ILLINOIS POLLUTION

CONTROL BOARD

July

19,

1984

IN THE MATTER OF:

PROPOSED CONTINGENT PENALTY

PROCEDURAL

RULE,

35

ILL0

ADMO

)

R83~37

CODE

iO3~i8i~1O3~186

INTERIM

ORDER

OF

THE

BOARD

(by

J0

Anderson):

In reviewing this Agency proposal,

and supporting statement

of

reasons, the Board has identified several

concerns

which

should be addressed prior to a Board

ruling on the merits of this

proposaL

The Board believes that,

although a

hearing on

proposed procedural rule changes

is

not required

or

desirable

in

every case,

the most efficient mechanism in

this instance for

receiving additional information would

be through the hearing

process0

Therefore,

the Hearing Officer

is directed to schedule

and

hold a hearing at which the below

listed questions are

addressed,

The Board would also particularly

request

participation at hearing by

the

Office of

the Attorney

General,

inasmuch as the petition on its

face does not indicate

that this

is

a joint petition,

Without precluding hearing

participants from addressing

other issues, the Board wishes to receive

testimony concerning

the following:

1,

The

Statement

of Reasons, at p0

1~2, asserts

in

general

terms

various

difficulties

in

collecting unpaid penalties

via

civil

suit

in

the

circuit

court

pursuant

to

Section

42(d)

of

the

Act,

The

Board

would

appreciate data in

support

of

these

assertions0

Based

on

this

data,

what

would

be

the

anticipated

increase

in

the

Board~s caseload

if

the

proposed

procedure

is

adopted?

2,

The

proposal

provides

for

contingent

penalties only

in

stipulated

cases0

Is

there

a

policy

reason

for

excluding

the

possibility

of

contingent

penalties

in contested

cases?

If

so,

what

is

it?

3,

The

Board,

in

various

cases,

has

expressed

dissatisfaction

with

its

lack

of

information

concerning

how stipulated

penalty

amounts

are

reached,

~at

standards would

be

used

in

determining

whether

a

contingent

penalty

would

be

proposed

in

a

particular

case?

Could

they

or

should

they

be

included

in

the

rule?

~at

use would be

made

of

contingent

penalties

as

a

negotiating

tool?

As a practical matter,

does

the

contingent

penalty

structure

achieve

the

same

end

as

the

suspended

penalty

structure?

---

40

~o~

6.

~c”c

~4

)

7,

iT

Board

the

a~’o~is

expressed

in

the Statement at

p.

4,

the

:ç

a

‘nectinism

whereby

the burden of proving

w~

tI’

the

Respondents

Is this consistent

~

the

Act,

providing that the burden of

is

the

omplainant?

to

4

suggests

that

in a non~compliance

type

prces~ding

that the amount of a

~

alt” could not

be

relitigated.

How

is this

c~ct 0

~3(;

of

the Act, particularly

as

~,

~ns

a

new

docket

for

each contingent

~th

~he

decision

to

be

based

exclusively

on

C

~uant

to

bectton

41

imposition of a

°~

~ty,

as

a

practical

matter,

allow the

)o

tunity

to

relitigate

the underlying

R~

and

UIC

Procedural

Rules

proceeding

the

~ous

rulec

on

June

14,

1984,

including

~d

UIC

sett. ements,

What

is the

perceived

~p

between

this

proposal and R84-1O?

Would

proposal

adversely

affect, enhance,

or

have

inois

authorization

to handle the RCRA

ri

lc~

°±

~hc

illjflojS

Pollution

Cortrol

c~

the

at ove

Order

was adopted

on

£

1984 by a vote

Dorothy

M~ d~unn, Clerk

Illinois

Pollution

Control

Pd~.d

5.

1~