ILLINOIS POLLUTION CONTROL BOARD
September
22,
1988
I~THE MATTER OF:
)
PROCEDURAL RULES REVISION,
)
R88-5
35 ILL. ADM. CODE 101, 102,
)
106 and 107
)
CONCURRING OPINION
(by
3.
Anderson,
3.
Dumelle,
3. Marlin):
The sole reason for this concurring opinion
is
to elaborate
on the concept of including in the Board’s procedural
rules
a
provision for an “informal request for regulation”;
the greater
detail
is intended
to provide a better
focus
for public comment.
Subpart B of Part 102
of the R88—5 proposal, entitled
“Proposal of
Regulations of General Applicability”,
would require
proponents
in regulatory proceedings
to collect data
in support
of
a proposed change
and to frame
the language
of that change
before the proposal would be aired at hearing.
This may well
contribute
to the efficiency of the hearing process.
However,
this may not be an unalloyed benefit;
these procedural
requirements may unnecessarily limit the access of
the general
(non—government, non—industry) public
to the rulemaking
process.
The Board has,
after
all,
in the past received
proposals for rules which could be characterized as meritorious
in concept, even though incapable of implementation as drafted;
some of these have been successfully reworked and adopted as
a
result of the hearing process.
Yet
it
is also the case that
protracted rulemakings can be
a serious drain on the resources of
government,
the regulated community and
the public alike.
Therefore,
rather than reduce procedural requirements
in all
rulemaking proceedings, comment
is requested ~9ncezning th~e
merits of establishing an “informal request for regulation”
procedure whereby
a person can have
an idea for
regulatory change
considered without involving
a substantial
“upfrorit” commitment
of time and resources by that person, but also without
necessarily committing substantial governmental resources to
consideration of the idea either.
The conceptual prototype for this procedure
is the
informal/formal complaint system which
the Board has long had
in
the enforcement arena,
wherein an informal complaint triggers an
investigation of
a problem,
but
a formal complaint triggers a
formal proceeding at which
the complainant bears the burden of
litigating
the problem.
In brief,
the filing requirements for the “informal request”
include identification of the regulation
to be
added or amended,
—2—
specification of the envLronmental problem and remedy sought,
and, submission of data gathered by the requester concerning
the
problem.
The informal
request would be required
to be
accompanied
by 200 signatures,
to deter
the filing of frivolous
requests.
The informal request would be placed on the Board’s agenda
for consideration, and the Board would,
by Order, make some
appropriate disposition of the request.
As the consideration of
an informal request would be a discretionary practice on the part
of the Board since
it does not flow from a mandate contained
in
Title VII of the Act, the Board would not consider any Order
responding to an informal request
to be
a “final Order” which
could be appealed pursuant to Sections
29 and 41 of the Act.
In summary, participants are requested
to address both the
concept and the suggested regulatory language set forth below:
PART 102, SUBPART X:
INFORMAL REQUEST FOR REGULATION
Section
102.XXX
Informal Request For Regulation
Any person may submit an informal request for the adoption,
amendment,
or repeal of
a regulation.
The purpose of such an
informal request is
to ask the Board
to initiate action on an
area of concern
to the person filing the request.
The person
submitting such a request shall
be known as the proposer, but
shall
bear only the responsibilities set forth
in this Subpart.
An informal
request for
rulemaking will not in itself result
in
an adopted
rule,
but may lead to the opening of a formal
rulemaking docket.
Section 102.XXX
Contents And Filing Of Informal Request
a)
Each informal request shall be titled’~Info.rmalRequest
For Regulation.”
Each such request shall include~
1)
The identity of the person or persons making the
request;
2)
An identification of the regulation to be adopted,
amended,
or repealed, including suggested language;
3)
The nature of the environmental problem to be
addressed by the request;
4)
The suggested remedy for the environmental problem;
5)
Any data which petitioner has gathered
in support
of the request; and
92—600
—3—
6)
Any other
relevant information.
b)
The petitioner
shall file 10 copies of the request with
the Clerk, and one with the Agency and DENR.
The
request shall be accompanied by a petition in support of
the request,
signed by at least 200 persons.
Section l02.XXX
Board Action
a)
All informal requests for regulation will be placed on
the Board’s agenda
for consideration.
The Board will
issue a written order specifying
its response to the
informal request for regulation.
b)
The Board will respond
to an informal request as the
Board,
in its discretion, deems appropriate, considering
the nature of the request and supporting data
presented.
The Board’s may include but not be limited
to:.
1)
A request for public comment concerning
the
request;
2)
A direction
to
the Board’s Scientific/Technical
Section
to conduct a literature search;
3)
The scheduling
an inquiry hearing concerning
the
request;
4)
A request that the Agency or another person propose
a formal regulation;
5)
A request that DENR conduct research on the issues
raised by the request;
6)
The dismissal of a frivolous or non—meritorious
request;
7)
A statement that the Board declines to take action,
for reasons including but not limited to lack of
resources, lack of statutory authority to regulate,
or pendancy of federal
regulatory proposals.
Section 102.XXX
Appeal
Orders issued by the Board pursuant
to this Subpart are not final
Orders for the purpose of appeal pursuant to Sections
29 and
41
of the Act.
92—60 1
—4—
~
Joan G. Anderson
f
Board Member
Q~~
~/
Jacob
D. Dumelle
Chairman
John C. Marlin
Board Member
/
I,
Dorothy
M. Gunn, Clerk of the Illinois Pollution Control
Board,
hereb
certify
at the above Concurring Opinion was filed
on the ~~Jday
of
~
1988.
Dorothy M.(çiunn, Clerk
Illinois Pollution Control Board
92—A02