ILLINOIS POLLUTION CONTROL BOARD
    October
    29,
    1987
    IN THE MATTER OF:
    PROPOSED SITE SPECIFIC WATER
    POLLUTION RULES AND REGULATIONS
    )
    R81—19
    APPLICABLE TO CITIZENS UTILITIES
    )
    ORDER OF THE BOARD
    (by J. Theodore Meyer):
    This matter
    is before
    the Board
    on
    a motion
    to issue
    subpoena duces tecum, filed October
    22,
    1987,
    by the Illinois
    Environmental Protection Agency (Agency).
    On October
    23,
    1987,
    petitioner Citizens Utilities Company of Illinois
    (Citizens)
    filed objections
    to the motion and an alternative motion
    to
    quash.
    The Agency seeks
    to subpoena Thomas Stack, Assistant
    Chief of the Rate Design Section of the Illinois Commerce
    Commission
    (ICC),
    to speak
    to the issue
    of apportioning the
    burden of rate increases over given service areas.
    The motion
    for subpoena
    is directed
    to the Hearing Officer, but asks that
    it
    be forwarded
    to the Board
    if necessary.
    The Hearing Officer has
    referred the motion
    to the Board.
    The instant petition for site—specific water pollution
    regulations was filed on June
    12,
    1981.
    Since that time,
    numerous hearings have been held, and
    the case has been appealed
    to the Appellate Court, which remanded the proceeding.
    In order
    to avoid any further appeal before the conclusion of this
    rulemaking,
    the Board wishes to respond
    to the arguments raised
    by Citizens
    in opposition
    to the issuance of the requested
    subpoena.
    Citizens
    first objects to the issuance of the subpoena
    on
    the grounds that the Hearing Officer does not have authority to
    issue
    the
    subpoena.
    Citizens contends that because
    35 Ill. Adm.
    Code 103.163(a)
    states that subpoenas are to be issued “upon
    timely motion
    to the Board”, all motions by parties must be
    directed
    to
    the Board and not to the Hearing Officer.
    However,
    Section
    103.163(a)
    applies to enforcement proceedings.
    Regulatory proceedings such as
    the instant case are governed by
    35
    Ill. Adm. Code 102.140, which provides that the Board
    or the
    Hearing Officer may issue subpoenas which conform to the
    requirements of Section 103.163(b)
    and
    (c).
    These subsections
    deal with the form of
    a subpoena and the authority to quash
    or
    modify
    a
    subpoena.
    The Board
    feels
    that Sections 102.140
    and
    103.163(b)
    and Cc)
    give the Hearing Officer authority to issue
    subpoenas and that motions for issuance of subpoena may be
    directed to the Hearing Officer.
    The Board
    emphasizes,
    however,
    that
    it will
    issue
    the subpoena
    in
    the
    instant case pursuant
    to
    82—573
    —2--
    its own authority,
    not through the Hearing Officer’s power.
    Ill.
    Rev.
    Stat.
    1985,
    ch.
    1111/2,
    par. 1005(e).
    Citizens also argues
    that:
    (1)
    the motion
    is untimely and
    foreclosed because the Agency has not sought
    to subpoena Mr.
    Stack
    at previous hearings;
    and
    (2)
    the motion for subpoena
    is
    irrelevant because any deficiency in
    the record
    on economic
    impact can only be satisfied by additional study by the
    Department of Energy and Natural Resources (DENR),
    not by
    evidence presented by the Agency.
    The Board finds
    that these
    arguments were rejected
    in the Board’s April 10,
    1986 Order
    granting the Agency’s motion for interrogatories.
    In that Order,
    the Board concluded that the entire burden of
    proof as to
    economic
    impact
    is not on DENR.
    The Board also noted that the
    record
    is as inadequate today as
    it was prior
    to the Appellate
    Court’s remand.
    The Board
    finds that the conclusions of the
    April
    10,
    1986 Order are equally applicable
    to the instant
    proceedings.
    Finally, Citizens contends that the motion
    for subpoena
    is
    improper.
    Citizens asserts that:
    (1)
    Mr.
    Stack,
    a staff member
    of the ICC,
    cannot
    speak
    for the
    ICC;
    (2)
    it
    is improper
    to call
    as
    a witness another regulatory agency having jurisdiction over
    Citizens; and
    (3)
    to require Mr. Stack
    to testify on rate matters
    currently pending before the ICC could prejudice Citizens.
    The
    Board agrees that Mr.
    Stack cannot testify to any future actions
    of the ICC,
    or
    to his opinion on any such future actions.
    However, the Board feels
    that past practices of
    the ICC in
    apportioning rate increases are relevant to this proceeding,
    and
    that Mr.
    Stack
    is competent to testify to these matters.
    For these reasons,
    the Clerk
    of the Board
    is directed to
    issue
    the requested subpoena.
    IT
    IS SO ORDERED.
    R.
    Flemal
    abstained.
    I, Dorothy M. Gunn,
    Clerk
    of the Illinois Pollution Control
    Board,
    hereby certify ~
    the above Order was adopted on
    the
    ~5ctZT
    day of
    i~-~t~-
    ,
    1987,
    by a vote of
    ~
    I
    Dorothy M. Gunn,
    Clerk
    Illinois Pollution Control Board
    82—574

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