ILLINOIS

POLLUTION CONTROL BOARD

March

20,

1980

IN

THE

MATTER

OF:

AMENDMENTS

TO THE

)

R80—2

PROCEDURAL

RULES

PROPOSED OPINION OF THE

BOARD

(by

Mr.

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.

This Proposed

Opinion supports the Board~s Proposed Order.

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

conti-

nuance 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, 197~T~

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

(h) 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 days of

the date

a complaint

is

filed.

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 Hearing Officers

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 complaints.

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.

I,

Christan L.

Moffett, Clerk of the Illinois Pollution

Control Board, her~bycertify the abo~eProposed Opinion was

adopted on the ~

day of _______________________,

1980

by

a vote of

L.

Illinois Polluti

Board