ILLINOIS POLLUTION CONTROL BOARD
    December 17, 1998
    IN THE MATTER OF:
    PERMITTING PROCEDURES FOR THE
    LAKE MICHIGAN BASIN 35 Ill. Adm.
    Code 301, 309.141
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    R99-8
    (Rulemaking - Water)
    ORDER OF THE BOARD (by G.T. Girard, C.A. Manning, and N.J. Melas):
    On September 29, 1998, the Illinois Environmental Regulatory Group (IERG) filed a
    motion to dismiss this rulemaking. On November 17, 1998, the Illinois Attorney General
    (Attorney General) filed a response to the IERG motion. On November 18, 1998, the
    Chemical Industry Council filed a comment supporting IERG’s motion. And on November
    19, 1998, the Illinois Environmental Protection Agency (Agency) filed a response to the IERG
    motion. On November 30, 1998, IERG filed a reply to the responses. Also, at hearing on
    December 8, 1998, IERG asked that the Board rule on the outstanding motion prior to January
    14, 1999, the date set by the hearing officer for posthearing comments to be filed.
    IERG argues that the proposal before the Board is in effect a request for declaratory
    judgment from the Board regarding the Agency’s rulemaking authority. IERG maintains that
    the Board has no authority in this proceeding to determine the Agency’s rulemaking authority.
    Both the Agency and the Attorney General disagree with IERG’s motion. Both argue that the
    Board has before it a substantive rulemaking proposal which the Board has the authority to
    adopt.
    After thorough consideration, the Board denies IERG’s motion to dismiss. The
    Agency’s rulemaking proposal contains proposed amendments to the Board’s water rules that
    will clarify implementation of the federally required Great Lakes Initiative. IERG has not
    argued that the Board cannot adopt amendments to its rules; rather, IERG has argued that the
    Board cannot decide on the Agency’s authority to adopt rules in this proceeding. The Board
    does not need to decide the Agency’s authority for rulemaking in this proceeding. Section 13
    of the Environmental Protection Act (415 ILCS 5/13 (1996)) clearly grants the Board the
    authority to adopt rules. Thus, the Board can adopt or not adopt the proposed rules on the
    merits based on the Board’s own authority to adopt the rules proposed by the Agency.
    Therefore, the Board denies IERG’s motion to dismiss.
    IT IS SO ORDERED.
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    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the 17th day of December 1998 by a vote of 6-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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