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)
     
    ORDER OF THE BOARD (by G.T. Girard, M.E. Tristano, and D.C. Karpiel):
     
    There have been several motions filed in this rulemaking. First, on March 31, 2003, the
    Illinois Environmental Regulatory Group (IERG) filed a motion for a third hearing in this matter.
    On April 14, 2003, the Environmental Law and Policy Center of the Midwest, Illinois Chapter of
    the Sierra Club, Prairie Rivers Network, and 225 citizen petitioners (collectively the proponents)
    filed a response (Resp.) in opposition to the motion for a third hearing. No other responses have
    been received. Second, on April 29, 2003, the Board received a motion for leave to file a reply
    from IERG and a reply (Reply). Third, on April 30, 2003, the Illinois Association of Wastewater
    Agencies (IAWA) filed a motion to file response and reply
    instanter
    (IAWA Resp.).
     
    The Board will grant IERG’s motion for leave to file a reply and IAWA’s motion for
    leave to file a response and reply
    instanter
    . For the reasons discussed below the Board denies
    the motion for a third hearing and directs the hearing officer to issue an order specifying the
    deadline for closing the pre-first notice comment period.
     
    MOTION
     
    IERG’s motion sets forth three reasons for the request for a third hearing. First, IERG
    states that the short timeframe between the first hearing (March 17, 2003), and the deadline for
    prefiled testimony in the second hearing (March 26, 2003) was insufficient to allow IERG to
    prepare meaningful testimony. Mot. at 2-3. IERG maintains that meaningful testimony could
    not be prepared because the transcript from the first hearing was unavailable and IERG needed to
    review and cite to the transcript in any testimony that IERG might present.
    Id
    .
     
    IERG’s second reason for a third hearing involves the prefiled testimony of Toby Frevert
    of the Illinois Environmental Protection Agency (Agency) to be presented at the second hearing.
    IERG states that Mr. Frevert’s testimony indicates that the Agency was meeting with
    “stakeholders” to discuss modifications to the proposal. Mot. at 2. IERG asserts that it has not
    seen the modifications nor met with the Agency to discuss changes. Mot. at 3. IERG argues that
    reviewing modifications and meeting with Mr. Frevert are necessary before preparing testimony
    to the Board. Mot. at 2.
     
    Third, IERG asserts that currently IERG is “engaged in representing its members in
    several pressing matters”. Mot. at 2. These matters are taking substantial time and are hindering
    IERG’s ability to file prefiled testimony in this matter. Mot. at 3. In sum, IERG argues that
     
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    there was simply insufficient time to prepare detailed testimony for the second hearing and a
    third hearing should be held.
    Id
    .
     
    RESPONSE
     
    The proponents oppose the motion for a third hearing. Specifically, the proponents assert
    that granting the request would delay the “enactment of rules necessary to ensure that citizens
    seeking to prevent the issuance of improper permits” have a full opportunity for review of the
    permits. Resp. at 2. Further the proponents argue that IERG did have sufficient opportunity to
    prepare testimony. Resp. at 2-3. Proponents state that IERG had over two months from the time
    the proposal was filed to formulate a position and IERG representatives were at the first hearing.
    Resp. at 2-3. Proponents also state that IERG was involved in meetings and a hearing prior to
    the proposal being filed with the Board. Also proponents point out that others who share IERG’s
    concerns were able to formulate a position and testify at the April 2, 2003 hearing.
    Id
    .
     
    Proponents assert that IERG may still provide written comment on the proposal and any
    agreements reached on the proposal during on going negotiations with the Agency and
    “stakeholders” can be presented in written form. Resp. at 3. Proponents also note that IERG
    will have additional opportunities to comment on any first-notice proposal ultimately adopted by
    the Board. Resp. at 3.
     
    REPLY
     
    In the reply, IERG concedes that IERG had several months to review the initial proposal.
    However IERG argues that there were only a few days prior to the second hearing for IERG to
    review the Agency’s proposal and only a few hours for other stakeholders to review rule
    language proposed by the Agency. Reply at 2. IERG asserts that the primary concern of IERG
    is the “possible inclusion of new language drafted” by the Agency which would introduce a
    “mechanism and concepts that have never been the subject of testimony” by the Agency or
    cross-examination by interested stakeholders.
    Id
    . IERG maintains that no material prejudice
    would result if the Board grants the motion for a third hearing.
     
    IAWA’S RESPONSE
     
    IAWA presents four arguments in support of IERG’s motion for a third hearing. First,
    IAWA asserts that proponents have not provided any basis for the inadequacy of the current
    NPDES permit public participation scheme. Second, IAWA states that because these proposed
    rules concern public participation, “[i]t is inconceivable that the parties opposing the request for
    a third hearing would advocate cutting off the opportunity for comment on the very regulations”
    that govern public participation. IAWA Resp. at 1.
     
    Third, IAWA argues that considerable resources have been expended in responding to the
    proposal and a third hearing is warranted to allow all parties the opportunity to question the
    Agency regarding the alternative proposal. IAWA Resp. at 2. Finally, IAWA maintains that the
    proponents have presented no emergency basis for denying the third hearing and further
     
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    deliberation on the proposal will not interfere with the opportunity for continued public
    participation in an NPDES permit process.
     
    DISCUSSION
     
    IERG and IAWA both support a third hearing in order to hear testimony and cross-
    examine Agency witnesses regarding proposed language changes offered by the Agency in a
    public comment filed on May 1, 2003. However, the Agency did not state a position on whether
    or not the Agency supports a third hearing and there is no indication that the Agency would
    testify at a third hearing. The Agency is not the proponent in this rulemaking and the Agency
    need not testify regarding the language suggested as possible amendments to the proposal. The
    Board appreciates the concerns raised by IERG and IAWA, but these concerns do not convince
    the Board that a third hearing is necessary at this time. Therefore, the Board denies the motion to
    set a third hearing.
     
    The Board will have one more period for written public comments before the Board
    proceeds with this matter. The hearing officer is directed to issue an order announcing the
    deadline for the close of the pre-first notice public comment period and all interested persons
    including IERG may present written comments during this comment period. The Board notes
    that the proposal has not been adopted for first notice under the Administrative Procedure Act (5
    ILCS 5/100
    et seq
    . (2002)) and the Board has not determined whether or not to proceed to first
    notice.
     
    If the Board does proceed to first notice, the Board may amend the proposal consistent
    with the comments and testimony the Board has received in this matter. The Board will then
    schedule additional hearings as necessary to allow for testimony and comment on the first-notice
    proposal. Proceeding to first notice with the proposal will require publication in the
    Illinois
    Register
    and therefore allow broader public notification about the proposal which may lead to
    additional public participation. A possible third public hearing scheduled after first notice may
    be more useful in eliciting testimony and public comments than a third hearing prior to first
    notice.
     
    CONCLUSION
     
    The Board denies the motion to set this matter for a third hearing at this time. However,
    if the Board proceeds to first notice at least one additional hearing will be held prior to moving to
    second notice with the proposed rule.
     
    IT IS SO ORDERED.
     
    Chairman T.E. Johnson dissented.
     
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    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on May 15, 2003, by a vote of 6-1.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     

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