BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
REVISION OF THE BOARD’S
)
R00-20
PROCEDURAL RULES: 35 ILL. ADM.
)
(Rulemaking – Procedural)
CODE 101-130
)
COMMENTS OF THE ILLINOIS
ENVIRONMENTAL REGULATORY GROUP
UPON PROPOSED 35 ILL. ADM. CODE 101-125
NOW COMES HODGE & DWYER, on behalf of the Illinois Environmental
Regulatory Group (“IERG”), and provides the following comments with respect to the
proposed Parts 101 – 125 of the Illinois Pollution Control Board’s (“Board”) procedural
rules.
I.
INTRODUCTION
IERG is a not-for profit Illinois corporation comprised of 68 member companies
engaged in industry, commerce, manufacturing, agriculture, trade, transportation or other
related activity, and which persons, entities, or businesses are regulated by governmental
agencies which promulgate, administer, or enforce environmental laws, regulations, rules
or policies. IERG was organized to promote and advance the interests of its members
before governmental agencies such as the Illinois Environmental Protection Agency
(“IEPA”) and the Board. IERG is also an affiliate of the Illinois State Chamber of
Commerce, which has more than 5,000 members in the State.
IERG appreciates this opportunity to comment upon proposed Parts 101 – 125.
IERG will be filing a separate comment with respect to proposed Part 130.
IERG commends the Board for its efforts in revising its procedural regulations.
While IERG is supportive of most of the Board’s revisions, IERG has concerns with
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respect to some specific provisions of the proposed Parts 101-125. These concerns stem
from the substantial experience IERG and its members have in proceedings before the
Board, both in regulatory and adjudicatory matters. Some of IERG’s comments are
geared toward improvement of purely procedural aspects of appearing before the Board.
In other instances, IERG is also raising more substantive concerns with the proposed
rules, particularly where IERG believes a proposed provision does not follow the
parameters of the Illinois Environmental Protection Act (“Act”).
IERG recognizes that some the comments herein address existing provisions in
the procedural rules. However, IERG sees this as an opportunity to provide input on
areas of concern throughout the Board’s current and proposed procedural rules, with a
view toward improving those rules. The Board has an integral role in the development
and enforcement of environmental requirements in this state. IERG and its members
welcome this opportunity to comment upon the way the Board carries out that role.
II.
DISCUSSION
A.
PROPOSED PART 101: GENERAL RULES
1.
Section 101.110: Public Participation
Subsection (c) of proposed Section 101.110 pertains to amicus curiae briefs. The
Board states in this section that these briefs must consist of argument only and may not
raise facts that are not in evidence. IERG points out that the United States Supreme
Court rule for amicus briefs states that such briefs that bring “relevant matter” to the
Court’s attention may be of considerable help to the Court. U. S. Sup. Ct. Rule 37.1(a).
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IERG understands the language of proposed Section 101.110 to be in line with this
concept. If this is not the case, IERG requests clarification from the Board.
2.
Section 101.202: Definitions
IERG has raised issues with certain definitions throughout this comment and its
comment upon proposed Part 130. These comments will not be reiterated here.
The Board has defined “misnomer” which is used in proposed Section 103.202(c).
In that provision, the Board states that misnomer of a party is not a ground for dismissal
as the name of any party may be corrected at any time. This indeed reflects civil practice
in Illinois, pursuant to Section 2-401 of the Illinois Code of Civil Procedure. However,
the Board’s definition of “misnomer” is extremely broad, stating that it is a mistake in
name, giving an incorrect name in a complaint or other document. Illinois caselaw is
replete with decisions that the misnomer rule only allows correction of a party’s name
where the proper defendant has been served with a suit, and that defendant has only been
identified incorrectly in the pleading. The misnomer rule does not apply where the
wrong defendant has been sued, such that the real party in interest has not been given
actual notice of the lawsuit. See, e.g., Zito v. Gonzalez, 291 Ill.App.3d 389, 683 N.E.2d
1280, 225 Ill. Dec. 617 (1st Dist. 1997). IERG requests that the Board clarify the
definition of “misnomer” to reflect this distinction.
3.
Section 101.302: Filing of Documents
Subsection (j) of the proposed Section 101.302 deals with page limitations. This
subsection prescribes that no motion, brief in support of a motion or brief may exceed 30
pages. This is an improvement over the 15-page limit for briefs in support of or in
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opposition to any motion, under the existing Section 101.104(a). IERG questions
whether the new 30-page limit would also apply to briefs supporting a response to a
motion, or a reply thereto. The proposed rule reduces the page limit for post-hearing
briefs or response briefs (50 pages) or reply briefs (25 pages) to 30 pages. Post-hearing
briefs and response briefs will likely have much more argument and coverage of the
record than a motion on a narrower point. Accordingly, these limits should be reinstated
as in the existing Section 101.104(b).
4.
Section 101.304: Service of Documents
Subsection (f) of the proposed Section 101.304 deals with service of comments of
participants in an adjudicatory proceeding. The proposed subsection (f) states that such
participants do not have to serve comments upon the parties to the proceeding, but that
the Clerk of the Board will do so. Persons who interject themselves into an adjudicatory
proceeding should be required to provide their comments directly to the parties in the
proceeding. This will save time and is a minor effort to ensure prompt receipt of
comments.
5.
Section 101.308: Statutory Decision Deadlines and Waiver of
Deadlines
Subsection (c)(3) of the proposed Section 101.308 states that if a petitioner files a
time certain waiver before the hearing, it must be for at least 120 days. This has the
effect of restarting decision deadlines for most proceedings. This mandatory length of
waiver is excessive, particularly if a petitioner is trying to accommodate another party’s
scheduling difficulties, which may be resolved in a period as short as 30 or 60 days. If
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the Board insists on imposing some sort of minimum waiver, it should be substantially
shortened, to at most 30 days.
6.
Section 101.403: Joinder of Parties
Subsection (c) of the proposed Section 101.403 specifies that nonmoving parties
and the person sought to be added to an adjudicatory proceeding may file a response to
the motion for joinder within 14 days of service. Pursuant to section-specific comments
herein, IERG maintains that this timeframe is not realistic and requests that it be extended
to 21 days.
7.
Section 101.500: Filing of Motions and Responses
Subsection (d) of proposed Section 101.500 states that a party may file a response
to a motion within seven days of service. This response time is too short and leads to
many motions for extension of time. IERG requests that the seven-day timeframe for
motion responses be extended to 21 days, particularly given the Board’s statement that
failure to file a response will be deemed a waiver of objection to the motion.
Subsection (e) of proposed Section 101.500 states that a reply to a response to a
motion must be permitted by the Board or a hearing officer. Given the extensive motions
that are filed for leave to file such a reply, IERG requests that the Board revise this
subsection to state that replies may be filed within 14 days of service of a response to a
motion.
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8.
Section 101.502: Motions Directed to the Hearing Officer
Subsection (b) of the proposed Section 101.502 states that an objection to a
hearing officer ruling or any oral motion to the Board made at hearing will be deemed
waived if not filed within 7 days after the Board receives the hearing transcript. This
timeframe is unfair and inappropriate. By the time a party could secure a transcript, the 7
days would expire. If the Board insists on having the requirement to file the objection,
the timeframe should be extended to 21 days from the objector’s receipt of the transcript.
9.
Section 101.506: Motions Attacking the Sufficiency of the
Petition, Complaint, or Other Pleading
Proposed Section 101.506 states that all motions to strike, dismiss or challenge
any pleading must be filed within 21 days of service. This timeframe does not
correspond with that for filing an answer, which is 60 days, pursuant to the proposed
rules. According to civil practice under state and federal procedural rules, the filing of
motions on the pleadings should correspond with the timeframe for filing the answer.
See, e.g., Section 2-619 of the Illinois Code of Civil Procedure. IERG requests that the
Board align the filing deadline in proposed Section 101.506 with that of filing answers.
10.
Section 101.510: Motions to Cancel Hearing
Proposed Section 101.510 is a new provision that establishes very onerous
parameters for hearing cancellation. IERG appreciates the inconvenience that may occur
from a last-minute request to cancel a hearing. However, IERG believes the prescriptive
nature of proposed Section 101.510 could be an attempt to over-correct a perceived
problem with hearing cancellations. In reality, there are very good reasons to cancel a
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hearing, such as a settlement of the controversy on the eve of the hearing. Further, there
can be instances where a party retains different counsel just prior to hearing. In such a
situation, the attorney would not fulfill his or her ethical duties without seeking
rescheduling and time to prepare for a hearing. How would the newly retained attorney
fulfill the affidavit requirements of subsection (b) without knowledge of the parameters
specified?
Further, subsection (c) seems particularly inappropriate where a waiver of
decision deadline (where applicable) could be granted. IERG therefore requests that the
Board revise this proposed section. The Board could provide that a hearing officer may
grant motions to cancel hearings upon a showing of sufficient circumstances and a waiver
of any decision deadlines that will accommodate a rescheduled hearing.
11.
Section 101.516: Motions for Summary Judgment
Subsection (a) of proposed Section 101.516 states that responses to motions for
summary judgment must be filed within 14 days of service. Given the potential gravity
of a motion for summary judgment, the 14-day deadline for responses is inappropriate.
Extension of this deadline to 30 days would abrogate the need for many motions for
extension of time to file a response. Therefore, IERG requests that the Board revise this
deadline from 14 days to 30 days.
12.
Section 101.604: Formal Board Transcript
The proposed Section 101.604 states that motions to correct a transcript must be
filed with 14 days of the Board Clerk’s receipt of the transcript. This does not allow
enough time for attorneys to receive the transcript from the Board, send the transcript to a
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witness, receive corrections, prepare a motion to correct the transcript, and file the
motion. This 14-day deadline should be expanded to 28 days from the party’s receipt of
the transcript from the Board, which is in accord with Ill. Sup. Ct. Rule 207(a).
13.
Section 101.618: Admissions
Subsection (e) of proposed Section 101.618 deals with admission of the
genuineness of documents. The Board’s existing rules state that the documents subject to
the request do not have to be provided with the requests if the documents have already
been furnished. Subsection (e) of the proposed Section 101.618 deletes this element.
IERG requests that the Board reintroduce this to the proposed rules, to avoid unnecessary
duplication of documents.
14.
Section 101.620: Interrogatories
Subsection (b) of proposed Section 101.620 states that answers to interrogatories
must be served in 20 days. This is a very brief timeframe, particularly where complex
technical issues are involved. IERG therefore requests that this deadline conform to civil
practice rules, i.e. 28 days after service. See Ill. Sup. Ct. Rule 213(d).
15.
Section 101.902: Motions for Reconsideration
The Board has substantially revised its standard for reconsideration, to include
grounds such as new evidence, a change in the law or “any other reason.” IERG does not
necessarily take issue with the first two items. However, “any other reason” is far too
broad a standard, precluding any certainty in Board decisions. Therefore, IERG requests
that the Board delete this part of proposed Section 101.902.
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B.
PROPOSED PART 102: REGULATORY AND INFORMATIONAL
HEARINGS AND PROCEEDINGS
1.
Section 102.304: Hearings for Clean Air Act Amendments
(“CAAA”) Fast Track Rulemaking
Proposed Section 102.304 prescribes the parameters for hearings for CAAA fast
track rulemakings. Section 28.5(g) of the Act sets forth the requirements for those
hearings. These requirements are not clearly followed at proposed Section 102.304. Like
Section 28.5(g)(l) of the Act, proposed Section 102.304(b) provides that the first hearing
is reserved for the IEPA testimony and witnesses. However, Section 28.5(g)(1) of the
Act also requires that the IEPA’s witnesses be available for questioning. Proposed
Section 102.304(b) should be revised to make clear that persons would be able to
question IEPA witnesses at the first hearing.
Proposed Section 102.304(d) states that the second hearing is for comments upon
the Department of Commerce and Community Affairs’ economic impact study.
However, Section 28.5(g)(2) of the Act states that the second hearing “shall be devoted to
presentation of testimony, documents and comments by affected entities and all other
interested parties.” Proposed Section 102.304(d) should be revised to add this
opportunity for participation by affected entities and other interested parties.
IERG also notes that there are several requirements in Section 28.5 of the Act that
are not specified in the Board’s rules. IERG seeks clarification from the Board that these
statutory provisions will be followed.
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2.
Section 102.424: Prehearing Submissions of Testimony and
Exhibits
Proposed Section 102.424 is taken from the existing Section 102.280. Existing
Section 102.280(b) states that the hearing officer may require prehearing submission of
testimony and exhibits by the proponent or other participants. Proposed Section
102.424(b) adds prehearing submission of questions, responses and answers. IERG does
not necessarily oppose such a requirement, given the proper circumstances. However,
this addition is not consistent throughout the remainder of proposed Section 102.424. For
examples, see subsections (e) and (f). IERG suggests that these provisions be made
consistent with the other revisions in proposed Section 102.424.
C.
PROPOSED PART 103: ENFORCEMENT
1.
Section 103.204: Notice, Complaint and Answer
Subsection (e) of proposed Section 103.204 provides for the filing of an answer
wherein all material allegations must be admitted or denied. Section 2-610(b) of the
Illinois Code of Civil Procedure provides that parties may state that they have no
knowledge sufficient to form a belief as to the allegations, providing an affidavit to that
effect. 735 ILCS 5/2-610(b). Parties should not be forced to admit or deny matters of
which they have no knowledge. Proposed Section 103.204(e) should be revised to
include this element of pleading.
In addition, proposed subsection (e) states that “facts constituting an affirmative
defense must be plainly set forth before hearing in an answer or in a supplemental
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answer.” IERG questions whether or not an affirmative defense may be used if it does
not come to light until the hearing.
Subsection (g) of proposed Section 103.204 requires the inclusion of language in
a complaint advising of the consequences of failing to file an answer. IERG questions
whether or not this requirement applies to cross-claims, counterclaims or third-party
claims.
2.
Section 103.206: Adding Parties
Proposed Section 103.206 specifies the procedures for adding parties to the
enforcement case. Subsection (a)(2) contains a 14-day deadline for a potential party to
respond to a motion seeking that party’s addition as a respondent. Fourteen days does not
allow enough time to retain an attorney, and prepare a response, for a person who has not
been involved in the litigation. Accordingly, this deadline should be extended from 14
days to 30 days. Further, under this proposed provision, only the party sought to be
added and the complainant may respond to the motion. IERG requests that the Board
consider allowing other parties to respond to the motion as well.
Subsection (d) of the proposed Section 103.206 states that subsections (a) – (c)
apply to adding counter-respondents, cross-respondents or third-party respondents who
are not already parties. IERG questions how a cross-respondent or counter-respondent
would not already be a party to the case. If the Board intends the phrase “who are not
already parties” to only apply to third-party respondents, IERG requests the wording to
be clarified to that effect. This issue also arises in subsection (e).
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Subsection (e)(3) of the proposed Section 103.206 specifies a 14-day deadline for
responding to a motion for leave to file a counter-complaint, cross-complaint or third-
party complaint. Again, IERG understands that only a potential third-party respondent
would be a new party to the case. With respect to those entities, 14 days is not enough
time to retain an attorney and prepare a response for a motion seeking to bring a party to
litigation. IERG therefore suggests changing the 14-day deadline to a 21-day deadline.
3.
Section 103.208: Request for Informal Agency
Investigation
Proposed Section 103.208 provides for informal investigation requests from
citizens, which are to be provided by the Board to the IEPA. Section 30 of the Act
provides for investigations by IEPA. IERG does not take issue with the concept of
proposed Section 103.208. However, IERG suggests that when a copy of the
investigation request is forwarded to the IEPA and the person requesting the
investigation, a copy should also be provided to the facility or person being investigated.
See subsection (b) of proposed Section 103.208. In addition, when the IEPA informs the
citizen and the Board of the results of its investigation or its decision not to investigate
under subsection (b), IERG requests that the facility or person at issue also be so
informed.
D.
PROPOSED PART 104: REGULATORY RELIEF MECHANISMS
1.
Section 104.204: Petition Content Requirements
Proposed Section 104.204 contains requirements as to what must be included in a
petition for variance. Title IX of the Act sets the statutory framework for variances and
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the Board’s authority for considering them. Pursuant to Section 35 of the Act, the Board
may grant a variance where compliance with any rule or regulation, requirement or order
of the Board would impose an arbitrary or unreasonable hardship. IERG urges the Board
to consider carefully whether the items in subsection (b) of proposed Section 104.204 are
necessary for such a determination.
For example, subsection (b)(5) requires that the petitioner include the number of
persons employed by the facility and the age of the facility involved. IERG questions the
relevance of this item to the Board’s decision as to whether compliance with the
requirement at issue would impose an arbitrary or unreasonable hardship. The number of
people employed or the age of a facility does not readily appear to be necessary
information for such a decision.
Further, discussion of the nature and amount of materials used in the process or
activity does not contribute to a determination of arbitrary or unreasonable hardship.
How integral is the fact that a unit processes 100 widgets versus 500 widgets in making a
variance decision? The Board is also seeking information as to the nature and amount of
emissions, discharges or releases of the “constituent in question currently generated by
the petitioner’s activity.” The phrase “petitioner’s activity” could be interpreted as
referring to the overall activity at a facility. Thus, if the constituent in question is VOM,
this provision implies that the petitioner would have to provide a description of all VOM
emissions at the facility, instead of only those pertinent to the unit in question. This is an
overbroad and irrelevant demand for information.
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These examples are not exhaustive, but the point is that the Board should not stray
from its authority under Section 35 of the Act. The Board has set forth the information
that is absolutely necessary for its determination at subsection (e), which is “[f]acts that
set forth the reasons the petitioner believes that immediate compliance with the
regulation, requirement or order of the Board would impose an arbitrary or unreasonable
hardship.” The other listed items should be included at the petitioner’s discretion, as it is
the petitioner that has the burden of proof. The Board should not demand information of
the petitioner that is not pertinent to its decision on the variance petition.
2.
Section 104.206: RCRA Variance Petition Contents
Subsection (b) of proposed Section 104.206 requires that where a RCRA permit is
involved, a permit application reflecting the requested variance be filed prior to filing the
variance petition. Yet, the Board had also proposed a new provision at proposed Section
104.244, stating that in a RCRA variance the Board may direct the IEPA to issue or
modify a RCRA permit with conditions reflecting the variance order. Accordingly, IERG
questions why the proposed Section 104.206(b) permit application filing requirement is
necessary.
3.
Section 104.216: Agency Investigation and Recommendation
Proposed Section 104.216 guides the IEPA’s response to a variance petition,
including the contents of the IEPA’s recommendation to the Board on the petition.
Subsection (b) states that the IEPA’s recommendation is to be filed within 45 days after
filing the petition or amended petition, or where there has been a hearing scheduled, at
least 30 days before hearing. IERG recommends deletion or revision of the last option,
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i.e., from filing 30 days before hearing, to 60 days before hearing. The IEPA’s
recommendation is required to include numerous items, including some that involve
subjective conclusions. The recommendation could include suggested conditions for the
variance or even a recommended denial of the variance petition. Adequate time should
be allowed for the petitioner to prepare for the hearing, given the contents of the IEPA’s
recommendation.
IERG notes again that the standard for a variance is that compliance with any rule
or regulation, requirement or order of the Board would impose and arbitrary or
unreasonable hardship. The lengthy list of items that must be included in the IEPA’s
recommendation should not stray beyond the matters necessary for making a decision as
to arbitrary or unreasonable hardship. As an example, the Board has added a new item at
subsection (b)(4), namely any past or pending enforcement actions against the petitioner.
IERG believes that this is inappropriate information for consideration. A variance is to
be determined based on the arbitrary or unreasonable hardship that would be imposed if
petitioner had to comply with the requirement at issue. While this could involve a
technical and feasibility analysis for the ability to meet a certain requirement, it has
nothing to do with compliance issues from the past that may be completely unrelated to
the unit or requirement at issue. Second, an enforcement action, in and of itself, should
never be considered substantively, without an adjudication or admission of liability.
IERG refers the Board to its comments as to the contents of the variance petition.
The same concerns are relevant here. IERG contends that the proposed subsection
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(b)(11) is all the IEPA need provide, which is its recommendation to deny or grant the
petition, with beginning and end dates, along with any suggested conditions.
4.
Section 104.220: Response to Agency Recommendation
Proposed Section 104.220, subsection (a), increases the petitioner’s deadline to
respond to the IEPA’s variance recommendation, from seven days to 14 days. The
IEPA’s deadline to file its recommendation is proposed to be enlarged from 30 days to 45
days. Fourteen days is a rather small timeframe in which to respond to the IEPA’s
recommendation, which could contain complex and/or subjective information or
conclusions, recommended conditions, or even a recommended denial. Accordingly,
IERG requests that the Board consider increasing the petitioner’s response deadline to 21
days.
Proposed Section 104.224(d) allows filing of written comments within 14 days
after the close of the hearing, or 30 days before the Board’s decision date, if there is no
hearing. IERG does not take issue with the filing of comments on variance petitions, but
asks that the petitioner be given an opportunity to file response comments, particularly
where incorrect information has been presented. IERG requests that the timeframes for
comment be amended to allow for response comments by the petitioner, to provide a
more complete and accurate record for the Board’s consideration.
5.
Section 104.226: Amended Petition and Amended
Recommendation
Proposed Section 104.226(a) deals with amended variance petitions. Under the
proposed language, an amended petition recommences the decision period. IERG
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requests that this only occur where the petition has been changed substantively. It would
be unnecessary to delay a variance for months because of a minor variation between
petitions. The proposed rules for adjusted standards provide that petitions may be
amended at any time, and that the amended petition does not restart timeframes unless it
contains a substantive change to the requested relief, i.e., additional or alternative relief.
IERG requests that this same concept apply at proposed Section 104.226(a).
6.
Section 104.240: Certificate of Acceptance
This proposed section states that “[t]he petitioner’s filing with the Board, which
must be served on the Agency, will include a certificate of acceptance in all variances.”
It appears that some language has been left out of this provision, as it is unclear to which
“filing” the Board is referring. The prior proposal reflected Board practice, which is that
the Board will include a certificate of acceptance in all variance orders, which the
petitioner must execute and forward to the Agency. IERG requests that such language be
added to this provision to make it clear when the certificate is to be filed.
7.
Section 104.250: Revocation
This proposed section is a new provision allowing the Board to revoke or vacate
any variance or any condition of any variance. IERG does not find such authority in the
Act. Further, IERG objects to “any person” being able to cause the Board to consider
revoking a variance or a variance condition. IERG understands concern as to ensuring
compliance with variances and variance conditions and trusts that the IEPA and the
Board can fulfill such a goal. The proposed Section 104.250, however, goes beyond that
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and creates a great deal of uncertainty as to a facility’s ability to rely on regulatory relief
ostensibly secured in a variance.
8.
Section 104.406: Petition Content Requirements
Section 28.1 of the Act sets forth the statutory framework for adjusted standards.
Section 28.1(c) states that the petitioner has to prove four things for the Board to grant an
adjusted standard. In proposed Section 104.406, the Board sets forth 12 different
categories of items the petitioner must cover in the adjusted standard petition. As with
the comments set forth above regarding contents of variance petitions, IERG urges the
Board to carefully review this provision to ensure that it is not overreaching.
9.
Section 104.416: Agency Recommendation and Petitioner
Response
In subsection (a) of proposed Section 104.416, the IEPA is required to file its
recommendation within 45 days after filing the petition or amended petition, or where
there has been a hearing scheduled, at least 30 days before hearing. IERG recommends
deletion or revision of the last option, i.e., from filing 30 days before hearing, to 60 days
before hearing. The IEPA’s recommendation is required to include numerous items,
including some that involve subjective conclusions or even a recommended denial of the
petition. Adequate time should be allowed for the petitioner to prepare for the hearing,
given the contents of the IEPA’s recommendation.
Subsection (b) of the proposed Section 104.416 describes what the IEPA’s
recommendation must contain, which keys off of the requirements for the petition.
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Accordingly, IERG recommends revision of this section to reflect revisions suggested for
proposed Section 104.406.
Subsection (d) is a new provision that allows a response to the IEPA’s
recommendation within 14 days after date of service. IERG supports this concept, but
believes that 14 days is a rather small timeframe in which to respond to the IEPA’s
recommendation, which could contain complex and/or subjective information or
conclusions, or even a recommended denial. Accordingly, IERG requests that the Board
consider increasing the petitioner’s response deadline to 21 days.
E.
PROPOSED PART 105: APPEALS OF FINAL DECISIONS OF STATE
AGENCIES
1.
Section 105.114: Calculation of Decision Deadline
Proposed Section 105.114(b) provides that the Board’s decision period
recommences when an amended petition is filed. As with IERG’s comment regarding
amended variance petitions, the decision period should not recommence if the petition is
amended with minor, nonsubstantive changes. IERG requests that the Board revise this
provision accordingly.
2.
Section 105.116: Record Filing
Proposed Section 105.116 provides that the agency must file the entire record of
its decision no later than 30 days before the date of any scheduled hearing. The Board’s
existing rules provide that the record must be filed within 14 days of the appeal petition.
The Board’s proposed change in this deadline will not allow enough time to review the
record and take any necessary action upon that record, including discovery, depositions,
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etc., before the hearing. This is particularly true given the newly imposed discovery
deadlines prior to hearing, e.g., proposed Section 101.616. Accordingly, IERG proposes
that the deadline for filing the agency record be amended to 21 days after the appeal
petition is filed.
3.
NPDES Appeals
IERG notes that the Board has not included a pertinent provision of its existing
rules regarding NPDES permit appeals. Specifically, the current Section 105.102(b)(8)
provides that “[i]f any party desires to introduce evidence before the Board with respect
to any disputed issue of fact, the Board shall conduct a de novo hearing and receive
evidence with respect to such issue of fact.” The Board has not indicated why this
provision was deleted. This is a crucial element of NPDES appeals and IERG therefore
requests that it be added to proposed Part 105.
4.
Section 105.502: General Overview
Subpart E of proposed Part 105 deals with appeals of decisions of the Office of
the State Fire Marshal (“OSFM”). Under proposed Section 105.502, hearings will be
publicly noticed in the county where the underground storage tank (“UST”) is located.
Yet, this same proposed provision states that most hearings will be held in either Chicago
or Springfield. Such a limited selection of hearing locations is unreasonable and unfair,
particularly for UST owners or operators with USTs located distant from Chicago or
Springfield. IERG urges the Board to revise this provision to hold hearings in the county
in which the UST at issue is located.
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5.
Section 105.506: Petition Content Requirements
Subsection (f) of the proposed Section 105.506 concerns requests to hold a
hearing in a location other than Chicago or Springfield. IERG suggests that this
subsection be deleted on the basis of the comment regarding Section 105.502.
6.
Section 105.508: OSFM Record and Appearance
Subsection (b) of the proposed Section 105.508 states that the entire record of the
OSFM’s decision must be filed with the Board as directed by the Board or hearing
officer. However, there is no timeframe imposed for filing the record. IERG suggests
that a deadline be set by the Board, which can be consistent with that suggested by IERG
for other permit appeals, i.e., 21 days after the petition is filed.
7.
Section 105.600: Applicability
Subpart F of proposed Part 105 purports to involve appeals of final decisions of
state “agencies” that are not otherwise addressed in Part 105. This terminology appears
to refer to more than one state agency, yet “agency” is defined in proposed Part 101 as
only meaning the IEPA. Accordingly, IERG believes that the scope of proposed Part
105, Subpart F, is unclear. IERG requests that the Board revise proposed Section
105.600 to address this concern, or revise the definition of “agency” in proposed Part
101.
8.
Section 105.608: Time to File the Petition; Service
Subsection (a) of proposed Section 105.608 deals with when a person may appeal
an agency decision under proposed Subpart F. Subsection (a)(1) specifies a 35-day
appeal period for a person who applied for or requested a final decision. Subsection
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(a)(2) provides the same timeframe if the petitioner is a “third party.” IERG questions
the circumstances under which a third party could appeal a final decision of a State
agency, other than those enumerated in proposed Sections 105.204 and 105.302. IERG is
not aware of any statutory provision, which would provide other such opportunities for
review. IERG therefore recommends deletion of subsection (a)(2) of proposed Section
105.608.
9.
Section 105.612: State Agency Record
This proposed section states that where the law authorizing the appeal at issue
does not prescribe a deadline for filing the agency record, proposed Section 105.116 will
apply. That section, as proposed, provides for filing the record 30 days before any
hearing. For the reasons expressed in its comment to proposed Section 105.612, IERG
respectfully requests that the default deadline in proposed Section 105.612, for filing the
agency record, be revised to 21 days after the appeal petition is filed.
F.
PROPOSED PART 125: TAX CERTIFICATIONS
Proposed Part 125 concerns tax certification of pollution control facilities and low
sulfur dioxide emission coal fueled devices. The Board determines such tax certifications
under the authority granted at Article 11 of the Property Tax Code. IERG supports the
Board’s approach for tax certifications, as expressed in proposed Part 125. IERG notes
one apparent discrepancy, however, between Section 11-30 of the Property Tax Code and
the proposed Part 125. Section 11-30 of the Property Tax Code states that before denying
tax certification, the Board must give reasonable notice to the applicant, in writing, and
provide a reasonable opportunity for a fair hearing. The Board has arguably satisfied the
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requirement for providing an opportunity for a hearing at proposed Section 125.210.
That provision states that a hearing will be held when requested by the petitioner or the
IEPA, or where the Board determines that a hearing would be advisable.
In order to meet the requirements of Section 11-30, the Board should consider
adding a Section 125.209, that would provide for written notice of the Board’s
preliminary decision to deny tax certification, which notice would be served upon the
petitioner and the IEPA within a certain timeframe after the IEPA files its
recommendation and the petitioner files its response. Then, if the petitioner does not
receive a notice of preliminary decision to deny certification in the specified timeframe,
the petitioner can choose not to request a hearing. If the petitioner receives the notice of
a preliminary decision to deny, it would obviously then be put on notice that a hearing
should be requested. This revision should align the procedures in proposed Part 125 with
the requirements of Section 11-30 of the Property Tax Code.
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III.
CONCLUSION
IERG appreciates the opportunity to participate in this proceeding. IERG
respectfully requests that the Board consider the comments set forth herein.
Respectfully submitted,
By:
(Signature on Original)
N. LaDonna Driver
Dated: May 30, 2000
Katherine D. Hodge
N. LaDonna Driver
HODGE & DWYER
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
Karen Bernoteit
Illinois Environmental Regulatory Group
1524 West Cook Street
Springfield, Illinois 62704
(217) 522-5512
IERG:001/Misc/Part 101-125 Comments
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