STATE OF ILLINOIS
COMMENTS OF THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
Comments to Part 102
Comments to Part 103
Comments to Part 104
Comments to Part 105
Comments to Part 106

RECEIVED

CLERK’S OFFICE

JUN

2000

STATE

OF ILLINOIS

BEFORE

THE

ILLINOIS POLLUTION CONTROL BOARD

Pollution Control

Board

THE MATTER

OF:

REVISION OF

THE

BOARD’S

PROCEDURAL RULES:

ILL. ADM

CODE 101-130

)

R0O-20

)

(RULEMAKING-PROCEDURAL)

)

COMMENTS

OF THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

The Illinois Environmental Protection Agency hereby presents its comments to the

Illinois Pollution Control Board (“Board) proposed procedural rules.

Comments to

Part

101

Section

101.202

Definition of “Service List”

In its March 16, 2000 Opinion, the Board states that under its

proposal “hearing officers have the discretion to relieve persons of

service requirements in a given rulemaking as may be

appropriate.”

The Agency is concerned that there are no standards

by which the Hearing Officermust determine “appropriateness.”

TheAgency suggests that the Board require the Hearing Officer

follow the “waiver ofrequirements” standard in proposed Section

102.110 in granting an adjustment to service requirements.

order to avoid the prejudice that may occur if participants are not

requiredto

serve the proponent ofthe regulations,

all participants

should follow the same filing requirements unless a particular

participant can demonstrate that serving everyone on the listwould

create an undue burden.

Proposed Change

Include in the procedural rules a requirement that in order for the

Hearing Officer to grant an adjustment to the service requirements,

the participant must demonstrate that serving everyone on the

service list would create an undue burden such as imposing

financial costs (for copying and postage, etc.) that would limit

furtherparticipation, or where the proponent or otherparticipants

already have the materials in question.

Comment:

Section:

l0l.300(d’)(2)

Date ofBoard Decision

Comment:

Section

1O1.300(d)(2)

provides that for purposes of appeal of a final

order, the date ofthe Board decision is the date ofservice ofthe

final opinion and order by the Board upon the appealing party.

This is consistent with the terms ofthe Administrative Review

Law (ARL), and affords the appealing party the entire

35 day

period to review the decision and prepare for appeal.

However,

subsection (d)(2) furtherprovides that for purposes of appeal ofthe

decision on a motion forreconsideration, the date ofthe Board

order ruling upon the motion is the date ofservice by the Board

upon the appealing party. In other words, the 35-day appeal period

for motions for reconsideration begins to run on the date of the

Board meeting, regardless ofwhen the appealing party actually

receives a copy ofthe written opinion and order.

In cases where

the written opinion and order is prepared and mailed on the

decision date or the day after, only a few days ofthe 35 day appeal

period are lost; however in some cases, the time elapsed between

the date ofthe decision and the date when the party actually

receives the opinion and order and learns the terms ofthe Board’s

decision may be several days.

This

elapsing oftime may be

significant when a party

wishes to review the opinion to determine

whether an appeal is well founded.

Any elapse oftime that

diminishes the effectiveness ofthe 35

dày appeal period is even

more significant in the case ofthe Agency, where the Board’s

decision not only has to be reviewed and a course ofaction

approved by Agency management, but the approval and

representation ofthe Attorney General must be requested and

obtained before a notice of appeal can be filed.

For the sake ofconsistency with the ARL, and in order to allow the

party the full benefit ofthe 35 day appeal period, the Board should

eliminate this redefinition of“service” for this special

circumstance, and make in all cases the date of the Board’s

decision for purposes of appeal the date on which the opinion and

order was received by the party.

Section:

101 .302(d~Filing of Documents

Comment:

In proposed Section 101.302(d), the Board states that itwill allow

filing by electronic transmission or facsimile only with the prior

approval ofthe Clerk or hearing officer assigned to the proceeding.

Section

180.303 ofthe Agency rules

concerning provisional

variance recommendations requires that the Agency submit a

recommendation to the Board by personal service or certified mail

(35 Ill.

Adm. Code 180.303).

Section 35(b) ofthe Illinois

Environmental Protection Act requires the Board to

issue

provisional variances within two working days after notification

from the Agency. The Board proposed regulations

address

provisional variances in

Sections 104.300 through

104.3 10.

Often, the Illinois EPA receives requests for provisional variances

on a last minute basis.

In light ofthe statutory time constraint and

the Board’s meeting schedule, the Agency

generally sends the

Board a draftprovisional variance recommendation by facsimile,

and follows with a hard copy for filing.

The Agency must send the

hard copy by Federal Express or other overnight delivery services,

shortly before a regularly scheduled Board meeting in order for the

Board to

actat its regular meeting and within two days of the

notification.

The Agency requests a general permission to file provisional

variance recommendations with the Board through electronic

transmission or facsimile withintwo days of a regularly scheduled

meeting date. The electronic filing would obviate the need to send

a draft recommendationand eliminate concernsthat the Board will

not receive the Federal Express delivery in time.

The language of

the Agency’s provisional variance rules does not preclude an

electronic filing.

The Agency could follow the electronic

filing

with a hard copy submission.

Proposed Change:

Include a provision in Section

101.302 as follows: “The Agency

may file provisional variance recommendations with the Board

through electronic transmission or facsimile within two days ofa

regularly scheduled meeting date.”

Section:

101.302(i)

Page Limitation.

Comment:

Section

101.302(j) limits all motions and briefs to

a maximum of

30 pages.

While in most cases the issues before the Board may be

properly addressed by the parties within 30 pages oftext,

sometimes it will be necessary to exceed that number to give

adequate explanation or coverage to all

ofthe pending issues

and

to properly articulate the parties’ arguments.

Accordingly, the

proposed rule contemplates that the Board

or hearing officermay

grant prior approval to exceed this 30 page limitation. In many

instances the party maynot realize the need to

exceed 30 pages

a briefor motion until sometime into the drafting process.

With

the formalities associated with filing and serving

a written motion

and the requisite response time, it is possible that a request for

relief from the page limitationwill be pending but unresolved on

the date the briefor motion in question is due.

Accordingly, the

rule should include an expedited process for obtaining relieffrom

the page limitation on oral motion to

the hearing officer.

Proposed Change:

The following language should be added to

subsection

a):

“Relief

from the p~ge

limitation may be sought b~

oral motion to the

hearing officer so long as all parties have reasonable notice and an

opportunity to be heard.

In determining whether to

grant the relief

the hearing officer shall consider the number, complexity and

novelty of the factual and legal issues involved

in the proceeding.”

Section:

101.304(c)

Method ofService.

Comment:

The Board references facsimile as an approved method ofservice

in non-enforcement adjudicatory cases,

“as prescribed in Section

101.302(d).”

However, Section 101.302(d) refers to filing by

facsimile, upon prior approval ofthe Clerk or the hearing officer.

The Agency assumes that the Board intends facsimile service to

also be limited to occasions ofprior approval by the Clerk or the

hearing officer.

Because “filing” and “service” are two different

things, the reference should be clarified.

Proposed Change:

“...

or by facsimile with the prior approval ofthe Clerkofthe

Board or hearing officer assigned to the proceeding, except for

service ofenforcement

Section

101 .304(g)(1)

Service ofDocuments/Service on State Agencies

Comment:

The address given for the Agency does not include the street

address.

It would be useful for the Board to include the street

address, particularly since mail for the Agency is still being sent to

the Churchill Road address (now another State agency), resulting

in delays in receipt at the Agency’s office.

Proposed Change:

Addthe Agency’s Street address, “1021 North Grand Avenue,

East.”

Section

101 .306(a)

Incorporation of Documents by Reference

Comment:

A person seeking incorporation ofdocuments must file nine copies

ofthematerial to be incorporated.

It may be that incorporation by

reference is being requested because ofthe voluminous size ofthe

document (e.g., an administrative record in a related permit

appeal).

Ifso, the requirement that the full nine copies ofthat

material be filed along with the request for incorporation will

defeat the purpose ofthe incorporation by reference.

Proposed Change:

An exemption should be created allowing for incorporation of

voluminous documents from another Board docket without the

need offiling

all nine copies ofthose documents, upon approval by

the Board.

Section:

101.308(b)

Statutory Decision Deadlines and Waiver ofDeadlines

Comment:

This subsectionprovides thatthe Board will establish all hearing

and filing requirements where the Petitioner does not waive the

decision deadline.

It includes the statement that, “Failure to follow

Board requirements on such deadlines will

subject the party to

sanctions pursuant to Subpart H ofthis Part.”

It does not appear

that any discretion is afforded the hearing officer or the Board to

withhold sanctions when the failure to follow the schedule is

outside the control ofthe party, is caused by the other party, or is

otherwise excusable.

Proposed Change:

“...

Willful or unexcused failure to follow Board requirements on

such deadlines will subject the party to sanctions pursuantto

Subpart H ofthis Part.”

Section

101 .308(c)(2)

Negotiation Waiver

Comment:

This type ofwaiverseems

unnecessary and would allow for

undefined decision deadlines.

Either the open waiver or time

certain waiver can be used to meef situations encountered by the

parties.

Also, this type ofwaiver seems contrary to the Board’s

policy ofencouraging timely resolution ofpending matters.

Proposed Change:

This provision should be deleted.

Section:

10l.400(a)(1), (2) and (3)

Attorneys in Adjudicatory Proceedings

Comment:

Although reference to Section

ofthe Illinois Attorney Act makes

it implicit, this subsection should be amended to expressly

state

that only Illinois licensed attorneys may engage in the practice of

law in Illinois.

The case law is clear that non-Illinois licensed

attorneys cannot lawfully practice law in Illinois unless admitted

pro hac vice

by a court of competentjurisdiction.

Although the

Board has made a practice ofgranting such motions filed by out-

of-state attorneys, and indeed proposes to carry on that practice by

rule, its authority to do so is open to question, in that the Board has

no inherent common law powers

and there is no express statutory

authority granting it the right to determine who is or who is not

entitled to practice law before it.

Proposed Change:

The language of Subsections

101 .400(a)(1) and (2) should be

modified to state:

“..

or through an attorney-at-law licensed and

registered to practice law in the

State of Illinois.”

Subsection

101.400(a)(3) should be deleted in its entirety.

Section:

101.403

Joinder ofParties

Comment:

Proposed Change:

Subsection 101.403(a) allows joinder if a complete determination

ofthe controversy cannot be had without the presence ofthe

personwho is not already a party to the proceeding or if it may be

necessary for the Board to impose a condition on the person sought

to be joined.

In certain rare instances, it may come to light that a

person who is not a named party may be the real party in interest in

the proceeding

(e.g., a LUST reimbursement claim where the

environmental consultant has taken an assignment ofclaim from

the owner/operator

full payment and is actually in charge ofthe

litigation), but does not clearly fall within the proposed rule’s two

stated grounds forjoinder.

In such an instance the real party in

interest should be made a party and be subject to the same

discovery and appearance requirements as otherparties.

Subsection (a) should be revised to add the following provision:

“...;or

3’)

suchperson is a real party in interest in the proceeding.”

Section:

101.500- Film

~ofMotions and Resnonses

Subsection 10 1.500(b) provides that all motions should be

writing except those made orally on the record during a hearing.

Provision should be made for certain non-dispositive motions

(particularly agreed or uncontested motions, and those motions

relating to matters ofscheduling that require expedited resolution)

to be made orally to the hearing officerso long as all parties have

the opportunity to be heard.

Otherwise, the formalities ofa written

motion, formal filing, service and passage ofthe requisite response

time might prove to unduly expendthe resources ofthe parties and

the Board, and may render moot the relief sought.

Proposed Change:

Language to the following effect

should be added to subsection

(b):

“In the discretion ofthe hearing officer~

certain non-dispositive

motions directed to the hearing officer, such as those pertaining to

Comment:

matters ofscheduling, and non-dis2ositive uncontested or agreed

motions directed to the hearing officer maybe presented orally, on

reasonable notice,

so long as all parties are afforded an opportunity

to be heard.

The hearing officer will prepare a written order

stating the substance ofthe oral motion and the stated positions of

the parties.

Objection to the hearing officer’s ruling on any such

oral motion will be deemed waived unless preserved

in accordance

with the procedures set forth in Section

101.502(b).”

Section 101.502(b)

Motions Directed to the Hearing Officer

Comment:

Proposed Section 101.502(b) provides that objections to motions

or rulings made during hearing must be filed within 7 days after

the Board receives the hearing transcript.

The objector, however,

may not know when the transcript is received by the Board, and

may well receive the transcript sometime after the Board does. The

Agency requests that the time period for filing be predicated on the

receipt ofthe hearing transcript by the objector, and further

requests that the Board allow the objection to be filed 14 days after

receipt ofthe transcript (which is the period oftime allowed for

correction ofthe transcript in Section 101.604).

Proposed Change

Change subsection 101.502(b) as follows:

“.

.shall be deemed

waived if not filed within 14 days after the party making the

objectionreceives the hearing transcript.

Section:

101.504

Contents ofMotions and Responses

Comment:

Both the existing and the proposed rule provide that: “Facts

asserted that are not ofrecord in the proceeding must be supported

by oath or affidavit.”

Section 1-109 ofthe Code ofCivil Procedure

(735 ILCS

5/1—1 09) provides, in part, that:

“Unless otherwise expressly provided by rule ofthe Supreme Court,

whenever

in this

Code

any

complaint, petition, answer, reply,

bill

ofparticulars, answerto

interrogatories, affidavit,

returnor

proofofservice, orother document or

pleading filed inany

court

of this State is required or permitted tobe verified, or

made, sworn to or verified under oath, suchrequirement or

permission is hereby

defmed to include a certification of pleading, affidavit or other document under

penalty of

perjury as

provided in

this

Section.

Whenever any

such

pleading, affidavit or

other

document

certified, the

several matters stated shallbe stated positively or upon information and belief

only,

according to the

fact.

The person or persons having knowledge of the

matters stated in a pleading, affidavit or other document certified in accordance

with this Section shall subscribe to a certification in substantially the following

form:

Under penalties as provided by

law pursuant to

Section

1-109 of the

Code of Civil

Procedure, the undersigned certifies that the statements

set forth

in this instrument are true and correct, except as to matters

therein stated to be on

information

and

belief

and

as to such matters the

undersignedcertifies

as aforesaid that he verily believes the same to be

true.

Any pleading, affidavit

other document certified in accordance with this

Section may be used

in the

same

manner

and

with

the same force

and

effect as

though

subscribed and sworn

to under oath.

...“

Use of a certification in lieu ofan affidavit benefitsthe parties,

since it is not always possible or convenient to obtain the services

of a notary public or other officer to administer the oath.

Furthermore, such a certification has, by statute, the same effect as

a sworn statement.

The Board’s rule should expressly add

authorization to certify in

lieu ofan affidavit.

Proposed Change:

This

Section

should be amended to read:

“Facts

asserted that

are

not of record in the proceeding must be supported by oath,

affidavit or certification in accordance with Section

1-109 ofthe

Code ofCivil Procedure (735 ILCS

5/1—1

09).”

Section 101.5 16

Motions for Summary Judgment

As drafted, Section

101.516 allows for the possibility that a motion

for summary judgment will not be decided as ofthe date ofthe

hearing on the underlying matter.

The Board acknowledges this

possibility in its proposal, but states that given the various time

constraints involved,

it may not be possible to rule on a motion for

summary

judgment before a hearing starts.

While understandable,

this still creates a possibility of a waste ofresources (on the

part

the parties as well as the Board) if a motion for

summary

judgment, timely filed, could have resolved the issues but was not

decided prior to a hearing.

Proposed Change:

The Board should amend Section

101.5 16(a) to allow for more

time for consideration of a motion for

summary

judgment.

This

most easily done by requiring that such motions be filed more in

advance ofthe hearing thanthe 30

days nowproposed.

If this

were done, the parties could seek to resolve matters through

summary

judgment without having to potentially participate in a

hearing as well.

It would also allow the Board to delete

Section

101.516(c), sincethere would

be no need to cancel a hearing.

Section:

101.610

Duties and Authority ofthe Hearing Officer

Comment:

This list ofhearing officer powers and responsibilities is

similar

current Section

103.200, applicable to permit appeals by reason of

the incorporation ofSection 105.102.

However, the provision in

current Section

103.203(f) that contains the authority to rule on

Comment:

offers of proof has been omitted from proposed Section

101.610.

The Board’s intention should be clarified as to whether the

omission is inadvertent or whether the Board intends that making

an offer ofproofis now a matter of absolute right and that there is

therefore no necessity for a hearing officer to rule on a request?

This

could have important impact on trial practice before the

Board.

Section:

101.616(a)

Discovery

Comment:

Section 101.616(a) states that “All relevant information and

information calculated to lead to relevant information is

discoverable, excluding

trade

secrets.”

It does not exclude from

discovery privileged

information, such as

attorney-client

confidential communications and attorney work-product.

Supreme

Court Rule 201(2) expressly excludes from discovery in civil cases

all matters that are privilegedfrom disclosure at trial.

Allowing

discovery ofprivileged matter would undercut the very reasons for

the privilege and

render

it meaningless.

The Board should also

exclude from the definition ofdiscoverable information in

Section

101.616 all matters that are privileged.

Proposed Change:

The proposed

rule

should be changed to read:

“All relevant

information and information calculated to lead to relevant

information is discoverable, excluding matters that would be

privileged from disclosure in the courts ofthis State

pursuant

statute. Supreme Court Rules or common law, and those materials

that would be protected from disclosure under 35

Ill.Adm.Code

130.”

Section:

101.616(f)

Discovery

Comment:

Section 101.616(f) subjects a

party

who fails to comply with any

order, including hearing officer orders respecting discovery, to

sanctions.

In the Circuit Court, Supreme Court Rule 219(c)

governs non-compliance with civil discovery orders, and provides

that the court “may” impose the sanctions there listed. Section

101.616(f), however,

appears not to

afford the Board

any

discretion to consider the circumstances of noncompliance and

may thus result in arbitrary and

unfair

impositionof sanctions.

Proposed Change:

Section 101.616(f) should be amended to read:

“Failure to comply

with any order regarding discovery may subject the offending

person to sanctions

...“

Section:

101.618(b)

Admissions

Requests for admission are a powerful tool for hearing preparation

and advancing

a case toward disposition.

party can

be directly

asked specific questions that must be answered accurately and in a

timely fashion.

An inaccurate answer later proven to be false can

carry

grave consequences.

Likewise, a failure or refusal to respond

within the prescribed timeperiod results in ajudicial admission of

the factby default.

Explanations or contradictions at a subsequent

hearing

are

prohibited.

Section

101.618(b) appears to

allowthe

Hearing Officer to extend a party’s time to answer a request to

admit facts even after thetime has expired.

This undermines the

judicialadmission ofa failure to deny and defeats one ofthe main

purposes of

admissions.

Proposed Change:

Section:

101.620

Reference to extending the

time

for answering a requestto admit

after the expiration oftime should be deleted.

Interronatories

There is no provision in Section 101.620 that addressesthe number

ofinterrogatories that may be propounded.

Illinois

Supreme Court

Rule 213(c) limits the number of interrogatories to 30, with the

possibility ofexceeding that number upon a showing ofgood

cause.

The Board should follow

this

authority.

Proposed Change:

A new subsection (d) should be added to

Section

101.620 that

references Supreme Court Rule 213(c) or otherwise limits the

number ofinterrogatories that may be served to

30 (with the

possibility of serving more upon a showing of good cause).

Section:

101.622(e)

Subpoenas—Outof State Witnesses

Comment:

Although the current rules also mention costs for out ofState

witnesses, thebasis ofthe Board’s authority to compel the

attendance of an out ofState witness

by subpoena is not clear.

Section

101.626(a)

Information Produced at

Hearin~fHearsav

Comment:

Although Section

101.626(a) is similar to language in Section

10-40 ofthe Illinois Administrative Procedure Act (“IAPA”)

ILCS

100/10-40), the language in the IAPA does not specifically

refer to “hearsay.”

Proposed Change:

To be consistent with Section

10-40 ofthe IAPA, as is the stated

purpose in Section 101.626, references to the term “hearsay”

should be deleted from Section

101.626(a).

Comment:

Section:

101.626(b)

Admissibility ofEvidence

Comment:

This provision, which is in the current rule, purports to mandate

the admissibility ofproffered evidence if it “depends upon an

arguable interpretation ofsubstantive

law.”

It is unclear what

“arguable” means in this context.

For comparison, Supreme Court

Rule

137 requires a lawyerto

certify that any pleading filed is well

grounded in fact and warrantedby existing law or a good-faith

argument for the extension, modification or reversal ofexisting

law, and that is not interposed for any improperpurpose...”

Ifthe

concept that the Board has in mind is evidence “offered in a good

faith argument”, the Agency believes that it is too subjective a

criterion for a rule ofevidence.

Proposed Change:

Given the rules ofevidence and the procedural device ofthe offer

ofproof, subsection 101.626(b)

should be dropped.

Section:

101.626(d)

Written Testimony.

Comment:

Current Section

103.205 allows writtentestimony but only if

provided to

all

otherparties prior to the date ofhearing and the

parties

are

given an opportunity to object to portions thereof, and if

the witness

is available for cross-examination at the hearing.

effect, ittreats written testimony as analogous to

an evidence

deposition.

Proposed Section 101.626(d) eliminates the

requirement that written testimony be produced prior to hearing.

The Agency believes that the prior production requirementshould

reinstated.

Otherwise, the other parties will be put in the

position that they may not have the

time

during trial to readthe

testimony closely enough to ascertain whether some or all of it is

objectionable, and therefore not be able to properly prepare for

cross examination ofthe witness.

Proposed Change:

The language ofcurrent Section

103.205 should be retained.

Section

101.700

Oral Argument

Comment:

It is unclear from the provisions ofthis Section

101.700 just how

much

time a party

would be given to present its argument.

Proposed Change:

A provision could be added Section 101.700(d) addressing the time

allowed for argument and sequence of arguments.

Section:

10 1.800(a)

Sanctions for Failure to Comply with Procedural Rules, Board

Orders, or Hearing Officer Orders

Comment:

Although proposed Section 101.800(a) allows the Board some

discretion in imposing sanctions (i.e., “may order sanctions”),

some degree ofculpability, such as willfulness should accompany

the noncompliance in order for sanctions to be available in the first

instance.

Forexample, Supreme Court Rule 219(c) requires

“unreasonable” noncompliance with the rules before sanctions may

be imposed.

Proposed

Change:

Section

101.800(a) should be amended to read:

“If any person

unreasonably fails to

comply with any provision...”

Section:

101.802

Sanctions for Abuse ofDiscovery Procedures

Comment:

The lastsentence ofSection

101.802 states that the Board or

Hearing Officermay enterany order provided for in that Part.

This

statement, seems to imply that a Hearing Officer may enteran

order on his or her ownmotion that imposes sanctions for abuse of

discovery procedures.

This

would contradict Section 101.800(a),

which provides that only the Board has sanction authority and that

the Hearing Officermust make a motion to the Board for

sanctions.

Proposed Change:

Amend Section

101.802 to clarify that a Hearing Officer may not

enter an order imposing sanctions.

Section

Former Section 103.206—Official Notice

Comment:

Former Section 103.206, “Official Notice,” is not included in Part

101 ofthe proposed rules.

In the current rules, Section

105.1 02(a)(6) incorporates the enforcement procedures of Part 103

for non-NPDES permit appeals.

That incorporation is not included

in the proposed rules.

Accordingly, official notice is no longer in

the rules for LUST and permit appeals.

It is an essential tool for

Board hearing practice.

Comments to Part 102

Section

102.3 04(f)

Hearings (CAA Fast Track)

Comment:

Proposed Section 102.304(f) provides that hearing dates may be

chosen by the assigned Board member and Hearing Officer

without consultation with the participants.

While this section

applies to Clean AirAct Amendments Fast Track Rulemaking

only, the Agency is concerned that this concept will be applied to

other types ofrulemakings. Because of the intense level of

technical participation necessary for regulatory development, it is

essential that the Agency be consulted when a Board member or

Hearing Officer sets a hearing date for a non-CAA Fast Track

proceeding.

In order to avoid problems that can be created if an

essential Agency technical staff member cannot attend a hearing

a particular day, theAgency requests that the Board continue to

confirm with the Agency that the necessary witnesses will be

available on the dates the Board desires to conduct non-CAA Fast

Track hearings.

Section

102.3 06(c)

Prefiled Testimony

Comment:

Section 102.306(c) provides for a waiver ofthe pre-filing deadline

or service requirement“for good cause.” The Agency would like to

see incorporated into this

provision some burden of

proof

requirements that the individual seeking a waiver must meet.

It is

the Agency’s opinion that this provision is

currently abused and

that testimony is allowed even when “good cause” for violating the

pre-filing requirements has not been established.

stated by the

Board in its March

16, 2000 First Notice opinion, the purpose of

the pre-filing requirement is to “prevent events, such as surprise,

that could

interfere

with the timely adoption ofthe regulation”

However, surprise is what inevitably occurs when individuals

testify at hearing without

having

followed the pre-fihing

requirements., and is detrimental to theproponent who does not

then have adequate time to prepare cross examination questions or

refute the testimony being given.

Section:

102.424(g)

Prehearing Submission ofTestimony and Exhibits

Comment:

Section 102.424(g) provides that testimony that

is not timely pre-

submitted will be allowed only as time permits.

This

“sanction” of

only allowing the testimony iftime allows does not address the

prejudice that is caused to

the other parties whenthere is time for

the testimony.

Therehave been instances where participants have

been allowed to

file testimony either late or at hearing,

and this has

prevented the Illinois EPA from adequately preparing for and

addressing the issues raised in that testimony or required additional

hearing dates to do so, thereby materially prejudicing the Agency.

Requiring that all participants to a regulatory matter pre-file

testimony keeps everyone on a level playing field.

Proposed Change:

Add the following language to the end of subsection (g):

“and

where

its submission will not materially prejudice the

proponent.”

Comments to Part 103

Section:

103.106 General

Comment:

Section

103.106 provides that “enforcement proceedings may be

initiated by-the Attorney General ofthe State ofIllinois or any

personmay file with the Board a complaint.

.against any person

allegedly violating this Act or

any rule

or regulation thereunder or

any permit or term or condition thereof. 415

ILCS

5/31(d).

Complaints filed by persons other than the Attorney General ora

State’s Attorney will be

known

as citizen’s complaints.

The

separate references in the first sentence to the Attorney General

and

any

otherperson

are

unnecessary, inasmuch as each must file a

complaint in order to initiate enforcement.

Proposed Change

Section

103.106 should be changed to read “Enforcement

proceedings may be

initiated by filing with the Board a complaint

Section:

103.202(a)

Parties

Comment:

In matters where the Agency is requestedby the Board to conduct

an investigation and thereby be named a

“party

in interest,” a

situation may, arise where the remedy being sought would involve

Agency permitting decisions or oversight of some remedial or

corrective action.

In such a case, the Agency would have a

significant interest in fashioning the remedy since it would involve

the exercise ofAgency discretion and use of Agency resources,

and would wish to take an active position in the case.

Allowing

the Agency to

align

itself

with a

party

would provide the necessary

flexibility.

Proposed Change:

Addthe following language to the end of Section

103 .202(a):

“Upon motion ofthe Agency, theBoard may align the Agency

with any other

party

or parties as appropriate.”

Section: 103.204(c)

Notice, Complaint, and Answer

Comment

Section

103 .204(c)(3) makes compliance with the requirements for

filing a complaint discretionary in the case of a citizen’s complaint

(“A citizen’s complaint may be flled...”).

A complaint may be

filed by

any

person.

There is no

good reason not to require that a

citizen’s complaint meet the very basic elements that

are

listed in

subsection 103.204(c).

Since only individual citizens may appear

for themselves, most ofthe cases will be handled by attorneys,

who are assumed to be able to satisfy the minimal pleading

requirements.

In the event ofan individual appearing for himself,

the Board will always have the flexibility to grant leave to

amend

,to

satisfy Board concerns.

Proposed Change:

Subsection 103.204(c)

should be changed to read “The complaint

must be captioned in accordance with 35

Ill. Adm.

Code

lOl.Appendix A, Illustration A and contain...” and subsection

103.204(d) should be deleted.

Section:

103.204(g) Notice, Complaint, and Answer

Comment

Proposed Change:

Subsection 103.204(g) requires that all complaints must

contain

specific language concerning failure to answerwithin 60 days.

Under Section 103.204(a), a notice must be filed with the

complaint.

The required language would be more obvious in the

notice accompanying the complaint, and would be similar to the

notice and warnings found on a summons in a civil court action.

Change subsection 103.204(g) to read

“.

.must include the

following

language in the notice..”

Section: 104.202(c)(1): Section 104.214(a), (b)

Section l04.202(c)(1) provides that the one copy ofa variance

petition must be served on the Agency.

The service on the Agency

must also be initiated on or before the date the petition is filed with

the Board.

Sections 104.214(a)

and (b) require that the Agency

publish notice in the newspaper and give notice to designated

individuals within 14

days

of receipt ofthepetition.

Some

situations could

arise

in which theAgency would be placed in a

position ofgiving notice ofpetitions before they are actually filed

with the Board or giving notice ofpetitions that ultimately are not

filed at all.

Section:

104.2

Motion for Modification of Internal Variance Dates

Section 104.2 12 allows forthe

modification of internal variance

dates upon motion ofthe petitioner.

Internal variance compliance

dates

are contained

in a final Board order.

Modification of a final

order is extraordinary relief and should fit

within

the presently-

available methods

(i.e.,

Motions for Reconsideration under

Sections

101.520

and

101 .902, and RelIef from and Review of

Final Opinions and Orders under Section

101.904).

Modification

ofa final order is designed to be difficult, and should not be as

easy as typical motion practice.

Comments to Part 104

Comment:

Proposed Change:

Delete Section

104.212.

Section

104.2 14(f) Agency’s Notice ofPetition

Comment:

This Section adds a new requirement that the Agency must file

with the Board a certification ofpublication within 21

days after

the publication ofnotice of a variance petition.

The Agency has no

control over when itreceives (and consequently can send to the

Board) the certification.

Publication of variance petition notices is

handled for the Agency by the Illinois Press Association.

According to the Press Association, it takes them at least 15 days

to receive backthe notice ofpublication

(tearsheet),

which they

then forward to the Agency, where it may take

a few days to get to

the Division ofLegal Counsel.

The Board’s proposed procedural

regulations now give petitioners in adjusted standard proceedings

(who

do not have to go through the Illinois Press Association) 30

days afterpublication to file certifications of publication.

In order

to avoid delays and confusion caused by the fact that

the Agency

has no control over when it receives the certificate ofpublication,

the Agency suggests that, consistent with the timeframes allowed

for adjusted standards, it be allowedto attach the certificate of

publication to its variance recommendation or be given 30 days

after publication to file the certificate ofpublication.

Proposed Change:

The Agency recommends that

this Section

be changed to require

that a certification of publication accompany the Agency’s

variance recommendation or at least allowthe Agency 30

days to

file a certification ofpublication.

Section

104.226(a) Amended Petition and Amended Recommendation

Comment:

Section 104.226(a) adds a newrequirement that the Agency

publish and send out an additional notice when a variance petition

is amended,

irrespective ofwhether the amendment is substantive

or does not change the relief requested.

This new provision

increases the public notice expenses forthe Agency by requiring a

renotice of every amendedvariance petition, although there is no

need to publish an additional notice when the change is not

substantive and

therefore does not render the initial notice

procedurally inadequate.

Proposed Change:

The last phrase of this paragraph should be amended to mirror the

language used in the Section 104.418(a) addressing the renoticing

ofamended adjusted standard petitions only when substantive

changes are made to the original petition.

Section:

104.226

Amended Petition

and

Amended Recommendation

Comment:

Proposed Change

Section

104.226(a) allows petitions for variance to be amended

prior to the close ofthe hearing, and provides that after the hearing,

amended petitions may be filed only with leave ofthe Board.

Section

104.226(b) provides that the Agency may amend,its

recommendation even without an amended petition prior to the

close ofthe hearing.

In view ofthe resources ofthe Board and of

theparties that are necessary to schedule and hold a hearing, any

lastminute modifications to the position ofeither side should be

limited by time.

That way, the scheduled hearing could go forward

with no material prejudice to either side.

The Board (through the

Hearing Officer) would

still have the discretion to continue the

entire matter, but if it chose to proceed with the hearing, the record

would be more complete.

Change Section

104.226(a) as follows:

“The petitioner may amend

the petition no later than 30 days prior to the hearing,

ifa hearing

is held, or prior to the Board’s decision, if a hearing is not held, by

filing a motion pursuant to 35 Ill. Adm. Code 101 .Subpart E.

fl~

petitioner may file an amended petition at any later time only with

leave ofthe Board...”

Change Section 104.226(b) as follows: “The Agency may amend

its recommendationeven ifthe petitioner has not amended its

petition. In suchan instance, a recommendation may be amended

no later than

15 days prior to the hearing,

ifahearing is held, or 40

days prior to the Board’s decision date ifa hearing is not held...”

This

Section provides that

if a petitioner amends its variance

petition, the Agency must file or give

an amended recommendation

in writing or orally athearing, but in any event not later than 30

days after the filing of an amended petition.

Since the filing of an

amended variance petition recommences the Board’s decision

period under section 104.226(a),

it seems inconsistent to allow the

Agency only 30 days to respond to an amended

petition, but

days to respondto

an initial petition.

Ifa petitioner amends a

petition less than

15 days

after filing its initial petition, the

Agency’s initial response time will actually be shortened by this

provision.

Proposed Change:

To avoid this inconsistency, 30 days should be

changed to 45

days

in this section.

Comment:

Section 104.226(b) Amended Petition and Amended Recommendation

Section

104.234(e) Hearing

Comment:

This Section requires that a hearing be held if “~the variance

request,

if granted, would require

an amendment to the

State

Implementation Plan for a criteriapollutant under the CAA.”

Generally, requests for variances from regulations promulgated to

fulfill Illinois’ obligations under the Clean Air Act must be

submitted to USEPA as revisions to the relevant Illinois State

Implementation Plan (“SIP”) in order to be federally enforceable

and to maintain consistency between Illinois’ SIP and the Illinois

regulations.

Since hearings must be conducted for all

SIP

revisions variances that would require

an amendment to Illinois’

SIP willrequire a hearing to be federally enforceable.

However,

the Agency and the petitioner retain some discretion to determine

what variances will in factbe

submitted to USEPA as SIP

revisions.

It is possible that a petitioner will not be concerned

about the federal recognition ofits variance request; thevariance

request may be of such a short duration that U.S. EPA approval of

the SIP would not occur before the variance expires; or a hearing

in the context ofa related Clean AirAct Permit Program

proceeding might fulfill the SIP hearing requirements.

Proposed Change:

Delete 104.234(e).

Section:

104.404(b)

Request to Agency to Join as Co-Petitioner

Comment:

Section 104.404(a) provides that the Agency may,

in its discretion

(emphasis added) act as co-petitioner in any adjusted standard.

Section

104.404(b) requires that when the Agency receives a

request for assistance in initiating an adjusted standardit must

provide written notification ofits decisionwhether to join as a co-

petitioner and, ifit declines to join, must state the basis ofits

decision in the written notification.

Since the Agency’s decision in

this matter is entirely discretionary, the means

and content ofits

communication to the petitioner regarding the requestmay be

handled any way the Agency chooses.

It may

be more appropriate

to keep

this decision only

between the parties where the request

may occur in the context of

ongoing settlement negotiations.

Proposed Change:

Delete all the language in Section 104.404(b)

concerning

notification by the Agency ofits decision to join as co-petitioner.

Comments to Part 105

Section:

105.108

Dismissal ofPetition

Comment:

Proposed Change:

Section

105.108 lists four circumstances under which a petition for

review will be dismissed.

In the absence ofan expressed contrary

intent, it is generally presumed that such a list is exclusive.

Although the four stated grounds coverthe most common reasons

for dismissal, it is possible that additional grounds may exist.

For

example, the Agency has had a situation where

apro se

petition

was filed prior to the

actual final decision and the appeal was

dismissed as unripe.

In addition, the Code ofCivil Procedure

recognizes nine separate grounds for involuntary dismissal

applicable to

civil

actions in the Circuit Courts

(735

ILCS 5/2-

619(a)), including such reasons as lack ofsubjectmatter

jurisdiction, the petitioner’s lack oflegal capacity, the existence of

another action pending between the parties on the same issues in a

different forum, the action is barred by a prior judgment, the

Statute of Frauds,

and that the action is barred by “other

affirmative matter avoiding the legal affect of or defeating the

claim.”

The Agency suggests that the Board might benefit from an

additional general ground in Section

105.108 that

incorporates

other, but unnamed, reasons to dismiss the petition.

“A petition is subject to dismissal ifthe Board determines that:

(e)

Or. that other

affirmative

grounds exist that would bar the

petitioner from proceeding.”

Section: 105.118

Sanctions for Untimely Filing of the Record

The use of

the term “may” implies discretion on the part

of the

Board in imposing sanctions for a late-filed administrative record.

In most cases the record will not be due until 30

days prior to the

scheduled hearing,

so there should be no problemfiling the

administrative record on time.

However, in the extraordinary case,

where there is a short delay due to inadvertence, miscalculation or

unanticipated delays in delivery, the imposition ofsanctions is

counterproductive to both parties.

Proposed Change:

Change Section

105.118 to

read

as follows:

“Ifthe State agency

willfully,

or without reasonable cause, fails to file the record on or

before the date required under this Part, the Board may sanction

the State agency in accordance with 35

Ill. Adm. Code 101.Subpart

Comment:

Section 105.200

Applicability

The language ofSection

105.200 states that

it applies to

any appeal

to the Board of an Agency final permit decision and “other final

decisions ofthe Agency.”

This is a vague, undefmed phrase

which

may include conclusions or opinions or interpretations put forth by

the Agency that are not appealable pursuant to any statutory

authority.

Proposed Change:

The phrase “and other final decisions ofthe Agency”

should be

deleted.

Se~tinn105204(fi

Who Ma~

a Petition for Review/Other Agency Final Decisions

Comment:

While the language ofSection

105.204(f) refers to an Agency

“final decision,”

the only type ofdecision which may be appealed

to the Board is one that is made in conjunction with a clear

statutory right of appeal.

Proposed Change:

This section should be amended to

make it clear that the “final

decisions” referred to are only those final decisions with a statutory

right ofappeal.

Section

105.210

Petition Content Requirements

General Comment:

Proposed Change:

There have been occasions whenthe recipient of an Illinois EPA

final decision has sent a letter or request to the Board asking fora

90-day extension oftime by which to file a formal appeal, but no

such letter has been sent to the Illinois EPA.

It is not uncommon

for the Board, at the conclusion ofthe initial 35-day period for

filing either the formal petition orrequest for extension oftime, to

treat the letter orrequest as a formalpetition.

The Board then

grants the recipient leave to file

an amended petition (well after the

date which such a petition would otherwise be due) which would

contain all requisite elements ofa formal petition.

This practice

essentially puts the Board in the position of acting on behalf ofthe

recipient, with such act being without any supporting authority.

Though this

comment is directed at Section

105.2 10,

Sections

105.108(a),

105.108(b), 105.206(a) and

105.208 are also affected.

These rules, as needed, should be amended to reflect the position

that only

a petition or request for extension oftime may be filed

following the receipt of a final appealable decision, and that sucha

document must be clearly labeled or described.

Also, if the

document does

not meet all the requisite

elements for filing, the

filing party

may be given leave to amend the document, but such

Comment:

leave should not include an allowance to file the document beyond

the statutory time allowed.

Section 105.2l2(b)(1)

Agency Record

Comment:

The scope ofthe requisite contents ofthe Agency record have been

expanded from the Board’s previous rule on this topic.

In this

subsection, one element of the record is described as “any

permit

application or other request that resulted in the Agency’s final

decision.”

The phrase “other request” is overly broad, since it

could be interpreted to include requests for opinions,

interpretations, or other positions that do not carry statutory rights

of appeal.

As such, no appeal—and no corresponding Agency

record—would be possible.

Proposed Change:

The words “or other request” should be deleted.

Section

105.212(b)(2)

Agency Record

Comment:

Another example of howthe proposed rules expand

on the current

requirements ofthe Agency

Record is that in addition to requiring

correspondence between the petitioner and the Illinois EPA, the

new

rules

also require that any documents or materials submitted

by the petitionerto the

Illinois EPA must also be included.

This is

an overly broad requirement, since it could include documents or

materials submitted by the petitioner on completely unrelated

issues.

It is not uncommon for a petitioner to submit permit

applications (and accompanying documents) for morethan one

permit at a time, or for different media permits (e.g., water, land,

air).

For example, it would be burdensome and a waste of

resources for both the Agency

and the Board to include documents

submitted for a waterpermit in a record of a land permit appeal.

Proposed Change:

The

language should be amended to read, “Correspondence with

the petitioner and any

documents or materials submitted by the

petitioner to the Agency related to

the permit application.”

Section

105.2l2(b)(3)

Agency Record

Comment:

Another example of howthe contents of the Agency record have

been expanded from the Board’s previous

rule is the language “or

other Agency final decision” in

this subsection.

The

phrase

overly broad, since it could include

opinions, interpretations, or

other positions put forth by the Illinois EPA that do not carry

statutory rights ofappeal.

Proposed Change:

The words “or other final Agency decision” should be deleted.

Section

105.214(a)

Board Hearmn~

Section 105.214(a)

states that the hearing on a permit appeal will

be based exclusively on the record before the Illinois EPAat the

time ofthe permit decision, unless the parties agree to supplement

the record pursuant to Section

40(d) ofthe Act (415 ILCS

5/40(d)).

However, Section

40(d) only references hearings held on permits

issued pursuant to

Section

9.1 ofthe Act (415 ILCS

5/9.1).

Section 9.1

involves decisions regarding the Clean Air

Act.

Therefore, any Board hearing on matters other than permits sought

or issued pursuant to the Clean Air Act would not fall within the

purview of Section 40(d).

Proposed Change:

A separate subsection should be created, with the last sentence of

Section

105.2 14(a) being placed there along with qualifying

language stating that the provision applies only to permit decisions

related to Section 9.1 ofthe Act.

Section 105.400(a)

Parties/Petitioner

This

section only

refers to decisions made by the Illinois EPA

pursuant to Section

57.1

etseq.

ofthe Act (415 ILCS

5/57.1).

However, there are still appeals ofdecisions that are filed by

parties pursuant to the now-repealed sections ofthe Act that

addressed the “old” Leaking Underground Storage Tank Law, or

Section 22.18b(g) ofthe Act.

Proposed Change:

A reference to Section 22.18b(g) ofthe Act should also be

included.

This section only refers to final determinations made by the Illinois

EPApursuant to Section

57.1

etseq.

ofthe Act (415 ILCS

5/57.1).

There is also a citation made to Illustration A ofthe Part, which

lists all appealable decisions.

However, there are still appeals of

decisions that are filed by parties pursuant to the now-repealed

sections of the Act that addressed the “old” Leaking Underground

Storage Tank Law, or Section 22.18b(g) of the Act.

Proposed Change:

A reference to Section 22.18b(g) ofthe Act should also be

included, either in Section 105.402 or

in Illustration A.

Comment:

Section

105.402

Who May File a Petition for Review

Comment:

Section

105.404

Time for Filing the Petition

The time for filing a petition is tolled beginning from the

date of

service ofthe Agency’s’s final decision.

This is a departure from

the present practice of the Board, which uses the actual date of the

Agency’s decision for purposes of calculating the timely filing ofa

petition.

If the date ofservice is used, not only does it create the

possibility discussedregarding Sections 101.3 00(d)(1,2), it could

also cause problems in determiningthe exact date ofservice.

(This

issue will also be discussed regarding Section

105.408(b).)

Proposed Change:

The words “of service” should be deleted from the last sentence of

the first paragraph ofSection

105.404.

Section 105.408

Petition Content Requirements

General Comment:

Proposed Change:

There have been occasions when the recipient of an Agency final

decisionhas sent a letter or request to the Board asking for a

90-day extension oftime by which to file a formal appeal, but no

such letterhas been sent to the Agency.

It is notuncommon for

the Board, atthe conclusion of the initial 35-day period forfiling

either the formal petition or request for extension of time, to treat

the letter or request as a formal petition.

The Board then grants the

recipient leave to file an amended petition (well after the date

which such a petitionwould otherwise be due) that would contain

all requisite elementsof a formal

petition.

This practice essentially

puts the Board in the position ofacting on behalf ofthe recipient,

with such act being without any supporting authority.

Though this comment is directed at Section 105.408, Sections

105.404 and

105.406 are also affected.

These rules, as needed,

should be amended to reflect the position that only a petition or

request for extension oftime may be filed following the receipt of

a final appealable decision, and that such document must be clearly

labeled ordescribed.

Also, ifthe document does not meet all the

requisite elements for filing, the filing party may be given leave to

amend the document, but such leave should not include an

allowance to file the document beyond the statutory time allowed.

One requirement ofa petition is a statement specifying the date of

service ofthe Agency’s final decision.

All final appealable

decisions are

issued by the Agency via certified mail.

Therefore, if

this

provision is to remain in the rules (i.e., if the language of

Section 105.404 regarding date of service ofthe Agency final

Comment:

Section 105.408(b)

Petition Content Requirements

Comment:

decision is not changed), thenthe petition should either include a

copy ofthe certified mail receipt with the date as proofofthe date

of service, or the Agency should be allowedto refute any statement

by producing its copy ofthe return receipt.

Proposed Change:

The requirement should either be stricken or, if left as a

requirement, should also impose the requirement ofincluding a

copy ofthe certified mail receipt as

an exhibit.

The Agency should

also have a rightto challenge any statement of service, with the

date ofa certified mail return receipt being the uncontested date of

service.

Section

105.410(b)(1)

Agency Record

Comment:

This element ofthe Agency Record does not include a reference to

decisions being fmal and appealable.

Proposed Change:

Either a reference should be made that the Agency decision must

be an appealable one pursuant to statute, or reference should be

made to Illustration A ofthe Part.

Section

105.41 0(b)(2)

requires that any

documents or materials

submitted by the petitioner to the Agency must also be included in

the Agency record..

This is an overly broad requirement, since it

could include documents or materials submitted by the petitioner

on completely unrelated issues.

Proposed Change:

The language should be amended to read, “Correspondence with

the petitioner and any documents or materials submitted by the

petitioner to the Agency related to the plan orbudget submittal or

otherrequest.”

Section:

105.410(b)(4)

Agency Record

Comment:

Same comment regarding the “any other information the Agency

relied upon”

language in

105.212 above.

Proposed Change:

“4)

Any othermaterial

information the Agency relied upon in

making its final decision.”

Section

lOS.410(b)(2)

Agency Record

Comment:

Section

105.412

Board Hearing

Comment:

At the conclusion ofthis section, a citation is made to

Sections

40(d) and 40.2 ofthe Act.

These sections deal only with appeals

ofClean Air Act permits, and thus

should not be referenced here.

Proposed Change:

The

citation should be deleted.

Former Section

103 .206, “Official Notice”

Comment:

Former Section 103.206, “Official Notice,” is not included in Part

101 ofthe proposed rules.

In the current rules, Section

105.1 02(a)(6) incorporates the enforcement procedures ofPart 103

for non-NPDES permit appeals.

That incorporation is not included

in the proposed rules.

Accordingly, official notice is no longer in

the rules for LUST and permit appeals.

It is an essential tool for

Board hearing practice.

Proposed Change:

The language offormer Section

103.206,

“Official Notice,” should

be expressly added to Part 101

ofthe proposed rules.

Subpart D Generally

Comment

The Agency seeks clarification in those instances where the

Agency will be deemed to have denied a UST technical plan,

report or application that had been submitted pursuant to Title XVI

and Part 732 by reason ofthe Agency’s failure to take final action

within the prescribed time period.

What is the issue on appeal?

it substantive

i.e., whether the plan, report or application should

have been approved (had the Agency actually reviewed it)?

Or, is

it procedural

i.e.,

did the Agency really take final action within

the prescribed time period, ornot?

Comments to Part 106

Section:

106.707(b)( 1 ~—Notice,Statement of Deficiency

Comment

The citation to “106.612(a) of this Subpart” should be “106.712(a)

ofthis Subpart.”

Proposed Change

Change “106.6 12(a)” to “102.712(a).”

Respectfully submitted,

Date:

June 5, 2000

1021

North Grand Avenue East

P0 Box 19276

Springfield Illinois 62794-9276

ILLINOIS ENVIRONMENTAL

Lisa Moreno

Assistant Counsel