ILLIN~)I3PDLUJTION~

OO~1TROt~

~O’~RD

January

IN THE M1~TTEROF:

)

PROPOSED ~1ENDMENTS TO

)

R86—36

35

ILL.

kDM.

CODE

215.204,

)

HEP~VYDUTY OFF—HIGH~hYVEHICLES

ORDER OF TIE BOkRD

(by R.

C.

Flemal):

This matter comes before

the Board upon the January 12,

1987, motion

of

the Illinois Environmental Protection agency

(“agency”)

to

sever

the amendment originally proposed by General

Motors Corooration, Electro—~4otiveDivision

(“EMD”)

in the R85—51

proceeding from the regulatory proposal

filed by the ~.gencyin

this

9ocket.

The

Boari consoli a~e~3

the E’~D‘orDposal with the

1~gency’sproposal

in this proceeding by Order

of December 18,

1~3S, in the matter

of R85—51.

EMD file3

a resoonse t~the kgency’s motion on January 20,

1987.

EMD encourages

the Board

to affirm its December

18,

1986,

Orier

an3 al1ege~that severance wouli

“create unnecessary

duplication of

testimony and constitute

a waste of

the Board’s

resources”.

The

kgency contends that severance

is necessary

in this

instance

in order

to not unduly jeopardize United States

Environmental Protection ~gency (“U3EP~”)a~orovalof the rules

promulgated by the Board

as

a result of

the agency proposal,

if

in fact the 3oar3

acts

in

that

manner.

~s exolained by the

~gency

in

its motion:

~ter

oromulgation,

the

gency

sub’nits

the

rules

as

a revision of the Illinois State

Imolementation Program

(31P).

USEP~

can

aoorove

or disapprove of

the SIP revision

in whole or

in

part.

USEPk cannot,

however disaooro~reof oart of

SIP revision

if that partial disapproval would

make

the

rule more stringent than the State

intended.

Bethlehem Steel

Corp.

v. Gorsuch 742

F.2d 1029

(7th Cir.

1934).

If

a oartial

disapproval

is deemed appropriate, but such

dissooroval would

render

the rule more stringent

than intended by the State, USEP~must disapprove

the rule

in its entirety.

In this case, except for the EMD amendment,

the orooosed

rule follows

the CTG on the subject

and will likely be approved as

a SIP revision.

The

EMD

amendment,

on

the

other hand,

constitutes

a

relaxation of the standards contained

in the

CT~....

It

is unlikely that USEPk ~ii1lagree

to

a

rule which deviates considerably from the CTG on

75-149

---

—2—

the side of relaxation.

If USEP~, in fact, does

not ap~roveof the E~Damendment,

it cannot

approve the remainder of the rule and disapprove

the amendment.

Such partial

aoproval would

have

the effect of making the plants that would be

s~ibje:tto the more relaxed standard

in the

amendment subject to the general rule, thereby

making

the rule more stringent than intended by

the State.

That result

is specifically prohibited

by Bethlehem Steel

and would

thus force USEP~to

disapprove

the rule

in its entirety.

The Board originally consolidated the EMD and agency

proposals

in order

to allow

for the convenient,

expeditious, and

complete determination of all claims.

The

3oar-3 remains

convinced

that these desirable goals can best be met through

consolidation of

the t~oorooosals,

~oecauseconsolidation allows

the proposals

to be considered together

at hearing.

Therefore,

the Board will not

at this time sever

the EMD oroposal

from this

docket.

~fter all hearings

in

this matter have been comolete3,

the

Board will consider severing the EMD proposal

so that the Board’s

decision regarding

it might

issue se~aratelyfrom that concerning

the agency proposal.

The ~tgencymay renew

its motion at

that

time.

The agency’s January 12,

1987, motion

to sever

is denied.

IT IS SO ORDERED.

I,

Dorothy M.

Gum-i,

Clerk of the Illinois Pollution Control

Board, hereby certif.~that the above Order was adopted on

the

.22’~

day

of

~

,

1987, by

a vote of

________

-

~—i

~

/~—~

‘—,L~A~~

Dorothy M.

Gun~n, Clerk

Illinois Pollution Control Board