.Code
Part
2Q2,
R92—21),
and we expect to receive several others before the
end of the year.
Given
the
lengthy
rulemaking
requirements
of
the Administrative Procedure Act
(APA)
(Ill.Rev.Stat.
1991,
ch.
127, par.
1001—1 et seq.), the Board finds that
it
is preferable,
in the interim,
to articulate its views through
a resolution,
rather than keeping interested parties “in the dark” as to the
procedures that will be utilized.
Therefore,
the Board refuses
to rescind its resolution.
In the alternative,
the Agency asks that the Board
reconsider several proposed procedures articulated in the
resolution.
The Agency contends that these proposed procedures
are contrary to the “letter and intent”
of Section 28.5,
and
therefore “illegal”.
First, the Agency objects to the Board’s decision to conduct
a review of Agency proposals for minimal compliance with the
requirements
of Section 28.5(e).
The Agency contends that the
Board will hold regulatory proposals for
“3 to
5 days”,
in
violation of Section 28.5.
The Agency maintains that Section
28.5 does not provide for any review period,
and that any review
before the proposal
is date-stamped
“violates the letter and
intent of Section 28.5 and constitutes an illegal
act”.
(Motion
at 2.)
The Agency argues that the deadlines
in Section 28.5
begin with the Board’s receipt of
a proposal,
and that date-
stamping is irrelevant.
After
careful
consideration,
the
Board
refuses
to
delete
the
provision that we will conduct
a short review of an Agency
proposal for minimal compliance with the requirements of Section
28.5(e).
The Board has inherent
authority
to
determine
what
documents to “accept”.
For example, the Board does not accept
any pleading which does not conform with the “form of document
provisions
of our procedural
rules
(35 Il1.Adm.Code
101.103)
such as pleadings which are not submitted on the prescribed-size
paper. Likewise,
the Board does not accept any document for which
a filing fee
is required without that filing fee.
Because
Section 28.5 establishes tight deadlines for Board action,
beginning with “receipt”
of the proposal,
the Board must have
0137-0618
3
some method to determine whether the proposal
is sufficient for
the Board to take the actions required by the statute.
The
Board
stresses
that
its
decision
to
undertake
a
technical
review
of
the
proposal
for
compliance
with
the
statutorily-required
elements
is
intended
to
promote,
not
hinder,
efficiency.
The
rulemaking
will
proceed
much
more
quickly
and
efficiently if the required elements are provided “up front”,
rather than during the course of the proceeding.
As stated in
our October 29 resolution,
the Board will review the proposal
only for minimal compliance,
and will not delay a proposal
because of minor problems.
Additionally, although the Board
stated
in
the
resolution
that
the
review
will
be
completed
within
two business days
(not the three to
five
days suggested by the
Agency),
in
most
cases
it
will
take
far
less
time.
For
example,
the Board completed its review of the Agency proposal in
Amendments
to the New Source Review Rules,
35 I11.Adrn.Code Part
ZQ~,
R92-2l, and the proposal was date-stamped
as received,
on
the same day that the proposal arrived at the Board’s office.
Additionally, the Board date-stamped the proposal without asking
for any changes,
even though the Board identified at least seven
errors which
we
had to correct before the proposed rules were
filed with the Secretary of State for first notice publication.
Next,
the Agency challenges the Board’s interpretation of
Section 2~.5(f), which requires the Board to, within
14 days of
receipt of the rule,
file
a proposed rule for first notice,
schedule all hearings,
and cause public notice to be given.
The
resolution stated that the Board interprets this requirement to
mean that the appropriate documents must be sent within
14 days,
not that first notice and public notice of hearings be published.
The Agency states that
it interprets the language of subsection
(f) “to mean that first notice must be published in the Board’s
usual fashion,
that is through
a Board
order,
and that public
notice be given through the Illinois Register and the other usual
methods of public notice within the
14 days.”
(Motion at
2.)
The Agency contends that the Board has attempted to grant itself
discretion where none
is provided,
and states that
it
“anticipates that,
if the Board misses these publication
deadlines,
it should miss the deadline by only a few days rather
than by the two weeks the Board
is giving itself
in its
rjesolution.”
(Motion at 2—3.)
The Board
is not completely clear on the Agency’s position
on this
issue.1
Initially,
the Board notes that Section 28.5(f)
The October 29 resolution did not specifically state
that the Board will
issue, within the 14-day time pericd,
a Board
first notice order.
The Board will
issue its first notice order
within
14 days of the receipt of
a Section 28.5 proposal, and in
0
37-0619
4
never uses the word “publish”, but requires the Board to “file”
and
“cause
public
notice
to
be
given”
within
the 14—day period.
If the Agency
is contending that first notice must actually be
published
in the Illinois Register within 14 days,
and that
actual
newspaper
publication
must
occur
within
that
14
day
period,
the
Board
points
out
that
to
interpret
Section
28.5(f)
in
such
a
way
would
lead
to
an
impossible
result.
The
rules
of
the
Administrative
Code
Division
provide
that
all
documents
received
by the Administrative Code Division by 4:30 p.m.
on Tuesday shall
be
published
in
the
Illinois
Register
on
the
following
Friday,
ten
days
later.
(1
Ill.Adm.Code
100.200.)
Therefore,
any
proposal
received
by
the
Board
on
any
day
other
than
Friday
or
Monday
would
always
be
published
outside
the 14-day period.
Even
those proposals received on a Friday or Monday would be
publishable within
14 days only where the Agency proposal is
received in perfect form for publication
(a determination made by
the Administrative Code Division,
in the final instance).
Additionally,
in order to comply with the requirements
of the
Clean Air Act, the Board must publish notice of hearing in eleven
newspapers
around the state.
Several of those papers are only
published
weekly,
so that
it
would
be
impossible
to
ensure,
in
every
case,
that
all
newspaper
notices would be published within
14
days
of receipt of the proposal.
In construing
a statute,
it
is presumed that the legislature did not intend absurdity,
inconvenience,
or injustice.
(See,
e.g.,
Harris v.
Manor
Healthcare Corp.
(1986),
111 1l1.2d 350,
489 N.E.2d 1374; City of
Rolling Meadows
v.
Kyle
(1st Dist.
1986),
145 I1l.App.3d 168,
494
N.E.2d
766.)
Therefore,
the Board finds that Section 28.5
does
not require actual publication within
14 days, but only that the
Board take the actions required to file first notice with the
Administrative Code Division,
schedule all hearings,
and cause
public notice to be given.
The Board
is puzzled by the Agency’s assertion that it
anticipates that
if the Board misses these deadlines,
they should
be
missed
by
only
a
few
days
rather
than
by
the
two
weeks
that
the Board
is “giving itself”.
As stated above, and
in the
October 29 resolution,
the Board intends to comply with the
requirements of subsection
(f)
by mailing the appropriate
documents within 14 days.
The Board believes that this
interpretation of subsection
(f)
is proper.
The Board does not
“anticipate” missing the 14—day deadline at all,
and is confused
by the Agency’s reference to a two week delay.
It is ironic that
the Agency should seem to insist that publication must occur
within the time period
(an interpretation that renders the
statute absurd), yet imply that missing a deadline by
a few days
is acceptable.
fact did so in Amendments to the New Source Review Rules,
35
Ill.Adm.Code Part 203 (November
19,
1992)
,
R92—21.
UI 37-0620
5
Third, the Agency moves that the Board add to its resolution
a requirement that the hearing officer te1eph~nethe Agency
attorney assigned to a proposal to notify him or her of the
hearing dates, rather than waiting for publication in the
Illinois
Register.
The
Board
points
out
that
all persons on the
notice list, which includes the Agency attorney,
receive copies
of
the
hearing
notice
and
hearing
officer
order.
That
hearing
notice
and
hearing
officer
order
will
be
mailed
within
14
days
of
receipt
of
the
proposal.
The
Board
will
leave
the
question
of
individual phone calls up to the hearing officer.
The Agency next objects to the Board’s findings on the pre-
filing
provisions
of
Section
28.5(g).
The
Agency
contends
that
only
those
who
have
pre-filed
their
testimony,
and
served
that
testimony
upon
all
“participants
of
record”,
can
testify
at
hearing.
The Agency maintains that “for
the Board to do other
than what
is required by Section 28.5(g)
regarding the prefiling
of testimony would constitute an illegal act on the part of the
Board.”
(Motion at 3.)
The Agency argues that subsection
(g)
is
clear
in
stating
that
the
Board
shall
require
the
written
submission
of all testimony,
and that this language precludes
testimony from those who fail to pre-file or who pre-file later
without good cause.
As the Board recognized
in its October 29 resolution,
Section 28.5(g)
states that the Board shall require the pre-
filing
of testimony,
but does not exclude testimony from those
who do not do so.
The Board does not believe that this is an
artificial distinction.
Hearings held pursuant to the Act are
public hearings,
and the Agency has failed to point to any
authority to exclude testimony from the “public” where time
remains
in that hearing day.
Additionally, the Board questions
whether hearings pursuant to Section 28.5(g)
would satisfy the
public hearing requirements
of the Clean Air Act if
a person was
precluded from testifying solely because he or she did not pre-
file.
The
Board
agrees
with
the
Agency
that
we
are
bound
by
the
requirements of
Section 28.5,
and the Board intends to comply
with all provisions
of the Act.
However, the Board
is not
persuaded by the Agency’s interpretation of the pre—filing
requirement of subsection
(g).
Fifth,
the Agency moves that the Board reconsider
its
interpretation of what may be waived “for good cause” pursuant to
subsection
(g).
The Board interpreted that provision to allow a
waiver of either the pre-filing requirement itself or the
deadline for pre-filing.
The Agency contends that the intent of
the “drafters” was not that the Board could waive the pre-filing
requirement,
but only the deadline for pre—filing.
The Board rejects the Agency’s contentions.
The sentence at
issue reads
“The Board shall require the written submission
of
all testimony
at least
10 days before
a hearing, with
0137-0621
6
simultaneous service to all participants
of record
in the
proceeding as of
15 days prior to hearing, unJess a waiver
is
granted by the Board for good cause.”
(Sectic~n28.5(g).)
The
question
is whether the clause allowing the waiver modifies the
whole sentence,
or whether it modifies only the last provision.
If,
as
the
Agency
argues,
it
modifies
only
the
last
part
of
the
sentence,
then
it
would
allow
the
Board
to
grant
a
waiver
of
the
simultaneous service provision only,
and not either the
requirement
itself
or
the
deadline
for
pre-filing.
The
Agency
itself
argues
that
the
waiver
provision
was
intended
to
allow
a
waiver of the deadline.
The Board finds the most logical
interpretation of the sentence to be that the Board
(acting
through its hearing officer, where necessary)
may waive either
the pre—filing requirement or the deadline.
As to the Agency’s
contention
that
the
intent
of
the
drafters
was
to
allow
only
a
waiver of the deadline,
the Agency has failed to point to any
evidence of legislative intent,
such as floor debates.
The Board
finds that its interpretation of the waiver provision
is correct.
Next, the Agency asks the Board to reconsider our finding
that a second hearing will be held without a specific request for
the second hearing, where there has not been
a statement of
agreement regarding the proposal.
The Agency contends that
Section 28.5(g) (1) specifically requires that there be
a request
for the second hearing within seven days of the first hearing,
and that the language
in subsections
(g) (1) (A)
and
(B) that the
Board “may” cancel the second hearing refers only to
a situation
where there was
a request for the second hearing, but agreement
was subsequently reached.
The Agency also asserts that the Board
has “added”
a requirement that there be agreement on a proposal
in order for the second hearing to be cancelled; that Section
28.5 does not give the Board the authority to hold a second
hearing “just because” the Agency and the participants have not
stated on the record that there
is agreement to the rule; and
that “where
there
is no statement of agreement and no request
for the second hearing,
the Board
is obligated to cancel the
second and third hearings and proceed to second notice based upon
the record before it.”
(Motion at 4.)
Based upon the language of Section 28.5(g), the Board
rejects
the
Agency’s
claims.
The assertion that the language
that the Board “may” cancel the second hearing
applies
only
where
agreement
is
reached
after
a
request
for
a
second
hearing
ignores
the plain meaning of subsection
(g).
That subsection
specifically
provides
that
the
Board
“shall”
set
three
hearings
on each proposal.
In other words, the Board has an affirmative
duty to schedule all three hearings.
Subsection
(g) (1) then
provides that
“any person may request”, within seven days
of the
first hearing,
that the second hearing be held.
Contrary to the
Agency’s contention,
that provision does not require that a
request be made
in order for the second hearing to be held.
The
only mentions
of cancellation of the second hearing are in
0137-0622
7
subsections
(g) (1) (A)
and
(B).
The additional hearings may only
be cancelled
if:
1)
the Agency and affected t~ntitiesare
in
agreement on the rule;
2)
the United States Ei.vironmental
Protection Agency
(USEPA)
has not informed the Board of any
unresolved
objections to
the
rule;
and
3)
no
other
interested
party contests the rule or asks for the opportunity to present
additional
evidence.
Even
if
all
of
these
conditions
are
satisfied,
the
decision
whether to cancel the additional hearings
lies
with
the
Board.
The statute clearly states that
if the
three conditions are met, the Board ~y
cancel
the
additional
hearings.
Contrary to the Agency’s contentions,
the Board has not
“added”
a
requirement
that
there
be
agreement
on the proposal
in
order for the second hearing to be cancelled.
Instead, the
statute specifically requires that there be agreement before the
Board
may
cancel
the
second
hearing.
The
Board
also
points
out
that once a second hearing has been requested pursuant to
subsection
(g)
(1)
,
even
a
subsequent
agreement
as
to
the
rule
will not cancel the second hearing, unless the request for
hearing
is withdrawn.
It is possible,
for example, that while
the Agency,
the affected entities,
and USEPA may agree on the
rule,
some
other “interested party” may wish to have a second
hearing.
In such a situation,
the second hearing must be held.
In sum,
the Board reaffirms its earlier statement that,
in the
absence of an agreement on the proposal, the second hearing must
be held,
even where there has been no specific request for that
second hearing.
The Board specifically rejects the Agency’s
assertions that we are “obligated”
to cancel the additional
hearings where there
is no statement of agreement and no request
for the second hearing.
The language of Section 28.5(g)
simply
does not support such an interpretation.
Finally,
the Agency moves that the Board accept the Agency’s
statement on the record that there is agreement on the rule,
unless
a participant
of record states,
also on the record,
a
contrary position.
The Agency states that
it engages
in
extensive outreach in the development of rules required by the
Clean Air Act,
and thus, when the Agency states that
it believes
that there
is agreement to
a proposal,
it does so in good faith.
The Agency recognizes that such a statement must be part
of the
record,
either
stated
at
hearing
or
in
a
written
document
served
upon all participants
of record.
The Agency contends that at
this point,
“the burden shifts to the participants of record to
come forward and state disagreement with the rule and to provide
good reasons for their disagreement and to provide some proof
or
indication that their position
is more acceptable to the
USEPA
than
is the proposal the Agency has stated
is agreed-to.”
(Notion at
5.)
The Board will preliminarily accept,
for purposes of
determining whether there
is agreement on the rule,
the Agency’s
0137-0623
8
statement
on
the
record
that
it
believes
that
there
is
agreement
to the rule.
However,
such an Agency stateme~itmust either be
made on the record at the first hearing,
or
ir~writing
immediately after the first hearing, so that any person who
disagreed would have sufficient opportunity to request
a second
hearing.
If the Agency believes,
however,
that a person who
states disagreement with the proposal must provide “good reasons”
in order to indicate disagreement with the proposal
(as opposed
to this being
a general statement that a participant of record
must support his position),
the Board rejects such an
interpretation.
For purposes of stating that an affected entity
does
not
agree
with
the
proposed
rule,
so that the proceeding
will
continue
to
further
hearings,
all
that
entity must do is
merely
state
its
disagreement.
CONCLUSION
As stated above,
the Board rejects the Agency’s assertion
that the October 29,
1992 resolution should be withdrawn.
The
Board has also considered the specific objections of the Agency
to the substance of the resolution,
and has resolved those
objections
as stated above.
The Board reaffirms the October 29,
1992 resolution,
as further clarified by this resolution and
order.
IT IS
SO RESOLVED AND ORDERED.
R.
Flemal and B.
Forcade concurred.
I,
Dorothy M.
Gunn,
Clerk
of the Illinois Pollution Control
Board, hereby certify that the aboye resolution and order was
adopted on the
~
‘~—~
day of
________________
,
1992,
by
a vote
of
7-~
.
~
Dorothy N. 4~nn, Clerk
Illinois Pollution Control Board
01
37-O62~
