ILLINDIS POLLUTION CONTROL BOARD

April

10, 1986

IN THE MATTER OF:

)

SITE—SPECIFIC RULEMAKING

)

R85—15

FOR THE SANITARY DISTRICT

)

OF DECATUR,

ILLINOIS

CONCURRING OPI~’1ION (by~ R.C.

Flemal,

J.D.

Dumelle,

and

B..

Forcade):

Though we agree with the majority that this matter should

proceed

to Second Notice, we find it unfortunate that

it does so

without the continued inclusion of the “sunset provision”.

This

provision was supported by the Board

in the First Notice Opinion

because

the characteristics of this proceeding are such that

the

use of

a sunset provision

is particularly warranted.

The majority notes,

in discussing

the need

for

a sunset

provision here,

that “The Board

has not retreated from its

concerns expressed

in the First Notice Opinion.....”

We would

assert that such

a

retreat unquestionably has occurred, and that

the reasons cited by the majority

for removing the provision are

in

no way of sufficient weight

to justify such

a retraction.

The majority Opinion notes

four factors which ostensibly

support deletion of

the sunset provision:

The imolications of,

and rationale for,

a 10 year

sunset provision

as

it would

relate

to Decatur’s

circumstances would better have been raised earlier

and

aired

at hearing.

Additionally,

the Board’s rationale

supporting

“sunset”

in large measure

focused on

concerns applicable generally to site—specific

regulations

(and arguably to general regulations),

rather

than concerns special

to the Decatur

situation..

Next,

the effect of specific

sunset

language on local bond issues

is a matter

that needs

further consideration.

Finally,

the Board,

on balance,

does not feel that a sunset provision is so essential

in Decatur’s case,

given other review benchmarks,

as

to

warrant delaying the decision in order

to hold further

hearings (footnote omitted).

In response,

it admittedly would have been better

to have

raised

at hearing “(T)he implication

of,

and rationale for”,

a

sunset provision

in this proceeding.

Hindsight is commonly

keener

than foresight..

Nevertheless,

it

is irrefutable

that the

scope of action

taken

by the Board

in any given proceeding

is not

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limited solely to the matters discussed

at hearing

in that

proceeding.

The Board has the authority and duty

to impose

conditions,

sua sponte,

on any relief

it grants.

Moreover,

to

hold otherwise,

or

to even imply otherwise, would effectively

incapacitate the Board by requiring additional hearings

to be

held in

many,

if not most of its cases and proceedings..

One

is also tempted

to draw the

inference from the majority

view that because the issue of sunsetting was not discussed

at

hearing,

the decision to propose

a sunsetting provision in the

First Notice Rule was

somehow faulty by virtue of

“surprise”.

Such implication

can certainly not have been intended by the

majority..

Both the Agency and Decatur

had,

and utilized,

the

opportunity to address the matter

of

sunsetting during the

comment period following First Notice.

Additionally, both the

Agency and Decatur had the opportunity

to request an additional

hearing

if

they perceived

the need to do

so,

They did not so

request.

Further,

though

the

majority correctly points out “(T)he

Board’s

rationale supporting “sunset”

in large measure focused on

concerns applicable generally

to site—specific regulations

(and

arguably

to general regulations),

rather

than concerns special

to

the Decatur situation”

(footnote omitted), this does not negate

the applicability of

a sunset provision in this proceeding.

The

majority does not attempt

to deny the usefulness

and/or

desirability of sunsetting

as

a concept.

In

fact,

in evaluating

the justification for

a sunset provision

in this matter,

the

majority Opinion goes so far

as

to say that:

The Board has not retreated from its concerns expressed

in the First Notice Opinion,

including loss of

justification with

time,

inequitable future

distribution of the spoils and burdens of environmental

regualtion,

assignment of

the burden of justification

for exceptions

to rules, evolution of treatment

technologies and understanding

of appropriate

environmental controls, and obsolescence of rules.

Taken together,

these statements seem to indicate

that the

majority as a whole accepts the rationale behind

sunsetting..

The

majority deleted the sunset provision from this proceeding,

however,

because of what the majority saw as a lack of discussion

in the First Notice Opinion geared

to Decatur specifically.

That

position is somewhat illogical, however, given

that the majority

has indicated its general acceptance of the sunset concept.

By

accepting the concept (which

is the larger universe),

the

majority implicitly accepts

the extension of that concept

to

specific applications..

The majority, then,

should have logically

had no

trouble moving from the general

to

the specific, but

nevertheless

did..

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—3—

It

is also incorrect for

the majority

to conclude that the

First Notice Opinion

focused largely on general

concerns

regarding sunsetting,

rather than on rationale specifically

directed

to the Decatur

situation.

To the contrary,

the First

Notice Opinion very clearly noted:

An additional matter

of concern to the Board

is the

permanency of the rule as offered by the Proponents.

It

is readily possible to imagine situtations where

a

rule fully justifiable and rational

at

a given point

in

time may not continue

to be

so

at

a future

date.

In

the instant matter,

but by no means peculiar

to

it,

would

be a situation where future dischargers

to the

Sangamon River

find that their increment

of discharge

induces DO violations

in the River,

but that the

violations would not exist

in the absence

of the

exception granted

to the District.

The record does

support the conclusion

that the District’s exception

would

utilize

a portion of the River’s capacity which

would then not be available

to a future

user..

This passage, when added

to preceding discussion and

to the

repeated reference to Decatur and the Sangamon River

in the

discussion of the sunsetting provision,

clearly indicates

that

it

was the Board’s opinion that the need for

a sunsetting provision

stemmed from the specific conditions at Decatur and along

the

Sangamon River..

Only after

the establishment of this

fact was

the issue of the general philosophy and applicability of

sunsetting addressed

in the First Notice Opinion.

Regarding the majority’s contention that “(T)he effect

of

specific sunset language on local

bond issues

is a matter

that

needs further

consideration”,

any concern given to sunsetting’s

impact on bond issues

is

a matter

of pure speculation..

In its

First Notice comments,

the Agency noted

that

a ten year limit on

the relief granted “could conflict” with the marketability

to

fund municipal construction work.

Such bare assertion seems

hardly worthy of the lofty status

to which

the majority elevates

it.

In addition,

if

this issue was

of realistic concern,

one

would have expected Decatur

to have elaborated on this point

in

particular

in its First Notice

comments..

Decatur,

and not the

Agency,

is the entity which would endure real hardship

if

inclusion of

a sunset provision were

to adversely impact

the

saleability of

the city’s

bonds.

However,

Decatur did not use

its First Notice comment opportunity to elaborate on this

issue..

The majority’s final

note, that “(A) sunset provision

is

(not)

so essential

in Decatur’s case,

given other review

benchmarks,

as

to warrant delaying the decision

in order

to hold

further hearings” has already been addressed

through the prior

discussion.

Should

a

sunset provision have been included here,

no

further hearings would have been required

(see

above)..

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Furthermore,

it

is irrational and possibly irresponsible for the

Board

to forego use

of the sunset provision as

a tool, while

simultaneously contending

that it has not retreated from the

“concerns”

which would have been addressed by

the inclusion of

just such

a provision.

It would appear

that those two positions

are contradictory and mutually exclusive.

For the reasons as expressed above, we concur.

on’á’ld

.1

~Üb~rcade\

I, Dorothy M.

Gunn, Clerk

of the Illinois Pollution Control

Board,

høreby certify that ~he above Concurring Opinion was filed

on the/f~~day of

Z7~’L~_~~

,

1986..

Dorothy

M.

G nn, Clerk

Illinois Pollution Control Board

69-220