ILLINOIS POLLUTION CONTROL
    BOARD
    July
    10,
    1980
    IN THE MATTER OF:
    AMENDMENTS TO THE
    )
    R80-2
    PROCEDURAL
    RULES
    )
    PROPOSED RULE.
    SECOND NOTICE.
    OPINION AND ORDER OF THE BOARD
    (by J.D. Dumelle):
    This proceeding was initiated on January
    30,
    1980 when
    the Board received a letter from the Chairman of the
    Environmental Law Committee of the Chicago Bar Association
    asking that Procedural Rule 311 (Continuances) be amended.
    On February
    21,
    1980 the Board adopted a Proposed Order on
    its own motion.
    The Proposed Order was published in
    Environmental Register 212 dated March
    3,
    1980 and
    in the
    March 14,
    1980 Illinois Register.
    Rule 311
    This rule was first adopted by the Board on October
    8,
    1970
    (In the Matter of:
    Procedural Rules, R70—4,
    1
    PCB 43—51).
    At that time continuances were granted by the Hearing Officers
    upon a showing of necessity and were not limited in their
    duration.
    Rule 311 was amended by the Board on February
    14,
    1974 to provide that continuances in excess of 45 days would
    require Board action
    (see In Matter of: Adoption of Revised
    Procedural Rules of the Pollution Control Board, R73—14,
    14
    PCB 155—158, October 10,
    1974).
    Rule 311 was amended to its
    present form on December 16,
    1976
    (In the Matter
    of: Procedural
    Rules Revisions, R75-1,
    24 PCB 481-489).
    At that time the Board
    limited the Hearing Officers’ authority to 45 days per contin-
    uance and a total of
    90 days.
    Continuances in variances and
    permit appeals were prohibited unless the statutory deadline
    for Board action was extended by the petitioner.
    (see In the
    Matter of:
    Procedural Rule Revisions, R75—1, May 12,
    1977,
    25
    PCB 529,
    533).
    NEED FOR THIS RULEMAKING
    In a fact sheet attached to the January
    30,
    1980 Chicago
    Bar Association letter,
    the 45 and 90 day
    limitations in Rules
    311(a) and
    (b) were considered unrealistic.
    The Board agrees
    that
    it is practically impossible
    to proceed to a hearing in
    an enforcement case,
    even with a settlement, within 90 or
    even 180 days
    of the date a complaint is
    filed
    (the hearing
    officer can presently grant continuances that total
    up to
    90 days without Board action, which can result
    in up to a
    180 day period).
    The Board has recognized this difficulty by
    granting almost every motion for a continuance which has been
    filed
    in enforcement cases.
    —2—
    EFFECT OF THIS RULEMAKING
    Granting additional authority
    to the ~é~áringOfficers
    will place the responsibility to conduct an orderly
    proceeding where it belongs.
    The Hearing Officers already
    have the authority to rule on motions to
    amend
    cpmplaints.
    It follows that they should be able to rule on continuances
    to avoid undue surprise and coordinate discovery.
    Proposed Rule 311(b)
    concerns those permit appeals and
    variances in which hearings are scheduled,
    With
    the
    exception of NPDES permit appeals, to which the
    90 day
    statutory decision period does not apply,
    no continuances are
    to be granted until a written waiver extending the decision
    date has been filed with the Clerk of the Board.
    From time
    to time the Board has issued orders which have
    directed parties to proceed to a hearing
    or face dismissal.
    These orders are usually in cases which have no recorded
    activity for several months.
    Proposed Rule 311(c) will simply
    codify this existing Board practice.
    PUBLIC COMMENT
    Three public comments were received.
    Public Comment
    No.
    1,
    from a Board Hearing Officer, suggested making extensions
    of deadlines automatic,
    The Board declines to follow this
    suggestion.
    Public Comment No,
    2 stated that the Illinois EPA has
    no objection to the proposed change.
    Public Comment
    No.
    3,
    submitted on behalf of
    Illinois
    Power Company and the
    law firm of Schiff Hardin & Waite,
    discusses two issues.
    First,
    the comment expresses disagreement
    with the statement that the
    90 day limitation on Board action
    does not apply to NPDES permit appeals.
    The
    comment disapproves
    of the inclusion of the phrase “whenever applicable”
    in Rule
    311(b) for this reason.
    The Board notes the comment but will
    not depart from its position
    in this matter as set forth in
    the February
    21,
    1980 Order of the Board
    in Nichols Homeshield,
    Inc.
    v. Environmental Protection Agency,
    PCB 79—66.
    The second issue
    raised by Public Comment No.3
    concerns
    possible interpretation of Rule 311(c).
    The comment. contends
    that the rule as
    drafted could
    be interpreted as allowing
    the Board
    to dismiss a dilatory proceeding without a hearing.
    The comment states that the Board has no authority to do away
    with those hearings which, the comment says, must be held
    under §~31,40, and 37 of the Environmental Protection Act(Act).
    The interpretation stated above
    is in fact the intended
    one,
    As discussed above, this is a codification of existing
    —3—
    Board practice.
    Dismissal
    (usually without prejudice) of cases
    is an essential tool that the Board uses sparingly.
    When
    properly used it aids
    in management of the caseload in an
    economical manner——directly,
    by actual dismissal,
    and indirectly,
    through threat of dismissal.
    ORDER
    This Order of the Board is subject to modification or
    withdrawal
    in the event of comment or objection by the Joint
    Committee on Administrative Rules.
    Procedural Rule 311 shall read as follows:
    311 Continuances
    (a)
    A motion for continuance for any enforcement, variance,
    or permit appeal proceeding shall be granted by the Hearing
    Officer whenever justice may require.
    All motions for
    continuance must be supported by an affidavit or written motion
    before the Hearing Officer by the person or persons having
    knowledge of the facts supporting the motion.
    (b)
    No continuance shall be granted for any variance or
    permit appeal proceeding unless the deadline for
    final Board
    action, whenever applicable,
    is extended by the petitioner.
    (c)
    Whenever the Board notes,
    in its discretion,
    that any
    variance petition, permit appeal,
    or enforcement case
    is
    not proceeding expeditiously to a conclusion, the Board
    may order that a hearing be scheduled within 21 and held
    within 60 days or the variance petition, permit appeal,
    or enforcement case will he subject to dismissal.
    IT
    IS SO ORDERED.
    I, Christan L.
    Moffett, Clerk of the Illinois Pollution
    Control Board,
    hereby c rtify that the
    a
    ye Opinion and Order
    was ~o~ted
    on the
    _________
    day of
    ___________,
    1980 by
    a vote
    Christan L. Moff~
    ,
    Clerk
    Illinois Pollutio
    ontrol Board

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