ILLINOIS POLLUTION CONTROL BOARD
    July 12, 2007
    IN THE MATTER OF:
    FAST-TRACK RULES UNDER NITROGEN
    OXIDE (NO
    x
    ) SIP CALL PHASE II
    AMENDMENTS TO 35 ILL. ADM. CODE
    SECTION 201.146 and PARTS 211 and 217
    ______________________________________
    )
    )
    )
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    R07-18
    (Rulemaking - Air)
    IN THE MATTER OF:
    SECTION 27 PROPOSED RULES FOR
    NITROGEN OXIDE (NO
    x
    ) EMISSIONS
    FROM STATIONARY RECIPROCATING
    INTERNAL COMBUSTION ENGINES AND
    TURBINES: AMENDMENTS TO 35 ILL.
    ADM. CODE PARTS 211 and 217
    )
    )
    )
    )
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    )
    )
    R07-19
    (Rulemaking - Air)
    ORDER OF THE BOARD (by A.S. Moore):
    On July 11, 2007, the Illinois Environmental Protection Agency (Agency) filed a
    “Motion for Leave to File Reply by Date Certain” (Mot.). The Agency states that, on
    June 25, 2007, it filed with the Board a motion to reconsider a May 17, 2007 Board order
    in this proceeding. Mot. at 1. The Agency notes that, on July 9, 2007, the Board
    received from ANR Pipeline Company, Natural Gas Pipeline Company, Trunkline Gas
    Company, and Panhandle Eastern Pipeline Company (collectively, the Pipeline
    Consortium) the Pipeline Consortium’s response to the motion for reconsideration. Also
    on July 9, 2007, the Board received from the Illinois Environmental Regulatory Group
    (IERG) a motion to strike and a response to the motion for reconsideration.
    In its motion, the Agency argues “that the Responses contain arguments that are
    both misleading and without merit.” Mot. at 2. The Agency seeks leave to file a reply to
    the responses “[i]n order to prevent material prejudice that would result from the inability
    to confront these arguments.”
    Id
    . at 3. The Agency claims that “[n]o hardship or
    prejudice will occur to the Pipeline Consortium or [] IERG as a result of the granting of
    this Motion.”
    Id
    . Acknowledging the Board’s interest in proceeding expeditiously in
    these rulemaking dockets, the Agency’s attorney states that he “will commit to filing a
    comprehensive Reply to both Responses with the Board by no later than Wednesday, July
    18, 2007.”
    Id
    .
    The Board’s procedural rules provide that, “[u]nless undue delay or material
    prejudice would result, neither the Board nor the hearing officer will grant any motion
    before expiration of the 14 day response period except in deadline driven proceedings
    where no waiver has been granted.” 35 Ill. Adm. Code 101.500(d). Under Section
    2
    28.5(o) of the Environmental Protection Act (Act) (415 ILCS 5/28.5(o) (2006)), the
    Board must adopt a second-notice opinion in R07-18 no later than 130 days after
    receiving that rulemaking proposal on April 6, 2007. Specifically, the Board must adopt
    that opinion at its regularly-scheduled August 9, 2007 meeting. Furthermore, Section
    28.5 does not provide either the Board or the rulemaking participant any mechanism for
    waiving deadlines in that “fast-track” rulemaking. In addition, the first hearing in R07-19
    begins on Tuesday, September 18, 2007, and pre-filed testimony for that first hearing
    must be filed no later than Monday, August 27, 2007. Accordingly, the Board finds that
    allowing the 14 day response period to expire under these circumstances would result in
    undue delay in both R07-18 and R07-19, and the Board will proceed to consider the
    motion for leave to file.
    The Agency has correctly noted that “the Board’s regulations do not specifically
    provide a right to reply to a moving party.” Mot. at 2. Specifically, the Board’s
    procedural rules provide that “[t]he moving party will not have the right to reply, except
    as permitted by the Board . . . to prevent material prejudice.” 35 Ill. Adm. Code
    101.500(e). The Agency argues that it would suffer material prejudice if it is not allowed
    to confront the Pipeline Consortium’s and IERG’s arguments about the interpretation of
    Section 28.5 of the Act. Mot. at 2;
    see
    415 ILCS 5/28.5 (2006). The Board grants the
    Agency’s motion for leave to file a reply. Noting the Agency’s commitment to file that
    reply (Mot. at 3), the Board directs the Agency to file its reply no later than Wednesday,
    July 18, 2007. With regard to filing this reply, the “mailbox rule” at 35 Ill. Adm. Code
    101.300(b)(2) does not apply, and the Board’s Clerk must receive that filing before the
    close of business on July 18, 2007.
    IT IS SO ORDERED.
    I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board,
    certify that the Board adopted the above order on July 12, 2007, by a vote of 4-0.
    ___________________________________
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

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