ILLINOIS POLLUTION CONTROL BOARD
September 8,
1988
IN THE MATTER OF:
PROPOSED AMENDMENTS TO
)
R87—37
TITLE 35,
SUBTITLE
F:
PUBLIC WATER SUPPLIES
CHAPTER 1:
POLLUTION
CONTROL BOARD
(PART 608)
ORDER OF THE BOARD
(by B.
Forcade):
On May 5,
1988,
the Chicago Association of Commerce and
Industry,
the Illinois Fire Chiefs Association,
the Illinois Fire
Inspectors Association, the Society of Fire Protection Engineers,
the National Fire Sprinkler Association,
and the Alliance of
American Insurers collectively (hereinafter “Petitioners”)
filed
Proposed Amendments to Part 608.
This filing requested public
hearings,
but did not submit a petition signed by at least 200
persons.
See
35
Ill.
Adrn.
Code 102.121(a)
(1987).
The
Petitioners intended this as an alternative to the earlier
proposed amendments to
this Part filed December 28,
1987
by the
Illinois Environmental Protection Agency
(hereinafter
“Agency”).
The Board conducted public hearings on the Agency’s
proposal on May 25 and 26,
1988.
The Petitioners and various
other members of the regulated community and general public
participated in both days of public hearings.
By its Agency Response of June 15,
1988,
the Agency objects
to consideration of the Petitioners’ proposal as
“a formal
‘counter—proposal,’” and would have the Board consider
this
document as a public comment.
The Agency asserts the
Petitioners’
filing
is untimely.
The Petitioners filed a Reply
on June 27,
1988,
together with
a motion
to file
instanter.
The
Petitioners expressed concern that consideratioriof their
proposal “only as a public comment” would lead to a disregard for
this document by the Board.
They point out that they are at
liberty to file
a separate petition
for rulemaking under
a new
docket, which they assert would “create inefficiency.”
The
Petitioners believe filing
their proposal as part of this docket
is “the most direct and efficient route
to present their
concerns.”
The Board
initially notes that it has delayed dealing with
the Petitioners’
proposal and the Agency response
for over one
month.
The Board
received verbal representations that the
Petitioners and the Agency would meet on or about July 28,
1988
in an attempt
to seek some consensus.
These included an
indication that the Agency would shortly thereafter file an
amended proposal for rulemaking.
No document on the record
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—2--
reflects that this occurred.
This delay has suspended the
closing of the merit portion of the rulemaking.
Section 28
of the Environmental Protection Act,
Ill. Rev.
Stat.
ch.
ill 1/2, par.
1028
(1988),
and Section 102.120 of the
Board’s procedural rules,
35 Ill. Mm.
Code 102.120
(1987),
provide that any person may file a proposal
for
rulemaking.
This
Section of the Act and Section 102.121(a)
of the Board’s rules
both provide for public hearings on
a rulemaking proposal
submitted by the public accompanied by
a petition bearing 200
signatures.
They also vest discretion
in the Board
in the
conduct of its public hearings.
Therefore,
it is wholly within
the discretion of the Board how it will dispose of the
Petitioners’
proposal.
The Board
finds that the Petitioners’ proposal
is not
plainly devoid of merit,
it
is supported by an adequate statement
of
reasons within
its context,
and
it did not concern a matter on
which
the Board had conducted public hearing within
the six
months prior
to
its date of filing.
Rather
than docket the
proposal with an independent number and consolidate
it with this
matter,
the Board will consider the Petitioners’
and
the Agency’s
proposals
together.
No prejudice or
inefficiency would result at
this time.
The Board will not, however, set this matter for
additional hearings at this time because the public hearings held
21 days subsequent to the filing of the Petitioners’ proposal did
consider this subject matter.
Further,
no person has
subsequently requested additional hearings.
The Board notes that it is Board
rules which now undergo
revision, and
it
is wholly within the discretion of the Board how
it proceeds
to decision.
The Board also observes that the status
of the Petitioners’ proposal
as
a rulemaking proposal or
a public
comment
is immaterial
in this instance and at this time.
The
Board will consider
a public comment for what it offers, and the
Board will decide on rules and regulatory language that
is best
supported by the record and which best suits
the apparent
needs.
This
is notwithstanding the language of the original
proposal
or the status of
the chosen language “only as a public
comment.”
Finally,
it
is
to be preferred
that members of the affected
public submit “counterproposals,” rather than mere assertions of
dissatisfaction with
a proposed rule.
Alternative
regulatory
language is often the best form of criticism.
It certainly gives
the Board more with which to work, and
in this proceeding
it aids
the Board
in assessing the substance of both the Agency’s and
Petitioners’ positions.
It will aid the Board
in selecting
a
regulatory structure that the Board
feels is most acceptable.
The Petitioners’ proposal
of May
5,
1988
is accepted as
filed.
The Board will schedule no additional hearings regarding
92—242
—3—
Part 608 at this time.
The merit portion of this proceeding will
close September 23,
1988.
Any person desiring
to supplement this
record
is hereby directed
to submit any filings prior
to
September
21, 1988
for consideration at the September
22,
1988
Board meeting.
The Board will await notification from the
Department of Energy and Natural Resources before scheduling any
additional activity
in this matter.
IT
IS SO ORDERED
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify th
th
above Order was adopted on
the ~
day of _______________________,
1988, by a vote
/L~
Dorothy M. G~n, Clerk
Illinois Pollution Control Board
92—243