ILLINOIS

POLLUTION

CONTROL

BOARD

IN THE

MATTER

OF

PROPOSED

AMENDMENTS

TO

PROCEDURIL

RULES

401 and

405,

Proposed

Rules.

Second

Notice

OPINION

AND

ORDER

OF

THE

BOARD

(by

D.

Satchell):

On

July

10,

1980

the

Board

Iroosed

amendments

to

Procedural

Rules

401

and

405

(Proposed

Rule,

First

Notice~)

The

proposal

was

published

in

the

Environmental_Register

Number

220

on

July

21,

1980

and

In

Illinois

Recister

on.

August

1,

1980.

The

comment

period

has

elansed

and

the

Board

has

received

oniy

one

comment,

that

of

the

Illinois

Environmental

Protectior:

Agency

(Agency)

The

Board

recently

amended

these

rules

in

R79—9

(Proposed

Order

of

the

Board~

June

22,

1979,

34PcB

ll3~

Opinion

and

Order

of

the

Board,

September

20.

1979,

3~ RIB

433;

Illinois

Reqister,

October 12, l9~9,

-~

~‘

‘

‘a

~ou,

orelroer

29,

19°9,

36 PCE

209;

I:Llii~ois

Rnq:Li~.ter bacember

7,

1979

RI~

111,

128)

Because

a

number

of

mis:interprenations

of

the

adopted

Procedural

Rules

have

arisen,

the

Board

mroposed

no

modify

them

for

the

purpose

of

clarification.

The

June

22,

1979

Order

of:

the

Board

in

R79~-9

promosed

to

amend

only

Rule

405

to

require

that

the

Agency

in

its

recommenda-

tion

provide

an

analysis

of

federal

Law,

In

its

comments

of

August

21,

1979

the

Illinois

Em’±rcnmer~u.alProtection

Agency

requested

that

Rule

401

be

amended

to

olace

the

duty

on

the

peti-

tioner

to

make

the

init:ia:L

~

~f:

federal

law

in

the

variance

petitions

The

Agency’s

duty

under

Rule

405

was to give its views

with respect

to

the

petitioner’s

asserhions

concerning federal

law.

The Agency’s

couanent

was

substantially

adopted in

th.e Board’s

Opinion and Order

of

September

20~. .1979,

In

a

dissenting

Opinion,

Mr.

homer

sma,ted,

:tt

seems somewhat

unfair

to

olace

a

sic

I

—~“~-c

~i

~

h’irccri

cm

those

~nc~

v~dua1s

or

corporate

entlties

who

recuest

he1~

from

the

Board

by

a

van

ance

metition

01

No~rmb,o

U

Lc71

i

m

ioant

Commibtee

on ~

ministrative

Ru:Les

objected

to

the

ruiemakinc,

stating

that,

“The

proposed

amendments

aecuire.

netiSionor

to

prove

con-

sistency

with

apPlicabLe

federal

laws

end

regulations

“

The

Joint

Committee

fu~i1w

r’

~ho ho

t

ho

Cf

1de

tbe

Board’s

authority,

the

Board,

not

the

metitioner,

was

given

the

responsibility

to

ensure

conformity

with

federal

laws

and

regulations.”

Legislation

was

proposed

placing

the

burden

of

proof

on

the

Agency.

---

The Agency

filed comments on September 15,

1980.

It supports

the proposed

language in Rule 405(a) (5), which

requires that the

Agency

include

an analysis of federal law in the

recommendation.

However, the

Agency opposes the modification

of Rule 401 because

the burden of

initIally

establishing that the

requested relief

can legally be

granted should rest on the petitioner.

Before

discussing what is meant by “the burden

of proving

consistency

with

•federal laws”

it is necessary to

clarify some

of

the ways in

which federal law acts upon the

Board’s jurisdic-

tion.

One

must

answer at least three questions to determine

whether

the ~Board can grant a variance consistently

with

federal

law:

1.

What is the text of the federal

law?

2.

What does the text mean?

3.

~ffiàtare the operative facts needed to show compliance

with fedetal law or entitlement to a variance or cx—

emstion under federal law?

The

Board does not require that the text of federal law be

proved

as

a fact.

The Board takes official notice of the

text

without

even so stating.

No one objects to this procedure

Ill,

Rev.

Stat.

(1979)

oh.

51,

§10 et seq.~

It is useless

to

assign

a

burden

of proving the text of federal law

The

text

of federal regulations is

sometimes helpful it

determining

the medning..

In addition the Board often considers

interpretations

by TJSEPA, court decisions and the legal arguments

advanced

by

the Agedcy and the variance petitioner.

Parts of

the

petition

and

recommendation sometimes~resemble appellate

briefs

or

memoranda

of law.

The interpretation of the applicable

law

rests

with thd Board,

subject to review by the Appellate Courts

and

in

some

cases

by USEPA~

However, this is not a matter of

evidence.

The

fact

that

the

bumden

of

proof

is

on

the

petitioner

does

not

infer

that

the

Agency’

s

legal

arguments

are

presumably

correct.

There

is no burden of proof as to the meaning of

federal

law.

Usually

the

Board must make findings of fact to determine

the

effect of

federal

law.

For example, the Board must determine

what

effect a

facility’s emissions will have on ambient

air quality or

whether a

treatment technology is reasonably available to

the

petitioner.

The burden of proving these facts

is determined by

federal

law.

---

Rule 401 is a

rule concerning pleading.

The

burden of proof

is fixed by the

substantive

federal

law.

Usually the burden of

pleading an issue

lies with the party

having

the burden of proof,

however, there are

notable

exceptions.

For example,

in a negligence

action based on state law,

but

brought

in

federal

court through di-

versity of citizenship,

the defendant is

required to raise the issue

of contributory negligence by

way

of pleading it

in an answer.

How-

ever,

the burden of proving

Clack

of)

contributory negligence lies

with the plaintiff

whd~e

the applicable

state

law so provides,

reV-

gard.,ess

of the procedural

rule on

pleading

EPalmer v.

Hoffman,

318

U.S.

109

(1943).

The procedural

rules

in

question

are

similar to those

in Palmer

v. Hoffman, although

the federal/state

roles

are reversed.

There

a

federal court was

applying

its procedural

rules and state substan-

tive law.

The Board is

a

state agency

applying its

procedural rules

to a case governed by

federal substantive

law.

In either situation

the ~oruinmust

provide

procedural rules to

ensure orderly presenta-

tion of the case, hut

may not alter the

substantive

law.

As

a second example, a

party seeking

to enforce a contract has

the burden of

proving

that

all the

conditions

on his part have been

satisfied.

However,

in Illinois the

plaintiff

need not set forth

in the complaint the

detail of performance

of conditions:

“It is

sufficient to allege

gen~erailythat the

party

performed all of the

conditions on his

part;

if the allegation

be denied, the facts

must be alleged in connection

with the

denial

showing wherein there

was

a failure to

perform.”

TSupreme Court

Rule

133(c);

Ill. Rev.

Stat.

ch.

llOA,

Section 133(c).

In

a contract there may be hun-

dreds of conditions,

only

one

of

which

is

in

dispute.

The plead--

ings are shortened

greatly if the defendant is

obliged to point

out which condition

is

in dispute, as opposed to

the alternative

where the plaintiff

is required to plead the

lengthy affirmative

proposition.

Placement of

the burden of pleading

on

the defendant

does not shift the burden

of proof from

the

party seeking to enforce

the contract.

Similar

considerations

prevail

with respect to olead.-

ing consistency of

variances

with federal law.

Rules 401(d),

401(e)

and 401(f)

have

been modified to

require

petitioners to

“indicate

whether”

the Board

can grant the requested

relief consistently

with federal

law.

Where

a detailed analysis

is

unnecessary or

unavailable,

the petitioner

may elect to present

only a legal

conclusion as to whether the relief

is

consistent or

not consistent

with

federal law.

Rule 401(g)

has

been

added:

“The

petition

may include an

analysis of applicable

federal law and legal

arguments

and facts

which may be necessary

to show compliance

with federal

law.

If

it does not and

petitioner

subsequently

files

a pleading containing

40—105

---

—4—

such,

it will be deemed an amended petition.”

Under Rule 405(a)

(5)

the Agency is

required to produce

an analysis.

The petitioner

may include the

detailed analysis in the

petition or may await the

recommendation.

If

it

elects

the latter and

then decides to pre~—

sent the Board with its own analysis,

the

Board will deem the

pleading an amended

petition.

The decision

period will be moved

up, giving the Agency the opportunity to

file

an amended recom-

mendation.

The petitioner may respond to

the

Agency analysis under Rule

406 without restarting the decision period.

Whether the analysis

is

a response or amendment depends on the extent to which it intro~

duces new material.

In

this context new material may include,

among other things,

new facts, reference to

rules not mentioned in

the recommendation and

legal arguments

which are not merely the

negation of the Agency’s arguments.

This will be

decided on a

case—by—case basis under the

principles

applicable to responses

in general.

The

amendments

which

the

Board

previously

adopted

were not

jntended to increase the

burden

on

variance

petitioners.

A

prin--

cipal purpose was to notify

petitioners

of

the

existence of these

federal requirements

at

the

time

they

first

begin

to

prepare

the

petition.

Under the older practice some petitioners apparently

first learned of federal requirements upon receipt of the recom-

mendation.

It was then necessary to request a continuance in

order to prepare

an

analysis

of

federal

law,

The

proposed

pro--

cedures will further this purpose of advance notice.

A petition

may proceed

by one of three routes:

1.

Petitioner may include

a complete analysis in the

petition;

or

2.

Petitioner may rely on the Agency analysis;

or

3.

Petitioner may force the Agency to perform the analysis

first,

hut must extend the

decision

time if it seeks

thereafter to fIle its own analysis.

ORDER

The Board proposes to adopt the language of the July

10,

1980

proposed

rule,

first notice Order without change.

The Clerk is

directed

to file a second notice with the Joint Committee

on

Ad-

ministrative Rules.

IT

IS

SO

ORDERED.

40—106

---

—5—

I, Christan L.

Moffett, Clerk of the Illinois Pollution

Control Board, hereby ~rtify

that

~4ieabove

Opinion and Order

were adopted on the

~/1~

day ofdL1~yL6-~,

,

of

.i~’-C-~

~t~JLA~~ffl

~

an

L.

Mo

ff

.e,

Cle

rk

Illinois Pollutidri’-’Control Board