ILLINOIS POLLUTION CONTROL BOARD
    April 20, 2006
     
    IN THE MATTER OF:
     
    PROPOSED NEW 35 ILL. ADM. CODE 225
    CONTROL OF EMISSIONS FROM LARGE
    COMBUSTION SOURCES (MERCURY)
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    R06-25
    (Rulemaking - Air)
     
    DISSENTING OPINION (by T.E. Johnson):
     
    I respectfully dissent from the majority opinion. As was discussed in the majority
    opinion, the issue of whether or not fast-track procedures are appropriate in this rulemaking
    hinges on two factors. One is whether or not the rules are “required to be adopted” under
    Section 28.5 of the Illinois Environmental Protection Act (Act) (415 ILCS 5/28.5 (2004)); the
    second is whether rules adopted using the fast-track procedures can be more stringent than the
    federal requirements upon which the rules are based.
     
    I disagree with the majority on the “required-to-be-adopted” portion of the majority
    opinion. Section 28.5 of the Act defines “requires to be adopted” as “those regulations or parts
    of regulations for which the United States Environmental Protection Agency (USEPA) is
    empowered to impose sanctions against the State for failure to adopt such rules.” 415 ILCS
    5/28.5 (2004). While it is clear that any Illinois failure to adopt a mercury emission regulation
    will result in the federal clean air mercury rule becoming enforceable in Illinois, I do not think
    the imposition of the federal plan is a sanction pursuant to Section 28.5. Thus, I do not believe
    that this rulemaking proposes regulations or parts of regulations for which the USEPA is
    empowered to impose sanctions against the State for failure to adopt such rules, and I feel the
    Board should not proceed with this rulemaking pursuant to Section 28.5. Rather, this proposal
    should proceed under the Board’s general rulemaking provisions found at Sections 27 and 28 of
    the Act. 415 ILCS 5/27 and 28 (2004).
     
    I want to underscore the importance of this rulemaking. However, in my opinion,
    Section 28.5 is simply not the appropriate vehicle for this proposal. I agree with the majority
    concerning the Board’s authority to consider whether or not a proposal filed pursuant to Section
    28.5 may proceed under that provision. As the majority states, both the language of the Act and
    well-settled case law authorize the Board to consider whether or not a proposal filed pursuant to
    Section 28.5 may proceed under that provision. Further, the Act and case law establish that the
    Board has the discretion to determine whether it has jurisdiction over a matter filed before it.
     
    Additionally, I believe the majority is correct in finding that no part of the proposal must
    be dismissed because of the lack of specific findings regarding mercury emissions in the Section
    9.10 report. Under Sections 27 and 28.5 of the Act, the Illinois Environmental Protection
    Agency has broad authority to bring proposals to the Board.
     
    Ultimately though, I cannot join the majority in voting for this opinion because I feel that
    the Board should not proceed with this rulemaking utilizing the Act’s fast-track-procedures since
     
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    the imposition of the federal clean air mercury rule in Illinois does not amount to a sanction as
    referenced in Section 28.5 of the Act.
     
    For the above stated reasons, I respectfully dissent.
     
    Thomas E. Johnson
    Board Member
     
      
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the above
    dissenting opinion was submitted on April 24, 2006.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     

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