ILLINOIS POLLUTION CONTROL BOARD

May 12,

1977

IN THE MATTER OF

)

PROCEDURAL

RULE

)

 R75-1

BEVISIONS

OPINION OF THE BOARD

 (by Mr.

 Dumelle):

This proceeding began on January 23,

 1975 when the Board

voted to seek ~ub1ic

 comment on its Procedural

 Rules

 (Rules)

see Environmental Register #97 January

28,

 1975.

 The Board

especially sought any comments

 to help simplify or clarify

operations under the Rules.

 The Board feels that a periodic

review of its Rules is necessary to reflect the wisdom and

insight gained by experience.

 The last prior revision of

the Rules was R73-14,

 which was concluded on February

14,

1974.

 The Board

 feels that the revisions made in R75—l will

significantly improve and clarify operations.

 However,

 there

will undoubtedly be some changes which,

 in the next revision,

the Board will determine should have been made,

 but were not;

and some which should not have been made, but were.

The Board proceeded at the start of the present revision,

on both an “inhouse” review* of the Rules and the acceptance

and analysis of public comments.

 Comments were received

from the Illinois Environmental Protection Agency,

the

 Attorney General’s Office, Board Hearing Officers, and

 from

others who appear before the Board.

 Some of these comments

will be mentioned below.

 No formal public hearings were held,

although the Rules were discussed at many Board meetings.

On April

9,

 1976 the Board voted to publish

 a proposed

draft for Public Comment

 (Environmental R~ster #124, April

29,

1976)

 Numerous comments were once again received and

considered.

 On October 28,

 1976 the Board published a

 pro-

posed final draft for Public Comment

 (Environmental Register

#136,

 November

8,

 1976).

 On December

16,

 1976 the Board adopted

*The Board acknowledges the consecutive efforts of Timothy J.

 Stock,

Roy M. Harsch and Earon S. Davis

 in preparing drafts of these Rules.

25

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529

—2—

the proposed final draft with published changes

 (Environmental

Register #139,

 December 30,

 1976).

 At the same time the Board

published for Public Comment proposed rules to govern proceedings

under Water Pollution Regulation

 203(i) (5).

 On March

3,

1977

the Board issued its Order,

 from which Mr. Zeitlin dissented,

on

 that final segment

 (Part VI)

 of the Rules.

 The Board issued

a separate Opinion in that matter on March

17,

 1977.

This Opinion will attempt to address all of the major

revisions made in this new version of the Board’s Procedural

Rules.

 The reader would no doubt benefit from referring to

the “Summary of Reasons Supporting Adoption” which accompanied

the April

9,

 1976 proposed draft in Environmental Register #124,

April

29,

 1976.

 The October

 28, 1976 proposed final draft

further included a “Statement of Significant Changes” from the

previous draft

 (Environmental Register #136,

 November

8,

 1976).

The Board’s Order of December 16,

1976

 (Environmental Register

#139, December

30,

 1976)

 delineates the subsequent changes

except for those in Part IV: Variances, which was substantially

redrafted.

The Board’s December 16,

 1976 Order stated March

 1, 1977

as the effective date of these revised Rules.

 On March

3,

1977

the Board extended the effective date to April

1,

 1977.

As

of April

1,

 1977 all of the revisions became effective for

all cases already filed,

 or to be filed, before the Board.

However,

 upon application and the showing of excessive pre-

judice the Board may waive the immediate application of any revised

 Rule.

 The Board intends such a waiver to be available,

for

a short interim period only,

 where an applicant demonstrates

reasonable reliance on

 a pre—existing Rule and that applica-

tion of the revised Rule would be manifestly unfair and will

severely prejudice the applicant’s substantive rights.

This Opinion is not intended to be an interpretive guide

to the revised Procedural Rules.

 The Rules speak for themselves

and need no Opinion as that word is usually employed.

 Rather,

the purpose of

 this Opinion is

 to set out the major changes.

PART

I

 GENERAL RULES

102(f)

 Document

—

 clarifies Rule

 104.

102(g)

 Economic Impact Study

 In accordance with P.A.

 79-790.

104(c)

 Clarifies that exhibits need not meet “document” speci-

fications and that document requirements may be waived

for citizen complaints.

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530

—3—

104(d)

 Addition of last sentence will make it easier to

identify attorneys of record.

104(e)

 The addition of this Rule makes explicit the previous

Board practice of not accepting microfiche for filing.

107(c) (3) Board denial of an application for non-disclosure does

not permit inspection by the public until the time

for appeal has run.

107(f)

 The cost of copies shall be determined by the Board.

109

 Some notice requirements for special meetings and

changes in the regular meeting schedule have been

deleted.

 This conforms with the Illinois Open Meetings

Act.

110

 Deletes requirement that Clerk circulate a monthly list

of informal complaints and Agency responses to each

Board Member.

PART II

 REGULATORY AND OTHER NONADJUDICATIVE HEARINGS AND PROCEEDINGS

202(b)

 Added

 in accordance with P.A.

 79—790.

203(b)

 A new sentence requires that a proponent of a regulation

discuss the relevant factors listed in Section 27 of

the Act.

204(b)

 Amended to conform with Board practice.

205(c)

 This new rule was added

 to conform with the Board

practice of continuing hearings on the record without

requiring further notice.

208(b)

 The addition of this Rule reflects the requirement

that all witnesses be sworn.

209

 This is the former Rule 206(b).

210

 This is the former Rule

 209.

 The 10-day period was

changed to

 14 days.

211

 This

 is the former Rule

 210.

It

 is clarified to state

that failure to submit corrections to

 a transcript

within 14 days constitutes a waiver of the same.

212(a)

 This

 is the former Rule

 211.

 Comments on revisions

must be submitted within

 14 days of notice rather

than the previously allowed 21 days.

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531

—4—

212(b)

 This was added in accordance with P.A.

 79—790.

213

 This

 is former Rule 212

214,

and

215

 These Rules were added in accordance with P.A.

 79—

790.

216

 This

 is former Rule 213.

PART III

 ENFORCEMENT PROCEEDINGS

303(c)

 The hearing officer may join certain parties.

305(b)

 Filing requirements are clarified.

305(c)

 Service by mail is presumed complete four days after

mailing.

307(a)

 Hearing is to be held within

 90 days of filing,

 rather

than the former

 60 day limit,

 unless the Board orders

otherwise.

Rule 307 has been substantially reordered.

307(d) (4)

 Former Rule 307(b) (3) was deleted.

308(a)

 Thirty

 (30)

 days to file answer rather than 20 days.

Motions preliminary to hearing

 14 days rather than

 5 days.

Motion to strike or dismiss

 14 days rather than

 15 days.

308(c)

 Response to motion

—

 7 days rather than

 5 days.

308(d)

 Deletes reference

 to oral arguments on

 a motion before

a hearing officer.

308(e)

 Upon the suggestion of one of the Board’s Hearing Officers,

the Board clarified that

 a hearing officer may not rule

upon a motion to dismiss or decide a case on the merits,

etc.

 The former Rule

 308(e) was deleted.

 Subsequent

Rules have been renumbered.

308(i)

 Former Rule

 308(j) was clarified to show that a party

may preserve

 a jurisdictional objection if it

 is raised

in accordance with Rule

 308 (a)

25

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532

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310(c)

 The rights of an intervenor are expanded.

311

 This Rule has been redrafted and reordered.

 Only the

Board may grant a single continuance which exceeds

45 days, or any other continuance which would cause

the total time of all continuances granted to exceed

90

 days.

 r~otionsfor such continuances before the

Board must be written and supported by affidavit.

Subsection

 (c) was added to avoid continuances where

the petitioner

 in a variance or permit denial appeal

case has not accordingly waived application of the

deadline for final Board action.

313

 This Rule has been redrafted for clarification and

 to insure that the scope of discovery is

 as broad

as that allowed under Illinois

 law.

314(a)

 This Rule was amended to insure that a Respondent has

and

(b)

 adequate time

 to respond to a Request for Admission.

314(e)

 This Rule was changed so as not to be redundant to

the new Part VII:

 Sanctions.

316

 This Rule was redrafted to clarify the authority of

hearing officers.

318 and

319

 These Rules have been reversed in order.

 Rule

 318(k)

was added to reflect past Board practice.

319(a)

 A witness for a party must testify via direct examination.

A written statement submitted by a person not a party or

witness for a party rn~ybe stricken if the person is not

available

 for cross—examination.

 The hearing officer

must

permit reasonable oral testimony

 by non-parties.

319(b)

 This Rule was added to reflect the Board practice of

requiring

all.

witnessus

sworn.

Subsequent

Rules

were

renumbered.

320

This

was

formerly

numbered

Rule

312,

which

 sub-

section

 (b) was deleted as redundant.

321

 This

 is a new Rule added to regulate the use of

written narrative testimony,

 substantially as suggested

by the Environmental Protection Agency.

324

 This

 is the former Rule

 326.

325

 This Rule was redrafted to include former Rules

324 and 325.

326

 This

is

 former Rule 328 with a provision for motions for

supplemental pleadings.

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533

—6—

327

 This

 is the former Rule

 320 with the clarification that

the Board’s Order be limited to the pleadings.

328,

329

330

 These were former Rules

 329,330, and 331,

 respectively.

331

 This is

 former Rule

 333 and has been clarified and

somewhat expanded.

332

 This rule has been rewritten for the sake of clarity.

333

 This

 is former Rule

 334.

 The time for responses was

changed from 10 to 14 days.

 This Rule was redrafted

to clarify that motions under the Rule must be filed

within

 35 days of the adoption of the final Board

Ordei~, and that after the Board rules upon the motion

the

 35 day appeal period runs anew.

334

 This

is

 a new Rule which clarifies

 the procedure for

relief from Board Orders other than via Rule

 333.

PART IV

 VARIANCES

401

 This Rule was rewritten for clarity and expanded.

Subsection

(b)

 requires that a Petitioner make an

election regarding whether a hearing is desired.

If the right

to

 a trial-type hearing is waived,

Petitioner has the burden of submitting affidavits

or other proof in support of the material facts

alleged.

 This proof must be sufficient

 to enable

the Board to rule upon the petition or it will be

dismissed as inadequate.

402

 This new Rule clarifies that extensions of variances

constitute new Petitions except that information

already submitted may be incorporated into the

new proceeding.

403

 This

 is former Rule 402.

 The potential

 requirement

of using special mailings of the Register to provide

notice of variance petitions within

 21 days of filing

has been deleted.

40

 This is former Rule

 403.

406

 This new Rule allows responses

 to Recommendations

within

 7 days of receipt.

—

534

—7--.

407

 This is former Rule 405 and has been rewritten for

clarity.

408

 This is former Rule 406 and has been rewritten.

The

70 day time period has been changed to 60 days within

which to hold a hearing.

409

 This is former Rule 407 with an amendment clarifying

the burden of proof.

410

 This

 is former Rule 408 and clarifies the workings of

the 90 day decisional period.

411

 This

 is former Rule

 409.

412

 This

 is former Rule 410 and clarifies that a petition

for the Board to assume the costs of hearing transcripts

must be filed prior to the hearing.

PART V

 PERMITS

502

 This Rule has been rewritten to includeprovisions.

that Agency issuance of

 a Permit with conditions or

limitations be subject to Permit Appeal and that any

Permit Appeal must be filed within 45 days of the

mailing of the Agency’s

 final decision.

 The Rule

further specifies that the Agency shall

 file its

record within

 14 days of notice of the petition.

Rule 502(b)

 deals with NPDES Permit Appeals.

503

 This Rule specifies

 that,

 aside from the standard

requirements for enforcement actions,

 enforcement

actions brought pursuant to this Rule must also

meet the relevant requirements of Rule

 502(a).

Of course,

the

 45 day requirement of Rule

 502(a) (2)

is not relevant to

 a complainant who was not an

applicant

 for a permit,

 The Rule 502(a) require-

ments which were intended to apply

 to Rule 503

enforcement actions are subsections

 (a) (3) through

(a) (6).

 The three subsections incorporating Part 111

Rules were referenced via Rule

 502(a)

 to avoid

redundancy.

504

 This

 is former Rule 505.

 Transcripts must be furnished

to the Board within 14 days of the hearing rather than

the previously required 15 days.

 Transcripts for a

—

535

—8—

proceeding under Rule 503 are governed by Rule 328

inasmuch as such cases are enforcement actions and

not permit appeals.

 Old Rule

 504, Nuclear Facilities

Permits, was deleted due to Federal pre—emption.

PART VI

 WATER REGULATION 203(i) (5) HEARINGS

This Part is discussed

 in the Board’s March 17,

1977

Opinion.

PART VII

 SANCTIONS

701

 This ~Ru1e provides for various sanctions

 for failure

to comply with Procedural Rules or Orders of the Board

or hearing officers.

PART VIII

 CANONS OF ETHICS

This

 is former Part VI.

 Rule 801 replaces former Rule 601.

PART IX

 JUDICIAL REVIEW

This Part has been clarified.

 Subsection

 (c) was added to

clarify that action on a Rule 333 Motion

 is a final action.

This Opinion constitutes

 the Board’s

 findings of fact and

conclusions

 of law.

I, Christan

 L. Moffett,

 Clerk of the Illinois Pollution Control

Board, hereby certify the above Opinion was adopted on the /~1~

day

of May,

 1977 by a vote of

Christan L.

 offet ,/)~lerk

Illinois Pollution ~6~trol

 Board

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536