ILLINOIS POLLUTION CONTROL BOARD
April
9,
1990
IN THE MATTER OF:
)
RACT DEFICIENCIES
-
)
R89—16
AMENDMENTS TO 35 ILL.
ADM.
)
(Rulemaking)
CODE PARTS 211 AND 215
)
ORDER OF THE BOARD
(by J.D.
Dumelle):
This matter
comes before
the Board upon a March
15,
1990,
motion by the Illinois Environmental Protection Agency
(“Agency”)
for the Board to reconsider and void its Order of February 8,
1990.
On
March
26,
1990,
the
Illinois Environmental
Regulatory
Group
(“IERG”)
filed a response to the Agency’s motion.
For the reasons
set
forth
below,
the
Board
grants
the
Agency’s
motion
to
reconsider;
however,
on
reconsideration,
the
Board
declines
to
grant the Agency’s requested relief.
In
support
of
its motion,
the Agency argues that
the Board
erred in deciding
(1) that it possesses the authority to review an
Agency certification of a proposed rule as “federally required” and
(2)
that the proposed changes
to the Generic rule and the SOCMI
rule are not “required” within the meaning of Section 28.2 of the
Environmental Protection Act
(“Act”).
In addressing the Agency’s
motion,
the Board notes that the factual background
is adequately
set forth in the Orders in this docket dated February 8 and March
16,
1990.
The fat~tsin and the Board’s rationale for those Orders
will not be repeated here.
(1)
Agency Certification
The Agency argues that the Board does not have the authority
to review an Agency certification of a proposed rule as a required
rule pursuant to Section 28.2 of the Act.
First, the Agency states
that there is no specific grant of authority to the Board to reject
and dismiss the Agency certification in
a Section 28.2 proceeding
and
that
the
Board
is
an
administrative
body
subject
to
the
statutory rule that without
a specific grant
of authority,
such
authority does not exist.
Village of Lombard v
Pollution Control
Board,
66
Ill.
2d
503,
363 N.E.2d
814,
6
Ill.
Dec.
867
(1977);
Illinois
Power Company
v.
Illinois
Pollution
Control
Board,
137
Ill.
App.
3d
449,
484
N.E.
2d
898,
92
Ill.
Dec.
167
(4th
Dist.
1985); Chemetco,
Inc. v. Illinois Pollution Control Board, 140 Ill.
App.
3d 283,
488 N.E.2d 639,
94
Ill.
Dec.
640
(5th Dist.
1986).
The Board does not disagree with these cited cases.
However,
the Board notes that the courts have also held that where there is
an
express
grant
of a~ithor~ty,the*e
is 1&ke~4s~ti~
r.ie~r
and
express a’~r~tc: po~e~co ao a~lthat
is rea5c~1a~~
~sary
to
execute
the
power
or
perform
the
duty
specifically
conferred.
______
~C
N~E.2d63~, at
&43.
As
discussed
ir1 L~t O~icr of
F~rua~.y
~,
i9~0, unäer 3~.~ti~n of th~Act,
the Loai~. is
~
110—01
2
environmental
rulemaking
agency
for the State
of
Illinois.
In
other words,
the General
Assembly has made
an
express
grant
of
rulemaking authority to the Board.
Along with that express grant
of rulemaking authority goes the power to do all that is reasonably
necessary to perform that duty.
The
Board
believes
that,
in
Section
28.2
rulemaking
proceedings,
reviewing
the
correctness
of
the
Agency’s
certification may
in certain
instances be a reasonably necessary
step
in performing the duty of adopting “a rule which fully meets
the applicable
federal law,...”
Where,
as here,
(1) the federal
law to which the proposed rule
is alleged to respond is of such a
general nature and/or
(2)
the underlying subject matter has been
the source of controversy, the Board must discern exactly what is
required
before
it
can
adopt
a
rule
which
fully
meets
the
applicable
federal
law.
In
other
words,
discerning
what
is
“required” goes hand in hand with adopting a rule which fully meets
the applicable federal law.
Thus, to perform the duty of adopting
a rule which fully meets the applicable federal law, the Board must
have the power to determine what the requirements of the applicable
federal law are; and if that differs from what the Agency certifies
as
being
required,
the Board must have the power to review the
Agency certification for correctness.
The Board finds further support for this view in the language
of Section 28.2(b)
wherein
it states “whenever
a required rule
is
needed,
the Board
shall
adopt
a
rule which
fully meets
the
applicable
federal
law,
.
..“
The words
“is needed”
call
for
a
determination on the part of some entity that the required rule is
needed.
As the Board is the only entity named in that sentence,
and as the Board is the rulemaking agency under the Act, the Board
is the logical
entity to make
a determination that the required
rule is needed,
i.e., that the rule is indeed required.
Thus, the
Board’s review of the Agency’s certification
is appropriate under
Section 28.2(b)
of the Act.
The Agency next argues that the Board’s reliance upon Section
5(d) of the Act is misplaced.
Section 5(d)
states:
d.
The Board shall have authority to conduct
hearings upon complaints charging violations
of this Act or of regulations thereunder, upon
petitions
for variances;
upon petitions
for
review of the Agency’s denial of a permit in
accordance
with
Title
X
of
this
Act;
upon
petition to remove a seal under Section 34 of
this Act; upon other petitions
for review of
final determination which are made pursuant to
the
Act
or
Board
rule
and
which
involve
a
subject
which
the
Board
is
authorized
to
regulate;
and such
other hearings as may be
provided by rule.
110—02
3
The Agency argues that the only basic grant of authority to
the Board in Section 5(d)
is the authority to “conduct hearings”.
The Agency
argues
that
there
is
no
decision-making
or
review
authority granted to the Board
in
Section
5(d),
other than the
authority to conduct a hearing.
Further, the Agency focuses on the
language “and which involve a subject which the Board is authorized
to regulate”.
The Agency contends that the Agency certification
is not a subject which the Board is authorized to regulate.
In its response, IERG notes that the Agency takes the position
that the Board does not have the authority to review or dismiss a
certification
and
that,
as
a
result,
any
rule
the
Agency
so
designates as
a required rule automatically becomes
a
“required
rule” within the meaning of Section 28.2.
IERG argues that should
this contention prevail, taken to its logical extension, the Agency
could certify any proposed rule as a required rule and the Board
would have to so treat the rule, regardless of whether the Agency’s
position is with or without merit.
IERG argues that this position
is without legitimate basis.
Further,
IERG argues that Section
5(d)
grants
the
Board
the
authority
to
review
the
Agency
certification, and further the Board has, under Section 5(b).of the
Act, general powers to make and implement rules.
It is this broad
grant of rulemaking authority that IERG relies upon to support its
view
that
the
Board
possesses
the
authority
to
review
Agency
certifications.
The
Board
is
not persuaded
by
the
Agency
on
this
point.
First, with respect to the Section 5(d) grant of authority to the
Board
to
“conduct hearings”,
the Board believes that the Agency
construes this language much too narrowly.
Implicit in the grant
of authority to
conduct hearings
is the power
to
act upon the
subject matter of the hearing.
The Board construes this subsection
as a general grant of authority to conduct hearings and to act
in
ways that reasonably flow from the holding of such a hearing.
In
this proceeding, the relevant language is:
The Board shall have authority to conduct hearings
upon petitions for review of final determinations
which are made pursuant to the Act or Board rule and
which
involve
a
subject
which
the
Board
is
authorized to regulate;...
The Board notes that the Industry motion
filed January
24,
1990,
constitutes a petition for review of
a final determination of the
Agency made pursuant to Section 28.2 of the Act.
With respect to
the second part
of this provision,
i.e.,
“and which
involves
a
subject which
the
Board
is
authorized
to
regulate”,
the
Board
believes that,
here too,
the Agency construes
this
iangu3ge too
ncrrowiy.
Whereas the Agency would construe the “subject” as
being
the Agency certification separate and distinct from anything else,
th~Board construes the
“subject”
as being the subj~tmatt~: of
tii~~prcpos~d~tmerdments, i.
ruirer~ientsof the fcci~r~lClean
10~-O3
4
Water
Act,
Safe
Drinking Water
Act,
Clean
Air
Act
(including
required submission of a State Implementation Plan),
etc.
Clearly
the
emission
of air pollution
is
a
subject
which
the Board
is
authorized to regulate.
Thus,
the Board’s reliance upon Section
5
of the Act
is proper to base the authority to review an Agency
certification.
The Agency next states that it
is not asserting that,
under
Section 28.2,
the Agency certification is beyond judicial review.
The Agency contends
that
after the
Board’s
final
decision,
any
participant with
a
legitimate
interest
in
the
outcome
of
the
proceeding may appeal.
The Agency states that such an appeal could
raise
the
issue
of
whether
the proceeding
is
a
required
rule
proceeding pursuant to Section 28.2 of the Act.
In
its
response,
IERG
notes
that
in
an
appeal
from
the
adoption of an administrative regulation,
the one who attacks the
regulation bears the burden of establishing its invalidity.
IERG
argues
that
a
reviewing
court
may
set
aside
an
administrative
regulation
only
if
it
is
clearly
arbitrary,
capricious,
or
unreasonable.
Midwest Petroleum Marketers Association v. City of
Chicago,
82
Ill.
App.
3d
494,
402 N.E.2d 709
(Ill.
App.
1980).
Further,
IERG argues that issues which are not objected to in the
original administrative proceedings are waived and cannot be raised
on appeal.
Waste Management v. Pollution Control Board,
530 N.E.2d
682,
695,
125 Ill.
Dec.
524,
537
(111. App.
2d 1988).
Thus,
IERG
argues that if the Board is
not permitted to decide the issue of
whether a rule is a required rule pursuant to Section 28.2 of the
Act at the administrative level,
the Appellate Court cannot
and
will not decide that issue on appeal.
On this point,
the Board agrees with IERG.
Notwithstanding
the Agency’s assertions,
the courts have been quite clear on the
this issue.
Issues that have not been presented or passed upon in
an
administrative
hearing
will
not
be
considered
on
review.
Village of
Cary
v.
Pollution Control
Board,
38
Ill.Dec.
68,
403
N.E.2d 83,
82 Ill.App.3d 793
(1980).
In light of these holdings,
the Board is persuaded that
it must address appeals to the Agency
certification during the course of the rulemaking proceeding.
In
this way the appellate court will have a complete record to review
on appeal.
Moreover, the Board believes that were it to subscribe
to the Agency’s theory,
it would be required to proceed through a
lengthy rulemaking proceeding on the possibly shaky ground of an
erroneous Agency
certification.
It would be
a waste
of
scarce
state resources to have the Board, and all participants, expend the
necessary time, energy, and resources to complete a rulemaking only
to
have
the
appellate
court
find
on
appeal
that
the
Agency
certification was erroneous, thereby voiding the entire rulemaking
proceeding and any regulations resulting therefrom.
2.
Generic and SOCMI rules status
110—04
5
The Agency argues that the proposed changes to the Generic and
SOCMI rules are required rules as defined in Section 28.2(a) of the
Act.
The Agency points to the language in the Board’s February 8,
1990 Order, wherein it states:
Having
found
the
authority
to
review
certifications,
the Board further finds that
the proposed amendments
to the Generic
rule
and
the
SOCMI
rule
are
not
founded
upon
“federal law” as that term is used in Section
28.2
of the Act.
The
Board
is persuaded by
the
thorough
analysis
submitted
in
the
Industry
Group
motion,
which
is
discussed
above.
The
Board
is
also persuaded by the
lack
of
analysis
in
the Agency’s
response.
The Board can
find nothing
in the record to
directly support the characterization of the
Generic
rule
and
SOCMI
rule
proposed
amendments as “required rules.”
As
a result,
the Board finds
that these proposed sections
must be removed from the existing docket.
With respect to the lack of analysis in the Agency’s response, the
Agency
states
that
its
comments
on
the
issue
of
the
proper
interpretation of Section 28.2 were not due until February 9, 1990.
The Agency states that it requested and received an extension of
time to February 9,
1990, to respond to the motion to strike filed
by Stepan.
The Agency states further that it had every expectation
that this
issue would be
decided
on the basis
of
all available
information and arguments.
Therefore,
the Agency believes that,
having acted
on February
8,
1990,
the Board acted on an issue
of
great importance before the Board’s own deadline had passed.
In its response,
IERG notes that the Agency never requested
an extension of time to respond to the Industry Group’s motion to
dismiss.
IERG states that the Board waited for the allowable time
for responses to pass before acting on the motion.
IERG believes
that the Board acted expeditiously after that time.
IERG states
further:
IEPA
appears
to be
claiming
that
the
Board
acted
too
expeditiously
in
ruling
on
the
Motion,
even though the
Board had no way of
knowing that the IEPA ever intended to respond
to
that Motion.
Indeed,
the
IEPA does not
state that it ever intended to respond to the
Motion of the Business Group Industry
Groupi
which was decided by the Board.
(IERG Response, pp.
3—4.)
To
put
this
matter
~ri~
perspective, the Board notes tnat time
110—05
6
Agency did,
on January 31,
1990,
file
a response to the Industry
Group’s motion——in fact, the complete substantive response by the
Agency was fully reprinted
in the Board’s
Order
of
February
8,
1990.
The Board understood this filing to be the Agency’s response
to the Industry Group’s motion.
Although the Agency stated at the
conclusion of that response that it “reserves the right to brief
or comment on the issues contained in the Industry Group’s Motion
prior to the close of the comment period”, the Board notes that its
procedural rules allow participants
7 days to file a response to
a motion.
35 Ill. Adm. Code 101.241(b).
No participant can extend
a
properly adopted procedural
deadline simply by “reserving the
right”
to
file
a
subsequent
document.
Further,
the
Agency’s
reliance on its extension of time to respond to Stepan’s motion is
not persuasive——the extension was simply for that limited purpose,
a
response
to
Stepan’s
motion.
The
Board
notes
that
Stepan’s
motion
and
the
Industry
Group’s
motion
were
two
separate
and
distinct motions.
Had
the Agency
requested additional
time to
respond to the Industry Group’s motion,
as it had with respect to
the Stepan motion,
and had the Board granted the motion, then the
Agency’s post
hearing comments
could
have
and would
have been
considered before the decision
on the
motion.
However,
as
the
Agency filed a response that was complete in and of itself within
7
days
of
the
filing
of
the
motion,
the motion
was
ripe
for
decision.
The Agency cannot now argue that the motion was
not
ready for decision;
the Agency’s own action made the motion ripe.
The
Agency
next
argues
that
the
Generic
and
SOCMI
rule
amendments fall within the definition of “required rule” in Section
28.2(a)
of
the Act.
The Agency notes that the Board relied upon
the term “federal law” in finding that the Generic and SOCMI rule
amendments were not
required,
and apparently argues that,
in
so
doing,
the Board erroneously interpreted Section 28.2(b) when it
should have interpreted Section 28.2(a).
The Agency states:
The term “federal law”, which the Board relies
on in making this decision, has nothing to do
with determining whether a rule is a required
rule;
in fact, the term “federal law” appears
in Section 28.2(b) and specifically refers to
the Board’s obligation to adopt
a rule which
“fully meets the applicable federal
law”.
On
this
point,
the Agency
appears
to be
splitting
hairs.
Either a rulemaking
is “required” under federal law or it is not.
The terms “required rule” and
“federal law” are two sides
of the
same coin.
In other words,
it is the result of a federal law which
makes a proposed rule “required”.
Further, the Agency’s statements
ignore Section 28.2(e), wherein it states in pertinent part:
When
the
Agency
proposes
a
rule
which
it
believes
to
be
a
required
rule,
the Agency
shall so certify in its proposal,
identifying
110—06
7
the
federal
law
to which
the
proposed
rule
will respond.
(Emphasis added.)
This section,
too, references “federal law,” and
in the specific
context of the Agency certification.
Thus,
the Board disagrees
with the Agency when it asserts that “federal law” has nothing to
do with determining whether
a
rule
is
a
required
rule--it
has
everything to do with it.
Finally,
the Agency
argues that its certification
“clearly
establishes”
the
Generic
and
SOCMI
rules
as
required
rules.
Further,
the Agency
argues
that the
federal requirement
is
not
contained in the SIP call letters, the “blue book”, federal letters
or settlement
agreements,
but rather
in the
Clean Air Act.
The
Agency then proceeds to argue against the analysis offered by the
Industry Group
in its motion and relied upon by the Board
in. its
February
8,
1990 Order.
In
its
response,
IERG
notes
that the
“IEPA
appears to
be
filing what would have been its response to the Industry Group’s
Motion.”
IERG submits
that
there
is
nothing
contained
in
the
Agency’s motion that provides any support for its position that the
Generic and SOCMI rules are required rules.
IERG argues that the
Agency’s motion
is basically a lengthy quotation from the Agency
certification,
which
was reviewed by the Board
and
found to be
inadequate support for the position that the rules are required.
Finally,
IERG argues that the Clean Air Act does not require any
particular rule content to be adopted by
the states,
but rather
leaves it to each state to determine the proper mix of controls to
achieve
and
attain
the
National
Ambient Air
Quality
Standards
(“NAAQS”).
As
a
result,
IERG argues that none of the Clean Air
Act
rules
are
required
rules
pursuant
to
Section
28.2
simply
because the rule will be
a part of
a State
Implementation Plan.
IERG argues that for
a rule under the Clean Air Act to become
a
required rule,
for purposes of Section 28.2 of the Act, the rule
must be adopted by the Board,
submitted to USEPA, and disapproved
as a SIP revision for a particular deficiency.
The Board agrees that the Agency’s motion contains arguments
which
should
have
been
timely
raised
in
its
response
to
the
Industry Group’s motion.
The
Board has already determined that
under
the procedural
rules
the Agency’s two—paragraph
response
constituted
its complete response to the motion.
To the extent
that
the Agency
now raises
new
arguments,
i.e.,
arguments not
raised
in
its response
to the Industry Group motion,
the Board
finds
these
arguments
waived.
Arguments
cannot
be
raised
on
reconsideration that were not offered during consideration of the
underlying Order, without specific justification for the
failure
to raise those arguments earlier.
In
this
case,
the Agency ha:~
failed to provide such justification.
However, even i.~the Aqericy1s arguments were not found to be
110—07
8
waived,
the Board would still decline to reverse its February 8,
1990 decision.
As the Board discussed at length in its March
16,
1990 Second Notice Order,
Reasonably Available Control Technology
(“PACT”) rulemakings are extraordinary rulemakings in that a state
is
to
decide
for
itself
what constitutes
reasonably
available
control technology based upon the circumstances found within
its
borders.
Then the state’s
decision,
i.e.,
its regulations,
are
submitted to USEPA for approval as part of the State Implementation
Plan.
The Board agrees, to a certain extent, with IERG that the
Section 28.2 required rule proceeding does not lend itself well to
the
PACT rulemaking
requirements
of
the
Clean
Air
Act-—simply
because PACT rulemakings are inherently state decisions.
Thus,
in
the first instance, there
is no clear federal requirement except
that the State adopt rules which it believes to be PACT.
In this
case,
the State of Illinois has already adopted Generic and SOCMI
rules that it believes to be PACT for Illinois.
Those rules were
adopted in R86—l8 and R86—39, respectively, in late 1987 and early
1988.
Further, those rules were submitted to USEPA as
revisions
to the SIP.
However, when the Agency proposed this rulemaking on
September
29,
1989,
USEPA
still
had
not
acted
upon
those
SIP
submittals.
In other words,
although USEPA had had the rules for
approximately a year and a half,
it had not proposed to approve or
disapprove the rules,
nor had
it formally adopted an approval
or
disapproval of those rules.
However, on December 27,
1989, at the
same time that USEPA published its notice of proposed regulations
constituting
a
federal implementation plan for Illinois,
54
Fed.
Reg.
53080, USEPA also published a notice of proposed disapproval
of Illinois’ Generic and SOCMI
rules,
and thereby began
a public
comment period.
To date, USEPA has still not proceeded to final
adoption of those disapprovals.
Thus, Illinois’ Generic and SOCMI
rules
have not been officially
disapproved
as yet.
Given
this
particular state of affairs,
the Board does not believe that the
Generic
and SOCMI
rules
can be
said
to be required until USEPA
officially adopts a disapproval of them as SIP revisions.
As a result, the Board believes its February 8,
1990 decision
is correct.
The Agency’s motion to reconsider is granted; however,
upon reconsideration,
the Board affirms its Order of February
8,
1990.
IT IS SO ORDERED.
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was adopted
on the
~/~(
day of
~
.
..,
,
1990, by a vote of
~
~
/
,,-.
7
Dorothy M. Gunn,
Clerk,
Illinois Pollution Control Board
110—08
