General Comments:
~1O1.2OO-Definitions
§1OI.300(bI and (ci:
§101.302(b):
§101.302(h):
§101.306(b):
~101.403:
§101.500(b):
~101.512(a):
~101.614:
~101.616:
~101.616(b):
§101.616(a):
§101.618:
§101.618(f):
§101.622(b):
§101.622(g~:
~101.628(a):
§103.206(a)(1):
~105.600:
§107.500(b):

~li~LL~

RECEIVED

CLERK’S

OFFICE

BEFORE THE POLLUTION CONTROL BOARD

JUN

052000

IN THE MATTER OF:

)

STATE OF ILLINOIS d

)

pollution Control Boar

REVISION OF THE

BOARD’S

)

PCB

R00-20

PROCEDURAL RULES:

ILL.ADM.

)

(Rulemaking

Procedural)

CODE 101-130

)

COMMENTS

STEPHEN F.

HEDINGER

Stephen F. Hedinger, ofthe Law Offices of Stephen F. Hedinger, hereby submits his

comments to the First Notice Rulemaking in the above-identified docket.

General Comments:

This docket includes the Board’s proposed modifications to its procedural rules.

No provision is made, however, for pending or ongoing proceedings, and ofwhich procedural

rules will apply at what times during the pendency ofthe proceedings.

Some ofthe Board’s

proposed modifications are significant and potentially of substantive impact.

For instance, if it is

adopted in the final rules this Board will modify its long-standing practice ofnot requiring that

answers be filed to complaints, and instead the new rule will require that answers be filed, in the

absence ofwhich the complaint allegations will

be deemed admitted.

Will this rule apply to all

existing actions currently pending before the Board?

Similarly, provisions for discovery and

other pre-hearing procedures have been modified,

and in some instances greatly modified

will

these apply to pending actions?

When the Illinois Supreme Court modified its rules regarding

discovery several years ago, it specifically indicatedthat the newrules would apply only to

actions filed on and after a specified date.

It is recommended that this Board take a similar

approach to

these rules, and for purposes ofconsistency and clarity, the new rules should apply

only to actions or proceedings commenced following the effective date ofthese rules.

This Board might consider adding a provision forthe referral ofcases, both

adjudicatory and rulemaking, for alternative dispute resolution.

Increasingly courts and

administrative agencies throughoutthe United States, and includingthe federal courts and the

United States Department ofJustice, are utilizing dispute resolution mechanisms (and

particularly variations ofmediation) to simplify or eliminate the issues to

be tried in complex

civil cases, such as those typically before this Board.

Many states,

in fact, utilize thirdparty

neutrals to mediate both adjudicatory proceedings and differingpositions of difficult regulatory

proceedings.

At this juncture in this Board’s procedures, an appropriate provision might include

authorization for the Board or its hearing officer to stay proceedings while the partiesjointly,

and

through mutual agreement, present thedispute, or any portion ofit, to a thirdparty neutral to

attempt to resolve such disputes without thenecessity ofthis Board’s decisionmaking.

Since no

statutory authority allows for this Board to force parties to participate in such alternative dispute

resolution mechanisms, voluntary participation would have to be expected.

‘This Board, though,

could encourage suchparticipation by specifically recommending the procedure to litigating

parties, and providing a list ofavailable neutrals to mediate or arbitrate the parties’ dispute, or

any part ofit.

The trend toward such alternative dispute resolution will likely growsubstantiatly

over the upcoming years, and this Board should consider adding, now a provision that would

easily allow for utilization ofthose resources in the near future.

~1O1.112/~1O1.114

Did the Board intend to

include intern basis employees in

101.114, but exclude them in

§101.112?

~1O1.2OO-Definitions

The proposed regulations have included a definition of “recycled paper” that includes a

new standard to commence after July

1, 2000.

Since that date will likely come and go before this

rule becomes final, the definition should be reconsidered.

Also, based upon personal experience,

the Board should consider whether

deinked stock orpostconsumer material paper is

actually available in all markets in this State.

In addition, the definition of “registered agent”

should correspond with the definition

included in the Business Corporation Act

(805

ILCS

5/5.05).

The term “negotiation waiver” withinthe definition of“notice to reinstate” should itself

be defined.

Theterm “service list”, in conformance with past Board practice, includes all persons

included on a list who are interested in receiving service of documents.

A significant hardship

and expense, easily avoided, can and usually is experienced when multiple individuals within

one organization are identified on the service list, requiring (apparently) service upon all

individuals, even though they areall at the same address and/or within the same organization.

This definition, and this Board’s rules, should require that any persons or attorneys from an

individual organization (such as a law firm, or a state agency, or the Illinois Attorney General’s

Office, or a private organization) be included on the service forthe organization itself, leaving it

to the organization to provide copies ofparticular documents for each individual withinthe

organization interested in the docket.

§1OI.300(bI and (ci:

Section

101 .300~b)(2)

sets forth the “mailbox rule” forthese procedural rules.

Unlike the

Board’s current rule, though, documents will automatically be deemed filed on the date they are

postmarked even if they are received prior to their due date.

Under currentBoard practice, only

those documents actually and physically received by the Board after their due date are deemed

filed on the postmarked date.

Is this change intended?

Further,

101.300(c) includes, in its

second sentence, a parenthetical concerning facsimile filings; this parenthetical belongs in

101.300(b), which concerns filing dates

101.300(c) concerns service dates).

§101.302(b):

This provision states that service ofdocuments on a hearing officer does not constitute

filing with the Board.

Does this rule intend to

include documents “filed” during the course of a

hearing?

It is not uncommon for a party to submit to the hearing officer, on the record and in the

course ofa hearing, a written motion on some point at issue in the case atthat stage.

It would be

incongruous for the parties to discuss the motion on the record with the hearing officer (who very

well might

be authorized to rule on the motion) on a particular day, but officially not having the

motion filed until it is actually received in the Board’s Chicago office at some later date.

exception should be made to this provision for documents submitted during the course of, and

relevant to issues pertaining to, a hearing.

§101.302(h):

This provision requires a “signed” original and nine duplicate copies ofdocuments to be

served on the Board.

By whom must the original be signed?

§101.302(j):

As othercommentors have done, I must object to the significant reduction in available

page lengths for documents to be served with the Board.

Frequently issues are complex and

numerous, and the page limits set forth may greatly reduce the opportunity to

fully address

relevant issues.

‘

§101.306(b):

This provision should also include a requirement that the Board consider whether the

parties who were involved with the incorporated materials or the same are similarly situated as

theparties involved in the instant Board proceeding.

~101.403:

This provision concernsjoinder ofparties, and allows the Board, on motion, to add a

person as a party if a complete determination ofthe controversy requires the person’s attendance,

or if it may be necessary for the Board to impose a condition on the person.

It would seem that

as a prerequisite to this Board’sjurisdiction over anyone, the personmust be chargeable with a

violation ofthe Environmental Protection Act.

There appears to be no authority for this Board to

simply bring parties before it who have not voluntarily sought to be parties, and who are not

charged with having committed any violationofthe Environmental Protection Act.

101.403(b)(2):

The third line down includes a typographical omission of the word “Practice” between

the words “Corporation” and “of’.

§101.500(b):

This requires a response to

a motion

within seven days ofthe

motion’s service,

in the

absence of which objection will be deemed to have been waived.

This

unduly

harsh

deadline, as it is under the Board’s current practice.

At least fourteen days should be allowed for

any serious response to any serious motion, and in facttwenty-one or twenty-eight days would

provide a much better quality ofresponses for this Board’s consideration.

~101.502j~

This provision, concerning hearing officer rulings on non-dispositive issues, indicates

that objections are waived if not filed with the Board within seven days after theBoard’s receipt

ofthe transcript.

Are such fillings to

be considered an appeal to the Board of hearing officer

orders, as set forth in

101.518, or are these to be considered something different?

Does this

apply to objections to hearing officer rulings made prior to the hearing, but which were

previously appealed?

Further,

102.502(c)

mentions a “certification ofa question to the Board;”

is this “certification”

different than an appeal to the Board of a hearing officer order, or ofan

objection to be filed within seven days after the Board receipt ofhearing transcript?

Finally,

the parties know whenthe Board receives the transcript?

Is it in all cases delivered to the parties

at the same time as it is to the Board?

Seven days is an unreasonably short amount oftime

within which to identify all hearing officer rulings for which objections will be addressed to the

Board, and to commit those objections to a written form to be flIed.

Fourteen days, or even

days, would appear to be more appropriate.

Further, does the Hearing Officer’s authority extend

to motions which partially dispose ofproceedings?

The wording utilized suggests that the only

restriction upon the Hearing Officer is for cases wholly

dispositive ofa proceeding.

~101.510(e):

Is there any authority for the Board to assess actual costs of newspaper notice of a

rescheduled hearing, in the event it chooses to grant a motion to cancel a hearing? Ifthe point is

that the Board will condition such cancellation upon payment of such costs, that point should

probably be made explicit in these regulations.

The

same is true of

101.510(f), which allows

for costs forthe court reporter.

~101.512(a):

The phrase “and/or” in the second line ofthis paragraph should be replaced simply with

the word “and.”

~101.614:

What is the purpose ofthis paragraph?

It appears to be redundant with §101.616, and

seems to add nothing to that provision.

At worst, this Section appears to allow a hearing officer

“take charge” of discovery by ordering all discovery on his or her own initiative, and

completely limiting or conditioning any further oradditional discovery the parties may wishto

engage in.

This should be replaced with more conventional provisions regarding production of

documents, inspection offacilities or recovery ofsamples, and physical examination ofparties

(ofcourse, where appropriate).

~101.616:

No specific provision is included that incorporates privileges recognized by the Circuit

Courts ofIllinois, or providingthat suchprivileges will be recognized in Board proceedings.

This appears to be an oversight of a requirement ofthe Administrative

Procedure Act.

~101.616(b):

This Section refers to a hearing officer authority to

“deny requests for discovery.”

The

concept ofa “request for discovery” is never clearly set forth in these rules, though, and in the

absence ofsome clear indication of its meaning, should probablybe deleted.

Alternatively, more

conventional mechanisms such as authority to rule upon motions to compel ormotions for

protective orders should probably be

inserted.

§101.616(a):

What is the Board’s authority for issuance ofsanctions, and in particular monetary

sanctions?

Also, this provision appears to be lacking a procedure by which a party who is

alleged to have violated the discovery rules can challenge the allegation and be heard on the

claim.

§101.618:

I agreewith the observation ofthe Office ofthe Attorney General that the time for

returning admissions offact and genuineness ofdocuments should correspond with the time

provided for in the Supreme Court Rules.

The same holds true for other discovery devices

utilized by both the Circuit Courts and by this Board, such as interrogatories; discrepancies in the

time allowed can cause confusion with no real corresponding benefit.

§101.618(f):

A comma should be added after the very lastword (“matters”) on the sixth line of this

subparagraph.

§101.620(b):

Is there any benefit to being required to file discovery materials, including

interrogatories, with the Board?

The requirement for filing such discovery materials has in the

past created some difficulties with respect to trade secret information, which could be avoided if

this Board, like the Circuit Courts, allowed discovery to

simplyflow betweenthe parties until

and unless

a dispute arises, at which time specific motions addressing specific discovery issues

could be raised and entertained.

Presumably this would also cut down on the amount of

paperwork generated atthe Board, and the amount ofpaper storage the Board must maintain.

J,Li~

Part 101., SUbpart

No specific provisions exist for requests to produce documents, requests to view premises

or to obtain samples, orfor deposition practice and the uses ofdepositions.

In general parties

have, in the past, simply followedthe Code of Civil Procedure and Supreme Court Rules with

respect to these specific discovery devices, but as long as the Board is revamping theprocedural

rules, it would make sense to specifically address these common discovery tools.

In addition, the

Board may want to consider adopting an “initial disclosure” rule, like that utilized by the Federal

Courts.

It would be particularly useful and likely to expedite proceedings to require

complainants to provide to respondents basic information and evidence supporting the complaint,

such as relevant documents and witness

lists, as an early automatic process rather than making

respondents pursue this information in discovery.

~101.622:

No provision is made for a notice to a party to appear and produce documents at any

deposition or adjudicatory hearing.

Compare Supreme Court Rules 204(a)(3) (compelling

appearance ofa party at a deposition),

and 237(b) (compelling appearance ofa party at trial).

Absent such notices, these rules would appearto

contemplate that parties would have to

subpoena one another to compel

attendance and production.

§101.622(b):

The last sentence ofthis paragraph provides that the failure to serve a subpoena upon the

Board’s clerk and hearing officerwill renderthe subpoena null and void.

When must the

subpoena be served upon the clerk and hearing officer to avoid this result?

How can the

subpoenaed partyknow that the subpoena is null and void?

§101.622(g~:

Is itthe Board’s intention that the limit upon the length-ofdepositions ~threehours) only

applies to subpoenaed witnesses (presumably third parties, if party witnesses need to respondto

a notice to

appear and produce)?

Although some rationale could be discerned from such a

distinction, in general the factors warranting limiting non-party depositions would appear to also

apply to party depositions.

Moreover,

100.622(g)would allow the parties to agree to a longer

deposition, apparently without the non-party’s input, which appears to counteract any concerns

with the status ofthird parties.

The three hourlimit should apply to parties and non-parties alike,

or should be eliminated altogether.

~101.626(c):

This provision allows for the admissibility ofscientific/technical “articles, treatises or

materials” apparently without any foundation, subject to “refutation” or “disputation” by the

opponent at hearing.

This is a highly objectionable provision.

Although articles may appearin

prestigious and well-knownjournals, and treatises may be published by well thought of

publishing companies, merely the printing or publishing ofsuch articles does not in and ofitself

establish the legitimacy ofthe scientific position being taken, nor ofthe relevance ofthe subject

ofthe written workto the circumstances ofthe case being decided, without corroborating expert

testimony.

This provision could prove disastrous, placing the burden on an opponent to hire

experts to reveal “junk science” being peddled in journals or treatises.

~101.628(a):

A comma is included in the first line of this paragraph, which should be deleted.

§101.800:

This provision allows for sanctions, including monetary sanctions, and again I question

the Board’s authority to obtain such sanctions.

Further, I questionthe Board’s authority, as an

administrative agency, in utilizing its “discretion” in determining what sanctions to impose,

particularly in the absence of any express statutory’provisions establishing relevant factors.

§103.204(e):

This provision requires that an answer be filed within sixty days following the filing of a

complaint;

103.204(f) requires that a “Miranda”

type warning be included in all complaints,

warning ofthe consequences offailing to file an answer.

The requirement to file an answer is, of

course, contrary to this Board’s practice since its inception, and this abrupt reversaLmay cause

significantproblems to the bar and, more particularly,to citizens.

Further, this provision appears

to ignore the permissive language of §31 (c)(1) of theEnvironmental Protection Act, 415 ILCS

5/31(c)(1),

which allows a party to

file an answer but does not mandate it.

Finally, the

requirement that a complainant warn his opponents ofthe consequences offailure to file an

answer would appear to runthe risk ofrequiring legal counsel to warn his client’s adversary

about a matter oftactical advantage to

the client.

This type ofpotential interference with

attorney-client relations and fiduciary obligations would also seem inappropriate, particularly in

the absence of specific statutory authority.

§103.206(a)(1):

The last sentence ofthis subparagraph states that “The movant also must serve the

complainant with a copy ofthe motion to add a respondent.”

Are not all pleadings to be served

on all parties?

If so, why is a special mention being made that the movant must serve’upon the

complainant a copy of this motion?

§103.206(d):

I agree with other commentors that counter-respondents and cross-respondents are

already parties to a proceeding.

~~3.208(b)

and (c):

This provision allows the Agency to inform the Board that it has decided “not to

investigate” in response to a Section 30 inquiry by this Board.

That Section requires an

investigation by the Agency upon such notice from the Board, and so there would seem to be no

authority for theAgency to

decide “not to investigate.”

In fact, this would seem to be a violation

oftheEnvironmental Protection Act, and this Board should not participate in or encourage

disregard for statutory mandates.

~103.210(a):

The number “101” needs a period immediately after it.

§103.212(c):

Is this provision intended to be a limitation upon motion practice in cases filed by the

Attorney General or a State’s Attorney on behalfofthe People ofthe State ofIllinois?

~103.302:

This provision requires a stipulation to all material facts prior to the Board acceptance of

settlement ofan enforcement action.

It is not uncommon, though, for the parties to an

enforcement action to reach agreement on a settlement that provides for no admission of

violation, or for admission ofonly certain allegations or the stipulation to certain facts but not to

others.

Ifit is the Board’s intent to not accept any settlement absent capitulation by the

respondent on all

salient facts, it is not unlikely that the number ofsettled cases will drop

dramatically, adding to the administrative burdens ofboth this Board and the Attorney General’s

,W’J

Office, as well as to the costs to the regulated community.

Ifthis provision is intended, however,

only

address stipulation that certain facts have been alleged, (but not necessarily agreed to or

admitted), then that point should be clarified.

~105.600:

This provision concerns appeals from “other” final decisions of state agencies, but only

addresses appeals “authorized by law” which are not otherwise addressed in these regulations.

No provision appears to be made forthose Agency decisions which result from a Board

regulation, but

for which no specific statutory authority exists.

An example is found at 35

Ill.

Adm. Code §620.250, providing for establishment of a Groundwater Management Zoneto

mitigate impairment caused by a release from a site.

The concept of a Groundwater

Management Zone is not expressed anywhere within the Groundwater Protection Act, yet

§620.250(a)

and (b)

allow for the Agency to approve of a Groundwater Management Zone

meeting the criteria of the regulation.

Since the statute is silent about creation of Groundwater

Management Zones, it is also silent about review ofAgency denials ofGroundwater

Management Zones, and so no appeal would appear to be “authorized by law.”

This section

should be revised to also provide for the procedures applicable to appeal from Agency decisions

allowed by this

Board’s regulations.

§107.500(b):

This provision appears to allow this Board to dismiss a siting denial review case upon the

mere allegation by a local governmental unitthat a petitioner has failed to pay costs.

Provision

for notice and hearing would seem to be appropriate.

§107.506(b):

This paragraph purports to identify thebases for Board reversal of siting decisions.

“catchall” subparagraph would be appropriate, providing that reversal is allowable if any other

ground provided by statute or case law is determinedto exist.

This will ensure that any future

amendments to the statute, or developments in case law, are not precluded from consideration by

this Board’s own procedural rules.

§108.200(b):

This Board should define “unit oflocal government.”

It has come to the attention ofthe

undersigned that certain questionable organizations are attempting to secure the mantle of“unit

of local government” forpurposes of theadministrative citation powers, and some clarity at this

level might ensure that all

such attempts are appropriate andjustifiable.

§108.506:

No provision has been made for evidentiary hearings on alleged hearing costs, even

though factual disputes on the costs will likely occur at some point.

Clearly ifthe AC Recipient

has grounds to challenge claimed costs, those grounds might include issues requiring

consideration of evidence.

Absent an evidentiary hearing process, such an AC Recipient might

have substantial grounds for challenge to the Board’s procedures on appeal.

Respectfully submitted,

StepheIF. Hedinger

Stephen F. Hedinger

133

4th

St., Suite 306

Springfield, IL 62701

(217)

523-2753

 phone

(217) 523-4366 fax