ILLINOIS

POLLUTION

CONTROL

BOARD

o er

,

CLERK’S

OFFICE

iN THE

MATTER OF:

)

oci

232009

STATE

OF

ILLINOIS

NO

TRADING

PROGRAM:

)

R06-22

Pollution

Control

Board

AIvIENDMENTS

TO

35

ILL.

ADM. CODE

)

(Rulemaking - Air)

PART217

)

I

I

I

HEARING

OFFICER

ORDER

On October 14, 2009,

the Illinois

Environmental

Protection Agency

(Agency) filed

a

motion for leave

to file instanter

and for an extension

of the

deadline

to respond to

IERG’s

motion for reconsideration

and clarification

(Mot.).

On October 21, 2009,

the

Agency filed

a

motion for

leave to file instanter

and for an

extension

of

time

to file a status report

(Mot. Status).

This

order

addresses

the two motions

in separate sections

below.

On October

15, 2009, the Illinois

Environmental

Regulatory Group

(IERG)

filed a motion

to

withdraw

a portion

of its pending

motion for reconsideration

and

clarification

(Mot.

Withdraw).

IERG specifically

asked

the Board

to “withdraw

the portion of IERG’s

pending

Motion related to

the request

for

reconsideration.”

Mot. Withdraw

at 4-5. Because that

motion

is directed

to

the Board,

and because the

deadline

to

respond to that motion

has not passed,

this

order

will not address the

substance

of

IERG’

s motion.

IEPA

Motion for Extension

of

Time

to

File

Response

On August

3,

2009,

JERG

filed

two motions

in this rulemaking

docket, a “Motion

for

Emergency

Rule”

and a “Motion for Expedited

Action

on the Illinois Environmental

Regulatory

Group’s

Alternative Proposal.”

In an order dated

August 20,

2009, the Board denied

both

motions and directed

the Illinois

Environmental Protection

Agency

(Agency) to file a status

report

on or

before October 19, 2009.

On September

14, 2009, JERG

filed a motion

requesting that the

Board reconsider

and clarify its order.

On

September

29, 2009, the Agency

filed

a

motion

to file

instanter and for an extension

of the deadline

to respond

to IERG’s motion for

reconsideration

and clarification.

In an order dated

October 1, 2009,

the hearing

officer granted the Agency’s

motion to

file

instanter

and also extended

the

Agency’s

response deadline

to Tuesday,

October

13, 2009.

On October 14,

2009,

the Agency

filed a motion

for

leave to file

instanter and for an

extension

of the deadline

to respond to IERG’s

motion

for

reconsideration and

clarification.

The

Agency

states that,

on

September

24, 2009, it “received

a letter from

USEPA [United States

Environmental

Protection

Agency] confirming

that Non-EGUs

[Electric Generating

Units]

were

not required

to hold allowances

for the 2009

control period.”

Mot. at 2 (attaching

letter). The

Agency further

states that it is still

discussing

with

IERG the

issues raised in IERG’

s motion and

the

implications of USEPA’s

recent letter.

Id. The Agency

seeks

to

extend to Monday, October,

26, 2009,

the

deadline to respond

to the motion

for reconsideration

and clarification.

Id. The

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2

Agency

also

states

that the “Motion

for Extension

would have been

filed

on

October 13,

2009,

but

the parties were not

able

to

confer

until

October

14, 2009, on the

contents

of this

Motion

requesting

the

extension.”

Id.

Section 101.500(d)

of the

Board’s

procedural

rules

provides,

in pertinent

part,

that,

[w]ithin 14

days after

service

of a motion,

a party may

file a response

to the

motion.

If

no response is

filed, the party will

be deemed

to have waived objection

to

the granting of the

motion, but

the

waiver

of objection does not

bind the Board

or the

hearing officer in

its disposition

of the motion.

Unless 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. . .

.“ 35

Ill.

Adm.

Code

101.500(d).

The

Agency

has requested

a

13-day extension

of its response

deadline. Under

these

circumstances,

undue

delay

would result

from allowing

the

full

14-day

response period to run.

See 35 Iii. Adm.

Code

101.500(d).

Having

reviewed

the

substance

of the motion and in

the absence

to

date of any objection,

the Agency’s

motion for leave to file

instanter is

granted. The Agency’s

motion for

an

extension

of the response

deadline

is also

granted.

The

Agency is

directed

to file

its response to IERG’s

motion

for

reconsideration and

clarification

on or before

Monday, October 26,

2009. The

“mailbox rule” at

35 Ill. Adm.

Code 101 .300(b)(2)

does not apply

to the filing

of this response.

The

Board’s Clerk must

receive the response

before

the close of business

on Monday,

October

26, 2009.

Although the response

may

be

filed electronically

through

the Clerk’s

Office On-Line

(COOL) from

the Board’s Web site

at www.ipcb.state.ii.us,

an

electronic or approved

fax

filing

must

be received by the

Clerk’s

Office

no later than 4:30

PM

on Monday,

October 26, 2009.

Any

questions

about electronic filing

through COOL

should be

directed to the Clerk’s

Office at

(312)

814-3629.

Motion

for Extension

of Time to File

Status

Report

The Agency

notes

that

the Board’s

August

20, 2009, order

directed the

Agency

by

October

19, 2009, to file

a status report

“indicating

whether

and when

it will be filing a

withdrawal of

this docket

and submitting

a new proposal addressing

Non-EGUs

and

NO

emissions.” Mot. Status

at 1. The

Agency

states

that it has discussed

issues pertaining

to this

docket with

TERG, although

the two

“were unable to meet

in

person until

October 20, 2009.”

Id.

at

2.

The

Agency

further states

that,

when

it met with IERG,

they discussed extending

the

deadline for filing

a status report

to November 10, 2009.

Id.

The

Agency

reports

that

“IERG has

indicated

that it will not

object to the extension.”

Id.

The Agency requests

that the Board

or

hearing officer

“allow

the

Illinois EPA

up to and including November

10,

2009, to file a Status

Report for

Docket R06-22.”

Id.

Section 101.500(d)

of the

Board’s procedural

rules provides,

in pertinent

part, that,

---

3

[w]ithin

14 days after

service

of a motion, a

party may file

a response to the

motion.

If

no response is filed,

the party will

be deemed to have waived

objection

to the

granting

of the

motion,

but

the waiver of objection

does not

bind

the

Board

or the

hearing officer

in its disposition of

the motion.

Unless 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. . . .“

35 Ill.

Adm.

Code 101

.500(d).

In

its

August 20,

2009, order, the Board

noted

the Agency’s

earlier indication

that it expected

to

propose

a rule

that

would

integrate non-EGUs into

the

CAR

[Clean Air Interstate

Rule].

NQ

Trading Program

Amendments to

35 Ill.

Adm. Code

Part 217, R06-22,

slip op. at 33 (Aug.

20,

2009).

The

Board

thus

directed the Agency

to

file

a status

report indicating whether

and when it

intends

to file such

a

separate

rulemaking proposal.

Id.

The Board

also directed the Agency

to

address

whether it is prepared

to schedule

hearings

in this docket

or to dismiss

it. Id. Under

these

circumstances,

undue delay

would result from

allowing the full

14-day response period

to

run.

See 35 Ill. Adm.

Code 101

.500(d).

While the

direction to the Agency

to file a status

report demonstrates

the Board’s clear

interest

in a prompt resolution

of the

issues

raised in IERG’ s

motions for emergency

rulemaking

and

for expedited

review, the Agency’s

original

deadline for filing its

status report has passed.

Furthennore, the Agency

notes

IERG’s

indication that it

will not

object

to an extended deadline.

Having reviewed

the

substance of the motion

and in the

absence to date of any

objection, the

Agency’s motion

for leave to file

instanter

is granted. The Agency’s

motion for an extension

of

the time to file a

status report is also

granted.

The Agency

is directed

to file its response

to IERG’s motion

for reconsideration

and

clarification on or before

Tuesday

November 10, 2009.

The

“mailbox

rule” at 35 Ill. Adm.

Code

101.300(b)(2)

does not

apply to the filing of

this status report.

The Board’s Clerk

must receive

the status report before

the close

of business on Tuesday,

November

10, 2009. Although

the

status

report may be filed

electronically

through

the Clerk’s Office

On-Line

(COOL) from the

Board’s Web

site at www.ipcb.state.il.us,

an electronic

or approved fax

filing must

be received

by the Clerks Office no

later than 4:30

PM on Tuesday,

November 10, 2009.

Any questions

about electronic

filing through

COOL should

be

directed to the Clerk’s

Office

at (312)

814-3629.

IT IS

SO

ORDERED.

Timothy

J.

Fox

Hearing Officer

Illinois

Pollution Control Board

100 West Randolph,

Suite 11-500

Chicago,

Illinois 60601

(312) 814-6085

foxt@ipcb.state.il.us

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