RECEUVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFFICE
AUG
18
2004
STATE OF ILLINOIS
Pollution Control Board
IN THE MATTER OF:
CLEAN-UP PART III AMENDMENTS
TO
35
ILL. ADM. CODE PARTS
211, 218 AND 219
TO:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100W. Randolph Street, Suite 11-500
Chicago, Illinois 60601
SEE
ATTACHED
SERVICE LIST
)
)
)
)
NOTICE
R 04-20
(Rulemaking —Air)
Richard McGill, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100W. Randolph, Suite 11-500
Chicago, Illinois 60601
PLEASE TAKE NOTICE that I have filed with the Office ofthe Pollution
Control Board the OBJECTION TO JEFFERSON SMIIJRFIT’S MOTION FOR LEAVE TO
FILE POST-HEARING COMMENTS on behalfof the Illinois Environmental Protection
Agency, a copy ofwhich is herewith served upon you.
Date:
August
16, 2004
1021
North Grand Avenue East
P.O. Box
19276
Spring field, IL 62794-9276
217/782-5544
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By:~
Charles E. Matoesian
Assistant Counsel
Division of Legal Counsel
THIS FILING IS SUBMITTED ON
RECYCLED PAPER
RECE~VED
CLERK’S OFFICE
BEFORE
THE ILLINOIS POLLUTION CONTROL
BOARD
AUG
18
2004
STATE OF ILLINOIS
IN
THE MATTER OF:
)
Pollution Control Board
)
CLEAN-UP PART III
)
R04-20
AMENDMENTS TO
35 ILL.
)
(Rulemaking
-
Air)
ADM. CODE PARTS 211, 218
AND
219
)
)
OBJECTION TO JEFFERSON SMURFIT’S MOTION FOR LEAVE TO FILE•
POST-HEARING COMMENTS
The Illinois Environmental Protection Agency (“Illinois
EPA”) hereby submits its
Objection to Jefferson Smurfit Corporation’s (LJ.S.)(”Smurfit”) Motion for Leave to File
Post-Hearing Comments.
In support ofthis Objection, the Illinois EPA states as follows:
1.
On May 25, 2004, the Hearing Officer declared that the public hearing
comment period for R04-20, a rulemaking to amend Parts
211, 218 and 219 ofTitle
35
of
the Illinois Administrative Code,
would close on June
18, 2004.
2.
On August 2, 2004,
Smurfit filed its Motion for Leave to File Post-Hearing
Comments (“Motion”).
On the same date, the Illinois EPA received Smurfit’s Motion.
3.
Nowhere in its motion does Smurfit allege that it will be materially prejudiced
if the Board denies its Motion.
More importantly, Smurfit will not be materially
prejudiced if the Board denies Smurfit’s Motion; it is the position ofthe Illinois EPA that
Smurfit’s Motion should be denied.
4.
Section 102.108(d) of the Board’s procedural rules,
35
Ill. Adm.
Code
102.108(d), clearly states “cjomments
that are not timely filed or properly served will.
not be considered, except as allowed by the hearing officer or the Board to prevent
material prejudice.”
5.
The Board rules are clear that comments may only be filed during the
prescribed period unless material prejudice will result.
35
Ill.
Adm. Code 102.108(d).
The Hearing Officer provided notice to the public in accordance with to
35
Ill.
Adm.
Code
102.416 and two public hearing were held on March
18 and May 6, 2004.
The
Hearing Officer subsequently allowed comments
until June 18, 2004.
Smurfit’s motion
was filed approximately six weeks after the close ofthe comment period.
In fact, nearly
six
months lapsed from the Illinois EPA’s filing ofthe Rulemaking proposal in January,
2004,
to the close ofthe public
comment period.
Yet,
Smurfit wants the Board to accept
that at no time during those
five and a half months did it or any of its industry groups
have any reason to check the Board’s website or to read the Statement ofReasons.
6.
Smurfit suggests that the labeling ofthe proposed rulemaking asa “clean-up”
was sufficient to
discourage all interest by itself or industry in the proposal and to
dissuade further examination of the matter.
This is the closest Smurfit comes to claiming
material prejudice.
Smurfit alleges that the changes affecting capture efficiency testing
might have a substantial impact on regulated facilities.
However, this claim disregards
that the Illinois EPA’s proposal provides additional flexibility in capture testing for
sources. Illinois EPA has proposed an additional option for measuring compliance that
was not previously available, the Data Quality Objective! Lower Confidence Limit
(“DQO/LCL”) alternative testing for capture efficiency.
Discussed
in U.S.
EPA’s
“Guideline for Determining Capture Efficiency” and John Seitz’s memorandum of
February 7, 1995, both of which are exhibits for Rulemaking R04-20.
7.
Capture efficiencytesting has been a requirement in the Illinois State
Implementation Plan since 1987.
It is required ofmajor sources that are using
add-on
2
controls to
comply with regulations in 35 Ill. Adm. Code Parts 215, 218, and 219.
Prior
to the proposed DQO/LCL alternative testing method, permanent total enclosure (“PTE”)
ortemporary total
enclosure (“TTE”) has been required.
To prove compliance with the
capture efficiency requirement, all major sources, including Smurfit, had
only the PTE or
TTE choices. With the inclusion ofthe DQO!LCL alternative, major sources Will now
have a third option.
The Illinois
EPA does not require DQO/LCL, and thus,
is not
imposing it on any source.
The source retains the discretion to decide which method it
will utilize to demonstrate
its capture efficiency.
It is at U.S. EPA’s recommendation that
Illinois EPA has proposed including the alternative DQO/LCL.
However, the Illinois
EPA continues to prefer the use ofPTE or TTE since U.S. EPA has found them to be the
most accurate.
Furthermore, Illinois EPA reserves the right to require the use ofPTE or
TTE if DQO/LCL is not conclusive.
8.
Smurfit contends that this rulemaking has gone beyond the announced scope of
making noncontroversial changes because it believes the Illinois EPA has put additional
restrictions on protocols approved by U.S. EPA.
This is simply not true; however, the
Illinois EPA reserves comments
in this regard pending the Board’s reaction to this
Objection.
9.
Regardless ofthe merits or lack thereofofSmurfit’s
comments, Smurfit will
not be materially prejudiced when it may still file comments during First Notice’s 45
day
public comment period.
35
Ill. Adm.
Code
102.604.
The existence ofthe First Notice
comment period recognizes that nothing
in the previous proceedings is
final.
Moreover,
it gives the general public a chance to view the proposal before it is recommended for
acceptance.
3
10.
Finally, Smurfit’s
attorney, Roy C. Cobb
is not admitted to practice law in the
State ofIllinois.
Section
101.400 of
35
Ill. Adm. Code states in part:
a)
Appearances.
A person who is a party in a Board adjudicatory
proceeding may appear as follows:
1)
Individuals may appear on their own behalfor through an
attorney-at-law licensed and registered to practice law.
(Section
1 ofthe Attorney Act
705
ILCS 205/1
)
2)
When appearing before the Board,
any person other than
individuals must appear through
an attorney-at-law licensed
and registered to practice law.
(Section
1
ofthe
CorporationPractice ofLaw Prohibition Act 705
ILCS
220/1
and Section
1 ofthe Attorney Act 705
ILCS
205/1)
3)
Attorneys who are licensed to practice in a state other than
Illinois and who are not licensed and registered to practice
in the State ofIllinois may request to appear pro hac vice
on a particularmatter on a motion filed with the Board.
11.
While Mr.
Cobb, practices in Clayton, Missouri, he has neither filed a Motion
to be admitted
Pro Hac Vice
nor has he been admitted to practice in the
State ofIllinois
according to a search ofthe Attorney Registration and Disciplinary Commission website.
While the Board’s procedural rules afford an attorney licensed to practice in a State other
than Illinois the opportunity to practice in Illinois if the appropriate motion
is filed, Mr.
Cobb has not filed such a motion.
See, 35
Ill.
Adm. Code
101.400(a)(3).’
Moreover, the validity
of
35
Iii.
Adm.
Code
101 .400(a)(3) is questionable given that the
Illinois
Supreme Court ruled in
People ex rel. The Chicago Bar Ass’n
v. Goodman
(1937),
366 Ill. 346, 352,
cert.denied, 302 US 728,
58
5. Ct 49, that the
General Assembly had no authority to bestow upon a layman
the rightto practice law.
The Supreme Court again reiterated this proposition in
Lozoff v. Shore Heights;
Ltd.
(1977), 66
Iii. 2d 398.
In this decision, the
Supreme Courtfound that it possessed
exclusive power to
determine those that may
practice law in Illinois.
4
12.
Ifthe Board denies Smurfit’s Motion, Smurfit will not be materially
prejudiced because the comments were filed by an
attorney not licensed in Illinois well
after the close ofcomment period; Smurfit may still properly file comments during the
First Notice comment period.
Accordingly, Smurfit’s Motion for Leave to File Post-
Hearing Comments should be denied.
WHEREFORE, the Illinois EPA respectfully requests that Smurfit’s Motion for
Leave to File Post-Hearing Comments be denied or, in the alternative, requests that if the
Board allows Smurfit leave to file post-hearing comments, the Illinois EPA be granted
leave to file additional post-hearing comments.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
/
PROTECTION AGENCY
By:__
Charles E. Matoesiä~
‘~
Assistant Counsel
Division of Legal Counsel
DATED:
August 16,2004
Illinois Environmental Protection Agency
1021
North Grand Avenue East
Post Office Box
19276
Springfield, Illinois 62794-9276
(217) 782-5544
5
STATE OF ILLINOIS
COUNTY OF SANGAMON
)
)SS.
)
PROOF OF SERVICE
I, the undersigned,
on oath state that I have served the attached Objection to
Jefferson
Smurfit’s Motion for Leave to File Post-Hearing Comments upon the person to whom it is
directed, by placing it
in an envelope addressed to:
TO:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson
Center
100 W. Randolph
Street,
Suite
11-500
Chicago, Illinois 60601
SEE ATTACHED
SERVICE LIST
Richard McMill, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100W. Randolph,
Suite 11-500
Chicago,
Illinois 60601
and mailing it by First Class Mail from Springfield,
Illinois on August 16, 2004,
with sufficient
postage
affixed.
SUBSCRIBED AND SWORN TO BEFORE ME
this l6~day of August, 2004
Notary Public
OFF,C~
t
BRENDA
JOEUNEft
NOTARY
PUBLIC
STATE
OF
ILLINOIS
~
COMMISSION
EXPIRES
I
THIS FILING IS SUBMITTED
ON RECYCLED PAPER
SERVICE LIST R 04-20
Robert Messina
Illinois Environmental Regulatory Group
3150 Roland Avenue
Springfield, Illinois 62703
Matthew Dunn, Chief
Attorney General’s Office
Environmental Bureau
188 West Randolph,
20th
Floor
Chicago, Illinois 60601
Claire A. Manning
Posegate & Denes, P.C.
111
N. Sixth Street
Springfield, Illinois 62705
N. LaDonna Driver
Hodge Dwyer Zeman
3150 Roland Avenue
P. 0. Box 5776
Springfield, Illinois 62705-5776
Jonathan Fun
ChiefLegal Counsel
Illinois Department ofNatural Resources
One Natural Resource Road
Springfield, Illinois 62702
Roy C.
Cobb, Jr.
Senior Environmental Counsel
Jefferson Smurfit Corporation (U.S.)
8182 Maryland Avenue
Clayton, Missouri 63105
