RECEIVED
    CLERIcS OFFICE
    JUN
    052000
    ILLINOIS POLLUTION CONTROL BOARD
    STATE OF IWNOIS
    IN
    THE
    MATTER OF:
    )
    ~O
    ~
    ~
    /0
    Pollution
    Control
    Board
    REVISION OF
    THE
    BOARD’S
    )
    R00-20
    PROCEDURAL RULES:
    35 ILL. ADM.
    )
    (Rulemaking
    -
    Procedural)
    CODE 101
    -
    130
    )
    PUBLIC COMMENT OF
    THE
    ILLINOIS
    STATE
    BAR
    ASSOCIATION’S
    ENVIRONMENTAL
    LAW SECTION COUNCIL
    The Environmental Law Section Council (Section) appreciates the opportunity to
    comment on theproposed Procedural Rules affecting matters pending before the Illinois
    Pollution Control Board.
    The Council is made up ofa number ofattorneys who regularly
    practice in the area ofEnviromnental Law and who regularly appear before this Board.
    The
    following comments should not be construed to representthe positionofthe Illinois State Bar
    Association.
    Section
    101 .400(aX3) provides that “~attorneys
    who are licensed to practice in a state
    otherthan Illinois and who are not licensed and registered to practice in the State of Illinois may
    request to appear pro hac vice on a particular matter on a motion filed with the Board.”
    The
    Section believes that such a provision is unwarranted and contrary to law.
    Pursuant to Illinois law, only the Supreme Court can control the practice oflaw in this
    state.
    See 735 ILCS5/1-104.
    The Illinois Pollution Control Board has consistently stated that
    adjudicatory proceedings constitutethe practice of law.
    The Supreme Court Rules provide that only attorneys licensed to practice in Illinois can
    appearas attorneys in Illinois.
    See generally,
    S.
    Ci. Rule
    707.
    There the Rule provides that a
    circuit court may, in its discretion, allowattorneys licensed elsewhere to appear in Illinois courts.
    However,
    there is no similar Supreme Court Rule which extends this authority to administrative
    agencies.
    Section
    101.400(d) provides that “~any
    person may appear on behalfofhimself
    or
    others
    in a rulemaking proceeding.
    .
    .“
    While the Section agrees that an individual hasa right to
    representthemselves in any proceeding, it believes that a blanket allowance ofnon-attorneys to
    appear in a representative capacity in rulemaking proceedings seems inappropriate.
    The Section
    believes that a strong distinction doesnot necessarily exist between regulatory and adjudicatory
    proceedings.
    In any event it is possible to imagine rulemaking proceedings in which an
    individual’s rights and interests arebeing impacted, in which legal counsel would be necessary,
    particularly with respect to site specific proceedings.
    As stated above, the Section agrees with the prohibition against non-lawyers representing
    parties in adjudicatory proceedings, but disputes the assertion in the proposed regulations that all
    regulatory proceedings can be done with non-lawyers.
    At a minimum, such determinations
    should be handled on a case-by-case basis.
    Section
    103.204 (e) provides that “~except as provided in subsection (f) ofthis Section,
    the respondent
    must
    file an answer within 60 days afterreceipt ofthe complaint if respondent
    wants to deny any allegations in the complaint.”
    Past Board practice has indicated no answer
    need be filed.
    The statute says the respondent
    may
    file an answer.
    The proposed Rule mandates
    the filing ofan answer.
    The Section opposes this mandate for a number ofreasons.
    First, the proposed Rule clearly conflicts with the permissive statutory language. It is well
    settled that when a statute is unambiguous, it must be enforced as enacted, and a court may not
    departfrom its plain language by reading into it exceptions, limitations, or conditions not
    2
    expressed by the legislature.
    People
    v.
    Woodard, 175
    lll.2d 435,
    443 (1997).
    Presumably this
    law is equally applicable to the Board.
    Second, the proposed Rule would make unnecessary changes to
    past practice.
    Finally,
    such a change will likely increase costs.
    Because the experience of the Section
    is that most cases
    before the Board settle prior to a decisionby
    theBoard, such a mandate may unnecessarily
    increase the costs without any benefit to those before the Board.
    The
    Section is concerned that
    there is a reasonable probability that litigation will result over whether an answer will need to be
    filed.
    Section
    101.904(b) and Subpart G ofPart
    102 both deal with appeals offinal orders of
    the Board.
    Absent is a clear indication that it is not necessary that a motion for reconsideration
    ofa final Board Order be filed in order to exhaust administrative remedies prior to appeal as
    required by the Administrative Procedures Act.
    In
    Strube
    v. illinois EnvironmentalProtectionAgency,
    610 N.E.2d 717
    (3rd Dist.
    1993),
    the Illinois Attorney General’s office sought dismissal ofan appeal
    taken from a fmal Board
    Order on the basis a motion for reconsideration ofthe Board’s final order had not been filed prior
    to theappeal.
    Although the Third District rejected the argument a motion for reconsideration
    was ajurisdictional prerequisite to appeal of a final Board Order, there was considerable expense
    to thepetitioner to address this issue.
    Clarification that a motion for reconsideration is not
    necessary would avoid any potential future ambiguity and unnecessary expense regarding this
    issue.
    Subpart C of Part 104
    ofthe proposed rules deals with Provisional Variances.
    Nowhere
    does the Subpart address appeal rights.
    Therefore, these provision should be amended to clarify
    that the Board also has authority to review the Agency’s denial of a request for provisional
    3
    variance.
    The rules suggest the Board will not hear appeal ofa provisional variance denial and
    will
    issue a provisional variance only upon IEPA recommendation.
    Currently, IEPA’s denial ofa provisional variance can be appealed to the Appellate Court
    (See
    WR.
    Meadows v. illinois Environmental Protection Agency,
    (Case No.4-96-0736, 4th
    Dist.
    Court
    ofAppeals).
    It is not clear whether such a denial
    can be brought to the Board.
    For the
    same reasons the Board is the most appropriate body to hear permit and variance appeals, it
    should also
    be the reviewing body for provisional varianceappeals.
    There is no reason for these
    appeals to be brought to the Appellate Court ratherthan the Board.
    Finally,
    §
    104.304 provides
    that “~if the Agency fails to
    take a final action within 30 days
    after receipt ofthe request, the person may initiate a variance proceeding pursuant to Section
    104.120 ofthis Part.”
    There is
    no
    §104.120 in the proposed rules.
    Therefore, it appears
    as
    though the cited language contains a misprint.
    The Section requests that the Pollution Control Board considerthe above comments as it
    proceedswith this rulemaking.
    Again, it appreciates to opportunity to presentthese comments.
    Respectfully submitted,
    Environmental Law Section Council
    Legislative Sub-Committee
    Illinois State Bar Association
    By:
    Euge
    P. Schmittgens, J~
    Chair, Legislative Sub-Committee
    2000 Equitable Building
    10 South Broadway
    St. Louis, Missouri
    63102
    314/241-9090
    Dated: May 31, 2000
    4

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