STATE OF ILLINOIS
POLLUTION CONTROL BOARD
October 8, 1970
In the matter of
4~R70—4
PROCEDURAL
RULES
OPINION
OF
THE BOARD
(by Mr. Currie)
At its first meeting on July 14, 1970,
the Pollution Control
Board
appointed a Technical Advisory Committee cansistino of Messrs.
Joseph Karaganis, Michael Schneiderinan, and Thomas Scheuneman to
draft proposed rules to govern the Board’s orocedures.
The committee
draft was revised by members of the Board and was published by Board
order August 19.
Pursuant to notice, oublic hearings were held and
t~stimonyreceived relative to the proposed rules September 16 in
Chicago and September 18 in Alton.
On the basis of testimony at these
hearings and of written statements subsecuently received
and made a
part of the record, the Board published a revised draft of the proposed
rules September 25 together with a notice stating that additional
comments would be accepted until October 6 and that the Board intended
to adopt the final rules at its October 8 meeting.
The revised proposal
was amended in certain respects in response to sugqestions* and was
adopted by the Board October 8, 1970.
The Rules become effective ten
days after their filing with the Secretary of State.
On September 2 the Board voted to oublish and to consolidate with
this proceeding a proposal to repeal Rules and Regulations SWB-3 and
SWB—16.
Both provisions were obsolete; SWB-3 consisted of procedural rules for the
Sanitary Water Board, which has been abolished, and SWB-16 provided for
adoption and use of a common seal for the Sanitary Water
Board.
No
one raised any objection at the hearings to the repeal of these pro-
visions,
and the Board repealed them on October 8.
*The minutes of the October 8 meeting contain the text and explanation
of the amendments adopted at that .ti~e.
1-43
The
Rules
are
based
partly
on
the
Federal
Rules
of
Civil
Procedure
for judicial proceedings, partly on the rules of procedure of various
state and federal agencies and partly on the independent
thinking
of the Technical Advisory Committee and the Board within the frame-
work laid down by the procedural sections of the Environmental
Protection Act, all as modified in response to suggestions made
by the public.
The Rules are
in
five parts.
The first part is
a general catch-all section dealing, among other things, with oublic
information and with the conduct of Board
meetings.
Part
II
deals
with rule—making and other non-adjudicative proceedings.
Part III
prescribes procedures
for enforcement proceedings, Part IV for variances
and Part V for permits.
Part VI prescribes two fundamental canons
of ethics to govern Board Members.
Part I.
The reason for the detail with which Rule 104 provides for
the form of papers submitted to the Board is to avoid repeated
inquiries from attorneys or others wishing to file papers as
to the correct procedure.
The requirement that 10 copies be
filed is imposed in view of the necessity, in the absence of
such a requirement,
for the Board itself to reproduce all
documents filed for circulation to each Board Member as well
as to the Board’s own files.
Section 105 prescribes in detail the method to be used for
computing dates on which notice must be given and other acts
taken in accordance with the Act and these Rules.
As with
many such technical provisions, it is less important what
the rule is than that some reasonably clear rule be stated.
Section 106 makes clear that any person may appear in his
own behalf and that any corporation or other business entity
may appear by any authorized representative.
The presence
of an attorney is permitted but not recuired.
Section
107
attempts
to
deal
with
the
complicated
subject
of
public
information
in
accord
with
the
requirements
of
the
Environmental
Protection
Act.
It
requires
that
virtually
all
information
received
or
produced
by
members
of the Board in
regard
to
the
Board~s business,
except
internal
Board
communi-
cations, he made a matter of record in the Board’s official
files, and it prescribes a restrictive procedure for the
identification
of
material
in
those
files
which
may
be
with-
held
from
nublic
~.sclosure.
Neither
the
Committee
nor
the
Board felt able a~ithis noint to attempt to define what
classes
of
data
m~cthtbe eligible for treatment as
confidential”
under
the
statute
Accordingly,
the
definition
of
confidential
data
will
be
wor1~
out
or
a
case—by-case
basis
by the
Board.
A
provision
for
c
inc
fees
in
Rule
107
(e)
is
based
on
our
own
estimate
of
t~
actual
cost
to
the
Board
of
reoroducinq
the
or~:~ina1
docu~:~t.
Rule 109 essentially incorporates the notice reauireznents
of the Environmental Protection Act and of the Public Meetings
~ct in regard to Board meetings, making clear, in accord with
the overall policy of these rules, that wherever possible
the Board will satisfy its requirements of notice by the mailing
of a newsletter or of special notice to everyone on the mailing list.
No
attemnt is made in this rule to detail the situations in which
the law nermits the Board to hold executive sessions.
The
Rule does contain a statement of the Board’s policy to make
all imnortant decisions at meetings open to the public.
The Public Meetings Act,
however, does nermit executive sessions on certain limited tvnes of
matters,
and
we have reauested an oninion from the 7~ttornevCeneral as the the scope of that
authority,
In narticular, it may be desirable for the Board,
like any other tribunal, to hold preliminary discussions of
the merits of adjudicative cases in private,
since
public
discussion of such matters prior to an actual decision might
tend to encourage improper attemnts to influence the Board’s
decision.
Rule
110
specifies the orocedure to be
followed
by the
Board upon receipt of an informal complaint about a particular
pollution source.
This rule reflects the statutory separation
of
the
powers
of
prosecution
on
the
one
hand
and
decision
on
the
other
and
indicates
that
the
Board itself has no power
to
institute
proceedings
against
individual
polluters.
Part
II.
The
rules
in
this
oart
detail
the
procedure
for
the
nroposal
of
new
regulations,
for
the
authorization
of
a
hearing,
and
for
hearing
procedures
regarding
rule-making
proposals.
Particular
attention
is
called
to
Rule
203
(b),
which
requires
the
proponent
of
a nrooosed regulation
to
prenare
and
submit
a
statement
of
the
reasons
supporting
his
proposal.
This
statement
should
serve
essentially
the
same
purpose
in
rule-
making oroceedings that is served by the complaint in an
individual pollution case,
namely, to aporise other interested
persons of the basis for
the
pronosal in order to afford
a
meaningful onportunity for evaluation.
Similarly,
the
proponent will be expected to support his proposed rule with
testimony or other evidence at nubile hearing.
Although the
Board itself has the obligation
to
propose
regulations
on
its
own,
its limited staff will require the
Board,
in
many casec,
to
act
as
arbiter
on
the
basis
of evidence oresented by others
in
rule—making
as
well
as
in
adjudicative
nroceedings~
Rule 205 requires certain hearings to be held within 60 days
after the receipt of the
proposal
in order to eliminate undue
delay on the part of the Board.
Rule 206
(a) permits the hearing officer to require the
submission of written expert testimony in advance of the
hearing.
The reason for this provision is to facilitate
cross-examination of experts at the hearing itself.
An
alternative means of achieving the same goal, at the discretion
of the hearing officer,
is to require witnesses who have not
submitted prior written testimony to attend a later session
of the hearing for cross—examination purposes.
Rule 212 requires the Board to file a written opinion explain-
ing its reasons for the adoption of any new or revised regulations.
Such an opinion serves a number of purposes, such as informing
the public as to the reasons for the decision, requiring the
attention of Board members to the facts in the record and
building
a
case
to
support
the
legality
of such regulations
in the event of a future court challenge.
Rule 213, which provides for the conduct of other types of
non-adjudicative hearings by the Board, will apply among
other things to exploratory hearings held on substantive
subjects as to which no specific regulation has yet been
proposed,
Such a hearing would facilitate the gathering of
information
on
which
the
Board
can base an intelligent
proposed regulation.
We were asked to specify what additional
kinds of hearings might be held under this provision.
At
this
early stage in the Board’s existence we are unable to do so and
prefer to retain the flexibility afforded by the statute, which
allows us to call new kinds of hearings without first amending
the regulations.
Part III.
The rules in this part specify the contents of and the means
of serving complaints in proceedings against alleged polluters,
the procedures for authorization of hearing and for notice
of hearing, and rules for the conduct of hearings and pre-
trial proceedings.
Rule 307, as in the case of certain rule—
making proceedings, requires adjudicative hearings to be
set no later than 60 days after the filing of the complaint.
1-46
Rules 308 and 315 essentially spell out the relationship
between the hearing officer and the Board.
The hearing
officer, without interference by the Board,
is to conduct
the hearing and pre—trial proceedings and to pass on all
motions not dealing with the merits of the case.
Interlocutory
appeals from the decisions of the hearing officer on such
motions are forbidden in the interest of conducting an
expeditious and orderly proceeding.
Provision is made for
the hearing officer to obtain
a Board ruling on important
questions that arise prior to the conclusion of the hearing
by certification, but such a procedure is intended to be
rarely invoked.
Any motion to dismiss on the merits or for
failure to state
a claim or for want of jurisdiction can be
decided only by the Board, and under Rule 320
(c)
the
hearing officer is reauired to admit any evidence whose
admissibility depends upon an arguable interpretation of
substantive law, in order once again that the merits of the
case be decided only by the Board itself.
special appearances to contest jurisdiction are allowed by
Rule
308
(j),
The hearing officer,
under Rule 309, is given broad power to
consolidate or sever claims or to add parties in the interest
of
convenience.
Intervention
will
be
allowed
under
Rule
310
without
the
necessity
of
oroving
that
the
intervenor
suffers
an
injury
distinct
from
that
of
the
population
as
a whole.
However,
the
heairng
officer
may refuse a petition for inter-
vention where such action
is necessary in order to assure an
orderly and expeditious hearing.
Rule 312 authorizes pre-hearing conferences largely for the
simplification of issues and not principally as a
medium
of
settling
cases.
The
hearing
officer
himself
has
no
authority to settle a case, and proposed Rule 333
requires
the approval of the Board for settlement or compromise of
any case pending before the Board.
If the parties agree on a
settlement, a written statement of the reasons for the agreement
should be submitted
to the Board.
Rule 313 provides for limited discovery
in
order
to
minimize
the element of surprise at trial and to facilitate
the development of a comolete record.
Recognizing that
discovery procedures and litication over the availability of
such
procedures
have
at
times
proved
a
ready
instrument
for
1—41
delay of court actions, the Board proposes to delegate wide
discretion to the hearing officer to determine when discovery
is appropriate.
Consequently, the comolicated provisions of
the Federal Civil Rules regarding discovery, which have
served largely to promote further litigation over discovery
procedures, are not included in these Rules.
Rule 322 provides a limited opportunity for the Board or the
hearing officer to view the premises involved in ~n individual
enforcement case.
Although the value of such a view±nqto
Board members actually participating may be considerable,
the
impact of a viewing is largely subjective.
Consequently, the
Board thought it desirable to allow any marty
a veto over any
viewing by less than the entire Board since the results of the
viewing do not appear
in the written record.
Rule 330 permits the parties to file written briefs and, with
Board permission, to make oral arguments before the Board after
the close of a hearing.
In order to encourage individual
Board members to make independent study of the transcript and
briefs, no provision is made in these rules for recommended
findings or conclusions from the hearing officer at this time.
Part IV.
This part prescribes variance procedure,
largely by incorporatinq,
to the extent applicable, the procedures for enforcement hearings
in Part III.
There are, however, significant procedural differences
between the
two kinds of cases.
For example,
Rule 401 requires
simultaneous filing of a variance petition with the
Agency and with the Board in order that the Board may he
apprised of the pending netition at the outset of the running
of the period during which the Board must decide a variance
case.
Although the statute does not require a hearing in every
variance case,
Rule 405
(b) makes clear that the Board will
not grant any variance petition without adequate proof by the
petitioner that compliance with the regulation or law from
which variance is sought would moose an arbitrary or unreasonable
hardship.
This means that a hearing will be recuired
in the hulk of
variance cases in order to help ascertain the truth of matters alleged
in the petition, even if there
is no
objection filed to the grant of
the variance.
In some cases, however, affidavits may suffice,
and the equivalent of summary judgment may be granted.
1 —48
Rule 406 provides that a request for a continuance by the
petitioner for a variance constitutes a waiver of the riqht to
a decision within 90 days.
Rights given by statute,
like such
constitutional rights as trial by jury, may be waived,
We
cannot permit a litigant to obtain an automatic variance by delay
which he brings about by his own action.
Special porvision is made in Rule
409 regarding petitions for
variance from a regulation within 20 days of its effective
date in accordance with the statutory provision that the
filing of such a petition will stay enforcement of the new
regulation during the nendencv of the variance petition
before the Board.
Part V.
Rule 502 provides for the contents of a petition contesting
the
denial
of
a
permit
by
the
Environmental
Protection
Aoencv
and provides that Board proceedings to review such denial
shall,be conducted in accordance with the rules
for enforcement
cases in Part III.
Rule
503 pràvides a orocedure whereby any
person
may
challenge
the
Agency’s
grant
of
a
nermit on the
ground that the Agency acted in violation of the law or
regulations in granting the permit or may seek a cease and
desist order against the activity described in the permit on
the
ground
that
it
would
cause
a violation
of
the
Act,
of
the regulations, or of a Board
order.
These
provisions
are
supported
by the statutory right of any person to file
a complaint against
anyone---including the Agency--allegedly violating or threatening
to violate the law or the regulations.
Rule
504
provides
a
special
procedure
for
the
nuclear
facilities
permits required by Title VIA, of the Environmental Protection
Act.
The Board has not yet devised a format for the environ-
mental feasibility report required to be filed by the statute
and by Rule
504
(3).
It is the implication of the proposed
rule that this feasibility report will entail something more
than
the
description
of
the
facility
and
of
contaminant
emissions and methods for their control which are required
by subsections
1 and
2 of the same rule.
Part VI.
Rule 6—1 spells out the Board’s present conception
of the proper interpretation of the statutory requirement
of full financial disclosure by Trd
members.
It is the
Board’s
view
that
the
filing
of cen~1ictof
interest statements by Board memb~
on their anpoint,aent
in July 1970,
as required by the Oovernor’s Ethics Code,
is not sufficient to satisfy the additional requirement of
the Environmental Protection Act.
Snecificallv, what is
needed
in addition
is a full statement of
income,
of
gifts
and of intangible assets and real pronerty in order that
the
nubile
may
determine
for
itself
whether
or not a Board
member’s
outside
connections
create
for
him
a conflict
of
interest.
The
rule
provides
that
such
a
statement
will
he
made
annually
and
will
be
available
for
public
Lnspection
at
the
Department
of
Personnel.
Rule
602
attempts
to
limit
contacts
between
Board
Members
r
staff
and
the
public
outside
of
formal
Board
proceedings.
t~S
jfl the case of judicial nroceedinqs,
it
is
imperative
that
decisions
in
cases
involving
individual
pollution
sources
be
based
solely
upon
evidence
which
is
properly
a
part
of
the
formal
record.
Somewhat different
considerations
apply
to
rule-making
proceedings
because
of
the
wide
ranging
nature
of
the
inquiry
and
because
such
proceedings
are
not
tynicallv
of
an
adversary
nature.
Consequently,
in
rule-
making
matters,
contacts
between
Board
members
and
others
outside
the
formal
record
are
not
forbidden.
However,
Board
members
are
admonished
to
make
every
reasonable
effort
to
make the results of such informal contacts
a Part of the
formal
record
in
order
that
information
on
which
the
Board
relies
cart
he
subjected
:o
possible
rebuttal.
A
qreat
many
suggestions
for
amendinc
the
pronosed
rules
were
made
at
the
public
hear~nqs,
A
number
of
these
sugaestions
have
been
adopted,
and
explanations
of
those
chances
can
he
found
in
exmlanatorv
statements
issued
by
th-~Board
on
September
25
and
by
the
Chairman
October
8
when
the
finai
amendments
were
made.
The
suggestions
that
were not
adopted
are
too
numerous
to
he
discussed
individually
here.
Resmonses
to
many
ef them
can
he
found
in
the
hearing
transcripts.
1
—
SC,
One category of criticisms, however, deserves special comment.
A
witness on behalf of the Illinois Manufacturers Association and the
Chicago
Association
of
Commerce
and
Industry
reneatedlv
argued
that
the
Board cannot prescribe by rule procedures which have not been prescribed
by
the
statute
itself.
He
argued,
for
examnle,
that
theBoard
had
no
authority to permit cross—examination of witnesses by members of the
public,
to
nermit
intervention,
or
even
to
give
notice
to
nersons
not
specified
in
the
statute.
This
last
suggestion
shows
the
weakness
of
the argument.
The position taken equally would mean that the Board lacks
power to prescribe discovery,
orehearing conferences, rules of evidence,
or any of the myriad procedural details that could not be provided by a
General Assembly with many other things to do,
It would denrive of all
significance the explicit statutory authority, in section 26 of the En-
vironmental Protection Act, for the adoption of orocedural rules by the
Board.
The General Assembly’s silence on specific issues such as inter-
vention is to be interoreted as leaving the issue to the Board to decide
under the general delegation of rule—making authority in section 26.
As
the Attorney General argued in resoonse to the
IF!A’s position,
when the
General Assembly wanted to limit an otherwise broad grant of rule-making
authority to the Board it said so explicitly, as in section 27, which
expressly denied the Board power to establish money charges for the
emission of air or water contaminants.
The IMA’s position is wholly without
merit.
The provisions of the Rules here in question are suoported by the
authority of section 26.
IC
/
,~
/.
00
~
J~g~fl
,
I,
Regina E.
RXan,
certify that the Board
Ooinion this
~
day of October,
1970.
• e~~t
7
~
of the
B
rd
(-I
I dissent:
has apnroved the above
1
—
51