ILLINOIS POLLUTION CONTROL BOARD
MP~RCH 9,
1989
IN THE MATTER OF:
)
AMENDMENT TO 35
ILL.
ADM. CODE
)
P88-22
SECTION 304.301, EXCEPTION FOR
)
AMMONIA NITROGEN WATER QUALITY
)
VIOLATIONS
)
ORDER
OF’
THE BOARD
(by
P.
C.
Flemal):
On February 6,
1989,
the Citizens Utilities Company of
Illinois
(“Citizens’1)
filed
a Motion
for Rehearing
in this
proceeding.
In
its Motion, Citizens claims
(1)
that
the P88—22
rulemaking
proceeding has been procedurally deficient, depriving
Citizens of sufficient notice and opportunity to comment on
the
proposed amendments, and
(2)
that the small discharger exemption
contained in
35 Iii. Mm.
Code 304.301(a)
is still necessary.
Citizens moves the Board
to grant rehearing
“for the purpose of
vacating
its January
5,
1989
Second
Notice) Opinion and Order
and enter an Order
reinstituting
thel
Section 304.301(a)
small
discharger
exemption.”
The Board withheld the submission of this
rulemaking
to the Joint Committee on Administrative Rules pending
disposition of this motion.
On February 24,
1989,
the Illinois Environmental Protection
Agency
(“Agency”)
filed
its response.
On February 28,
1989,
Citizens filed
a reply
to the Agency’s response.
The Board
finds
that under
its procedural
rules,
a moving party does not have the
right
to
reply to
a response, except as permitted
by the Hearing
Officer
or Board
(35
Ill. Mm.
Code 103.140(c)).
The Board
denies Citizens leave
to file its reply.
In addition,
the Board
notes
that
it chooses
to address Citizens’
motion, even though it
was filed
after
the time
for filing comments and motions
under
the 13oard~sprocedural
rules
(35 Ill.
Adm.
Code 102.163 and
102.200(a)).
The Board emphasizes that
it discourages
the recent
practice of filing post—second notice motions.
It
is necessary at
the onset of
the Board’s discussion of
these matters
to relate some key aspects of the procedural
history of the P88—22 proceeding.
On January 21,
1988 the Board
issued
a Peguest
for Public Comment
in P88—1, Miscellaneous
Amendments to 35 Ill. Mm.
Code.
The Board requested comment
upon,
inter alia,
the, following proposed change:
Repeal of Section 304.301.
Section 304.301 deals
with exceptions
for ammonia nitrogen water quality
violations.
All
of the provisions of the Section
terminate after July
1,
1988.
Therefore, after
that
97—159
—2—
date the entire Section may become superfluous.
The
proposal
is therefore to initiate repealing of this
Section now, such that at some date after July
1,
1988,
when the instant omnibus rulemaking
is
completed, the surpiusage may be removed from the
regulations.
Request
for Public Comment
at
4
Shortly after
its adoption by the Board,
the Bequest
for
Public Comment was mailed
to various persons with an interest
in
the Board’s rulemaking proceedings,
including Citizens’
attorney.
The Board allowed over three months
for comment
on the
various changes suggested
in R88—1.
No comment was received from
Citizens regarding the repeal
of Section 304.301, or
any other
part of P88—i,
during that
time.
The only comment regarding
Section 304.301 received by
the Board during that
time was from
the Agency.
The Agency discussed,
inter
alia,
Section
304.301(a):
Paragraph
(a) was adopted
to allow existing small
sources additional
time to provide
for nitrification
in
a cost—effective manner.
Typically this is
accomplished
as the need
for additional
treatment
capacity or normal upgrading arises.
This provision
is no longer necessary,
as sufficient time has passed
for such sources
to have met their needs.
The Agency, however,
proposed
a three year extension of the
ammonia nitrogen winter exemption contained
in Section
304.301(b).
By its terms,
the exemptions contained
in Section 304.301
expired on July
1,
1988
(See Section 304.301(d)).
On August
18,
1988,
the Board
sent
the Agency’s proposed
revisions
to 304.301
to First Notice
in P88—22.
This action was
consistent with provisions of Res 88—1.
As stated
in its Order,
the Board believed that
the Agency’s proposed amendments
were
more properly considered
in
a dedicated docket.
The Board
also
discussed
the Agency’s comments
in the First Notice Opinion and
Order
in P88—1,
stating:
The Board believes that
the Agency’s proposal
to
extend
the deadline may have merit.
However,
the
Board believes that
this proposal
is of sufficient
substantive content
that
it would
be best considered
within
a dedicated docket.
Accordingly, on August
18,
1988
the Board by separate order and docket sent
this portion of the Agency’s recommendation
to first
notice.
P88—1, Sept.
8,
1988, Slip 0p.
at
3.
97—160
—3—
Again,
various persons were sent copies of the Board’s Orders
in
P88—i
and R88—22,
including Citizens’
attorney.
Although the drafting of the proposed regulation as
it was
sent
to First Notice
in P88—22 may have indicated that the new
proposed termination date would
be applicable
to both subsection
(a)
and
(b), the text of the Agency’s comment was quoted at
length by the Board.
The quote exclusively discussed the
exemption contained
in subsection (b).
Even
if Citizens could
claim
that it had no problem with the changes as proposed at that
point,
it
is reasonable that during subsequent hearings the Board
would examine the entirety of Section 304.301.
Citizens chose
not
to participate at this point.
Two hearings were held
in this
proceeding,
with over
a month allowed
for comment.
All hearings
were properly noticed pursuant
to the Board’s procedural
rules
and the Environmental Protection Act (“Act”)
(35
Ill. Mm.
Code
102.122 and
Ill.
Rev. Stat.
ch.ill—l/2, par.1028
(1987).
As
stated
in the Board’s Second Notice Opinion, the hearings were
attended by representatives of the Agency,
the Illinois
Association of
Sanitary Districts,
and the Department of Energy
and Natural Resources.
No one present
at either hearing voiced
any problem
with the expiration of the exemption contained
in
subsection
(a).
The Agency’s intent
to extend only the exemption
contained
in subsection
(b)
and not
(a) was discussed at hearing
(P.
11/4/88 at 88),
and by the Board
in
its Second Notice
Opinion, where
the drafting of the proposed regulation was
changed
to effectively reflect that intent.
Information was
presented which
the Board examined and
the Board
found merit with
the Agency’s proposed changes.
(See,
P88—22 1/5/89 Slip Op.)
It
is apparent from the procedural history as stated above
that Citizens was included
in this proceeding through various
mailings from the inception of this proceeding
in the P88—1
docket.
It
is noteworthy
that
in P88—I, when the Board
originally proposed deletion of Section 304.301
in its entirety
due
to its impending expiration,
Citizens chose not
to comment.
This motion
is the first instance
in which Citizens has voiced
any desire to become involved
in this proceeding, despite many
earlier opportunities
to do
so.
The Board
finds that Citizens
was afforded adequate notice of the Board’s action and given
sufficient opportunity to comment under the Board’s procedures,
the Act,
and the Administrative Procedures Act.
Citizens’ Motion
for Rehearing
is denied.
IT IS SO ORDERED.
97—.161
—4—
I,
Dorothy
M.
Gunn, Clerk
of the Illinois Pollution Control
Board, hereby certify that the above Order was adopted on
the
~
day of
7o-~
,
1989,
by a vote
of
7-c
~1~7
12).
Dorothy M.~unn, Clerk
Illinois P&llution Control Board
97—162