ILLINOIS POLLUTION CONTROL BOARD
June
7,
1990
IN THE MATTER OF:
RACT DEFICIENCIES,
)
R89-16(B)
AMENDMENTS TO 35
ILL.
ADM.
)
(Rulemaking)
CODE
201,
211 AND 215
ORDER OF THE BOARD
(by J.D. Dumelle):
This matter comes before the Board upon its own motion.
On
September
29,
1989
the Illinois Environmental Protection Agency
(“Agency~) filed a proposal to amend
35
Ill. Adm.
Code
201,
211
and 215.
Pursuant
to the Board’s Order of February
8,
1990,
these amendments were divided into two categories
—
Subdocket
(A)
and Subdocket
(B).
Subsequent
to notice requirements being met
in conjunction with the Joint Committee
on Administrative Rules
(“JCAR”) approval,
the Board,
in its Final Order of May 10,
1990,
adopted Subdocket
(A).
Insofar
as Subdocket
(3)
is concerned,
the Board
is of the
opinion that:
(1) the proposed amendments are being promulgated
by the USEPA and would therefore be duplicative;
and
(2)
for the
aforesaid
reason,
the amendments may very well
be moot.
In
fact,
the language contained
in the Wisconsin
v.
Reilly settlement
agreement clearly places the burden of adopting these
regulations
upon
the USEPA rather
than Illinois.
For example, paragraph
24,
Section
(b)
of
the settlement agreement states:
Illinois agrees
that
it will submit
to EPA
some or all of the reasonably available
control
technology
(“RACT”)
rules and RACT
rule
improvements specified
for Illinois
in
Exhibit
B.
(Emphasis
Added) Wisconsin
v.
Reilly
Agreement
pg.
12)1
As noted
in
this Board’s order
of February
8,
1990,
which
rules,
if any,
that were proposed
to the Board
by the Agency were
entirely discretionary.
As this was entirely
a discretionary
decision by the Agency and
as
the Agency has not proposed all
of
the rules specified
in Exhibit
B,
dismissing Subdocket
(B)
will
simply place them in the same position as the other
rules
the
tJSEPA is promulgating.
Accordingly,
the dismissal of Subdocket
(3) will
in
no way offend
the
intent of
the settlement agreement.
Equally
significant,
the Board’s February
B,
1990 order
noted that:
1 I2—31~)
—2—
the rules which Illinois submits to USEPA
must be properly adopted under the
Environmental Protection Act as well as the
Administrative Procedure Act.
The Board does
not believe that the amendments proposed to
the Generic rule and SOCMI rule
(Subdocket
(B)) will be properly adopted under Section
28.2, and the Board wants all concerned to be
aware of this determination as soon as
possible.
(IPCB Order,
2/8/90)
Furthermore,
the February
8,
1990 Board Order held that:
in light
of
the
timeframes associated with
these proposed amendments
and
in light
of
the
federal parallel processing,
the Agency may or
may
not
wish
to
re—propose
the Subdocket
(B)
rules.
The
Agency
is
hereby
instructed
to
inform
the
Board
on
or
before
February
20,
1990, whether
or not
it
wishes to proceed with
the
Subdocket
(B)
proposed
rules
under
the
Section
28
rulemaking
process,
and
if
so,
whether
or not
it believes that an EcIS should
be done.
This request was repeated
in the Board’s March
16,
1990 Second
Notice Order.
To date,
the Board has yet
to be notified by the
Agency
in this regard.
Consequently,
insofar as all
of the RACT rules and RACT
rule
improvements specified for
Illinois in Exhibit
B will continue
to
be promulgated on the federal level,
as dictated by the
settlement agreement
in Wisconsin v.
Reilly,
the dismissal of
Subdocket
(B)
from the Board’s jurisdiction will have no effect
upon whether
or
not any rules
will
be promulgated on a federal
level.
Therefore,
this rulemaking will
be subject
to dismissal
on June
21,
1990 unless
the Board
is notified by the Agency that
it intends
to proceed with the amendments contained within
Subdocket
(B).
IT IS SO ORDERED.
I, Dorothy M.
Gunn, Clerk
of
the Pollution Control Board do
hereby ,~rtifythat
the above Order was adopted on the
7~
day
of
_______________,
1990,
by a vote of
7—o
~
Dorothy M.~nn, Cl’erk
Illinois Pollution Control Board
112—32fl