ILLINOIS POLLUTION CONTROL BOARD
May 15, 2003
IN THE MATTER OF:
PROPOSED AMENDMENTS TO:
PUBLIC PARTICIPATION RULES IN 35
ILL. ADM. CODE 309 NPDES PERMITS
AND PERMITTING PROCEDURES
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R03-19
(NPDES Rulemaking)
DISSENTING OPINION (by T.E. Johnson):
I respectfully dissent from the Board's order issued today in this matter. I believe the
Board should have granted the motion for a third hearing prior to deciding whether or not to
adopt the proposal for first notice under the Administrative Procedure Act (5 ILCS 5/100
et seq
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(2002)).
Of primary concern are the proposed language changes offered by the Illinois
Environmental Protection Agency (Agency) in a public comment filed on May 1, 2003. A third
hearing is important to hear testimony and cross-examine Agency witnesses regarding proposed
language changes offered by the Agency. Holding a third hearing prior to first notice would not
unduly delay this proceeding, and would, in fact, allow the Board to make a more reasoned
determination in any first-notice order.
The stated purpose of the Board’s rulemaking hearings is to gather information and
comments to guide the Board in its rulemaking process. 35 Ill. Adm. Code 102.100. The
process customarily allows for full record development. As a result, the Board generally
attempts to receive all admissible information in its rulemaking proceedings. No material
prejudice would have resulted if the Board had granted the motion for a third hearing, and the
Board would have the benefit of testimony and cross examination on the Agency’s proposed
modifications. I find it ironic that the proponents of a proposal designed to expand public
participation are so vigorously opposed to additional public participation in this instance.
Although I am heartened by the majority’s decision to hold at least one additional hearing
if the Board proceeds to first notice in this matter, I see no reason not to hold that hearing at this
time.
For these reasons, I respectfully dissent.
Thomas E. Johnson
Chairman
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the above
dissenting opinion was submitted on May 15, 2003.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board