ILLINOIS POLLUTION CONTROL BOARD
October 23,
1986
IN THE MATTER OF:
VOLATILE ORGANIC MATERIAL
)
R82-14
EMISSIONS FROM STATIONARY
)
Dockets A &
B
SOURCES:
RACT
III
)
INTERIM ORDER OF THE BOARD
(by
B.
Forcade):
This matter comes before the Board on an October
2,
1986,
Illinois Environmental Protection Agency (“Agency”) motion
for,
reconsideration of the September
11,
1986,
Interim Opinion and
Order separately docketing
the Agency’s proposed redefinition of
volatile organic material
(“VOM”)
from the R82—14 docket.
Reconsideration
is granted and
the Board’s Interim Opinion and
Order of
September 11,
1986,
is affirmed.
The Agency’s first argument on reconsideration states that
the Board’s action
is “clearly violative of its own procedural
rules and due process and
fundamental
fairness principles,”
as
the Agency had
inadequate notice
and opportunity to brief the
issue,
that
the comment period was still
open,
that the Agency
had planned
to submit comments on this issue,
and that due
process requires “immediate notification from the Board
to
the
attorneys involved”
in the circumstances.
In response, the
Board believes its action was prope:, that
adequate notice was provided, and that no due process,
fundamental
fairness or procedural
rule requirements were
violated.
The action taken on September 11,
1986, was noticed on
the agenda and thoroughly discussed at the August 28,
1986,
Board
meeting.
Both the August 28,
1986,
and the September 11,
1986,
meetings were regularly scheduled and
noticed, were open
to
the
public and were audio—taped by an agent of the Agency who
prepared unofficial minutes of each meeting
for use by the
Agency.
These minutes are
filed with the Board.
The Board sent
all persons on the regulatory notice list
a copy of the order via
first
class mail on September 11,
1986.
The Agency assumes that the Board’s September
11,
1986,
Order was prompted by comments from the Printing Industry and
that
it was inappropriate to take the action at issue before the
close
of
the
comment
period.
In
response,
the
Board
restates
that while
the Printing
Industry
had
raised
concerns
about
the
scope
and
impact of the Agency’s proposal,
the action was taken
on the Board’s own motion.
The record
of the April
1
and
2,
1986,
hearings reflects the
Board staff’s concerns about the
scope
and
impact of
the Agency’s proposed redefinition of “VOM”
from its inception.
Furthermore, while
it
is true that the
73-423
—2—
comment period was still
open,
the scope of the comments were
specifically limited by the hearing officer
to be responsive
to
previous comments (R82—14,
Hearing Officer Order, July 23,
1986).
The Agency,
itself,
had requested this additional time
period
for
the
specific purpose of reviewing and commenting on a
stack test report from World Color Press
(R82—14,
Hearing Officer
Order, August
25, 1986).
The record
in this proceeding clearly
illustrates that the participants have had more than adequate
notice and opportunity to comment and brief issues (R82—14,
Hearing Officer Orders, dated 5/29/86, 6/24/86, 7/23/86,
8/25/86,
documenting
requests for extensions of comment period by both the
Agency and the Printing Industry).
Whether or not
a participant
is cognizant of the notice provided and takes advantage of these
comment opportunities does not raise due process or fundamental
fairness concerns.
The Agency makes no specific citation
to the
Board’s procedural rule allegedly violated.
As
a final
note regarding
the issues of notice and
opportunity to comment, the Board has granted reconsideration
and
by so doing
has reviewed
the Interim Opinion and Order of
September
11,
1986,
and
in light of the Agency’s position,
as
expressed
in
its motion for reconsideration.
The Agency’s second general argument on reconsideration,
to
the
extent
it
can
be
deciphered,
is
that
“separation
is
simply
not possible as no record will then remain from which
to make
a
decision on these rules.”
The Board
is confused by this argument
but will attempt
to respond or clarify the
issue of the record.
The record
in R82—l4 will remain unchanged
and
intact.
The new
docket assigned
for the Agency’s proposed redefinition of
“volatile organic material” currently contains nothing except the
Board’s Interim Opinion and Order of September 11, 1986,
separating
out the proposed redefinition for R82—14 and, thereby,
creating
a new docket,
R86—37.
It will be the Agency’s burden,
as
proponent,
to
create
a
sufficient
record
for
Board
action
on
the
proposed
redefinition.
Through
the
notice,
hearing
and
comment process, the
impact of the Agency’s proposal will be
ascertained.
The Agency,
in
its motion
for reconsideration, states that
it always intended to regulate ink oils, that the printing
industry knew this,
and that
the
EcIS evaluated the control of
ink oils.
The Board does not disagree with these representa-
tions.
However, this argument does not address the reasons why
the Board separately docketed the Agency’s most recent proposal:
the Agency’s proposal changes,
in
a broad manner,
a fundamental
definition
found throughout Part 215, potentially causing
unanticipated
impacts.
Because of the nature of the proposal
and
the
unknown impact,
notice, hearings and economic evaluation have
to
be performed.
Thus,
a record
for decision which will document
the impact must be created.
The Board has chosen
to docket this
matter
as R86—37.
The
issues regarding
the heatset web offset
73-424
—3—
printing category will
be resolved
in the R82—14 docket.
For
the
above
stated
reasons,
the
Board
reaffirms
its
Interim Opinion and Order
of September 11, 1986,
in
the above—
captioned matter.
IT
IS SO ORDERED.
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby
certif
~that
the
above
Interim
Order
was
adopted
on
the
,3~L4~
day
of
____________,
1986,
by
a
vote
of
___________
Ill
Control Board
73-425