ILLINOIS POLLUTION CONTROL BOARD

September 12,

1991

IN THE MATTER OF:

)

AMENDMENTS TO 35 ILL.ADM.CODE

)

R90-24

101.103(d)

TO REQUIRE USE OF

)

(Rulemaking)

RECYCLED PAPER FOR ALL DOCUMENTS

)

FILED WITH THE BOARD

)

PROPOSED RULE.

SECOND NOTICE.

OPINION AND ORDER OF THE BOARD

(by J. Theodore Meyer):

This matter is before the Board on a rulemaking proposal filed

by Business and Professional People for the Public Interest

(BPI)

on

November

21,

1990.

BPI

asks

that the Board

amend

Section

101.103

(35

I1l.Adm.Code

101.103)

of

its

procedural

rules

to

require

the use

of

recycled

paper

for all

documents

filed

by

attorneys with

the

Board.

The Board

accepted the

proposal

on

December 4,

1990, and established a comment period on December 20,

1990.

The comment period expired on February

12,

1991.

Pursuant

to

Section

26

of

the

Environmental

Protection

Act

(Act)

(Ill.Rev.Stat.1989,

ch.

111

1/2,

par.

1026),

the Board

need not

hold a hearing on procedural ruleinakings, except as required by the

Illinois Administrative

Procedure Act

(APA)

(Ill.Rev.Stat.

1989,

ch.

127,

par.

1001 ~

seq.).

No hearing has been held.

On June

6,

1991,

the Board proposed the rule for first notice.

The rule

was published

in

the

Illinois Register on July

5,

1991,

at

15

Ill.Reg.

9822.

The

45 day comment period expired

on August

19,

1991.

Today the Board proceeds to second notice.

Proposal

The proposed

rule,

as published

for first notice,

requires

that all documents filed with the Board by attorneys or organized

environmental or trade groups shall be submitted on recycled paper.

The

proposal

states

that

“recycled

paper”

means

paper

which

contains

at

least

40

postconsurner material,

with

“postconsumer

material1’

defined

in

Section

3(f)

of

the

Illinois

Solid

Waste

Management Act.

(Il1.Rev.Stat.

1989,

ch.,

111 1/2, par.

7053(f).)

For further discussion of the proposal,

and for a review of public

comments on the proposal, see the Board’s June 6, 1991 first notice

opinion.

Public Comments

The Board received several public comments during the first

notice comment period.

Comments were received from the Illinois

126—2 19

---

2

Department

of Energy and Natural Resources

(ENR)

(P.C.#

11)1,

the

Illinois Environmental Regulatory Group (IERG), the Illinois State

Chamber

of Commerce,

the Illinois Farm

Bureau,

and the Illinois

Municipal

League

(collectively,

IERG)

(P.C.#

12),

Fine

Arts

Engraving Company

(P.C.#

13),

the

law firm of Coffield Ungaretti

Harris

&

Slavin

(Coffield

tJngaretti)

(P.C.#

15),

and DPI

(P.C.#

16).

The Board has reviewed and considered all of these comments.

Both

IERG

and Coffield Ungaretti have expressed continuing

oppositipn to the proposed rule, based mainly upon questions about

the price and availability of recycled paper.

IERG submitted an

office supply catalog from Quill

Company,

which lists

a ream of

non—recycled copy paper at $2.96 and a ream of recycled copy paper

at $3.98.

IERG also expresses its concern that mandating the use

of recycled paper would place recycling above the

issue

of waste

reduction.

IERG suggests

that the proposed rule be

amended to

encourage, rather than require, the use of recycled paper, and that

the Board encourage double-sided copying of documents

filed with

the Board.

(P.C.# 12.)

Coffield Ungaretti states that its paper

supplier indicates that recycled paper is between 8

and 10

more

expensive that non—recycled paper,

and contends that because the

price issue remains unresolved,

the Board should encourage rather

than require recycled paper.

Coffield Ungaretti also speculates

that the availability of recycled paper may decrease at some future

time, producing “further economic hardship”.

Coffield Ungaretti

further maintains that many exhibits submitted to the Board are not

available

on

recycled

paper,

and

that

the

added

expense

and

inconvenience of petitioning the Board to waive the recycled paper

requirement itself imposes an undue burden on persons practicing

before the Board.

Finally,

Coffield Ungaretti contends that the

definition

of

“recycled material”

in

the

Illinois

Solid

Waste

Management

Act

is vague

and

should be modified

in

the

Board’s

rules.

(P.C.#

15.)

Fine Arts Engraving Company’s comment also addresses the issue

of the definition of “recycled paper”.

Fine Arts suggests that the

Board

include

a

definition

of

the

40

postconsumer requirement

within

the

text

of

the

rule.

Fine

Arts

believes

that

the

definition in the Illinois Solid Waste Management Act is too vague,

Fine Arts suggests that the definition within the rule be modified

to provide that:

1)

a minimum of 10

postconsuxner once—sold, used

and then de-inked material must be included;

2)

the paper may or

may not include a percentage of cotton fiber material derived from

the secondary or postconsumer market, such as cotton linters

(a by-

product of linseed oil)

and/or reclaimed rags;

and

3)

the paper

1

The

Board

notes

that

ENR’s

comment

includes

ENR’s

most

recent list of vendors and manufacturers of recycled paper.

The

document,

entitled

Sources

of

Recycled

Paper,

June

1991,

is

available from ENR’s Office of Solid Waste and Renewable Resources

at 217/524—5454.

126—220

---

3

may include material which has been finished sold but not used for

various reasons, such as overruns, rejections, cancelled orders and

trimmings (such as from envelope conversions).

Fine Arts states

that a combination of these three

items should compromise 40

of

the material by weight.

Additionally,

Fine Arts states that the

Board

should

clearly

state

that

the

40

postconsuraer material

requirement is only for the purpose of documents filed with the

Board, and is not an attempt to require that law firms change their

“image”,

i.e.

letterhead.

Fine

Arts

states

that

although

stationery paper does not currently meet the 40

definition, these

papers are recyclable and are necessary in the chain of recycling.

Fine Arts states that these papers can and will become tomorrow’s

minimum 10

postconsumer once—sold,

used,

and de—inked material.

Fine Arts

also

contends that stationery

paper

is

a very

small

percentage of the paper generated by law firms.

(P.C.#

13.)

In its comments, BPI states that it recommends final adoption

of the rule

in

its present

form,

but wishes to respond to

the

comments filed by IERG,

Coffield Ungaretti,

and Fine Arts.

BPI

contends that IERG and Coffield Ungaretti’s claim that there is

a

significant

price differential between recycled and non—recycled

paper is refuted by ENR’s study

(P.C.#

3)

and BPI’s price figures

(Ex.

F to proposal) which find only

a minimal price differential.

BPI maintains that the answer to the price concern is not to amend

the rule to merely

encourage the use

of recycled paper,

but to

consider switching to a new supplier.

As to Fine Arts’ suggestions

about the definition of “recycled paper”,

BPI states that although

it

generally

agrees

with

the

view that

recycled

paper

should

include

a

minimum

of

10

postconsumer

once—sold,

used,

and de—

inked

material,

the

standards

in

the

Illinois

Solid

Waste

Management Act do not specifically require the minimum percentage.

Thus,

BPI contends

that the

Board must decide,

as

a

matter

of

policy,

whether

it

prefers

to

adopt

the

existing

statutory

definition of “recycled paper” or specify that at least 10

of the

paper content be once—sold,

used,

and de-inked waste paper.

BPI

does not believe that

law

firm stationery be excluded from

the

recycled paper

requirement, because

it would be unwise to

set

a

precedent for categorical exemptions.

Finally, BPI reiterates that

there

is widespread support

among attorneys for the required use

of

recycled

paper.

BPI points

to support

for

several recycled

paper initiatives from the Chicago Bar Association’s Environmental

Committee and

the

Chicago

Council

of

Lawyers,

and

to

Gardner,

Carton

& Douglas’ comment in support of this proposal

(P.C.#

10).

Board Conclusions

After careful consideration of all comments on this proposal,

the

Board

proposes,

for

second

notice,

to

amend

its procedural

rules

to require all documents filed with the Board by attorneys

and organized trade

and environmental groups

to

be on recycled

paper.

The Board recognizes the continuing concerns of IERG and

Coffield Ungaretti as to the cost of recycled paper.

However, the

12

6—22

1

---

4

Board

finds

that the

record

contains sufficient

information

to

justify a conclusion that the price differential is minimal.

If

some suppliers do not offer recycled paper at competitive prices,

perhaps paper

customers

should

look elsewhere

for

their

paper

needs.

As we stated at first notice, the Board believes that the

large majority of those covered by this rule will be able to obtain

recycled paper with little extra effort.

There

is nothing in the

record to support a speculation that the availability of recycled

paper might decline in the future.

Any participant covered by the

proposed rule

who truly

cannot

comply with

the recycled paper

requirement can move the Board for a waiver, pursuant to Section

101.103(e).

As

to

Coffield

Ungaretti’s

contention

that

many

exhibits are not available on recycled paper,

the Board believes

that

a

careful

reading

of

Section

101.103(d)

reveals

that

the

subsection

applies

only

to

“documents,

excluding

exhibits...”

However,

so that the rule

is perfectly clear,

we will amend the

proposed rule to specifically exclude exhibits from the recycled

paper requirement.

The

Board

has

considered

the

issue

of

the

definition

of

“recycled

paper”

and

“postconsumer

material”

very

carefully.

First,

as

to Coffield

tJngaretti’s

fear

that the

definition

of

“recycled material” in the Illinois Solid Waste Management Act is

vague, the Board points out that this proposed rule specifically

states that “recycled paper” means paper which contains at least

40

postconsumer material.

The proposed rule refers to Section

3(f)

of

the

Illinois

Solid

Waste

Management

Act

only

for

the

definition of “post—consumer material”, not for any definition of

“recycled

material.”

After

reviewing

the

definition

of

“postconsumer material”

in Section 3(f),

the Board believes that

the definition

is sufficiently specific.

The Board has compared

the Section 3(f) definition to the suggestions made by Fine Arts,

and we believe that the Section

3(f)

definition contains most of

the points raised by Fine Arts.

For example, Section 3(f)(2)

and

(6)

specifically

allow

for

material

resulting

from

printing,

cutting,

forming,

and

other

converting

operations,

and

for

overstock, or obsolete inventories.

These provisions

correspond

with Fine Arts’ suggestion that the definition of 40

postconsumer

material include material that has been finished sold, but not used

for reasons

such

as

overruns,

rejections,

cancelled

orders

and

trimmings.

The only substantive difference we

see between the

Section

3(f)

definition

and Fine Arts’

suggestions

is that the

Section 3(f) definition does not require a minimum of 10

of once-

sold,

used,

and de-inked material.

The Board will not modify the

definitions in the proposed rule,

but believes that the existing

definitions address the concerns raised by cornmenters.

In sum, the

rule

provides

that

“recycled

paper”,

for

purposes

of

practice

before

the

Board,

must

consist

of

at

least

40

postconsumer

material.

Section 3(f) of the Illinois Solid Waster Management Act

is used only for the definition of “postconsumer material”, and not

for any definition of “recycled material”,

etc.

126—222

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5

In

addition to

the

clarification

that

the

recycled paper

requirement does not apply to exhibits,

the Board will make three

other modifications to the proposed rule. First,

stationery,

such

as letterhead, will be exempt from the recycled paper requirement,

as long as that paper is submitted to the Board merely as a cover

letter or for other similar purposes.

Second, the Board will add

a phrase encouraging the use of double—sided copying of documents

filed with the

Board.

The

Board

agrees with

IERG

that waste

reduction is also a necessary step in dealing with the solid waste

problem,, and

that double-sided copying

of documents would be

a

significant step

in waste

reduction.

Third,

we will delay the

effective date

of the

rule

one month,

from December

1,

1991 to

January

1,

1992.

This

very

short

delay

will

allow

for

the

completion of the rulemaking process and a short “phase—in period”

after final adoption of the rule.

As we stated in our first notice opinion, the Board recognizes

that the recycled paper requirement will cause some inconvenience

to those practicing before the Board, especially in the beginning.

However, the Board believes that the important public policy goals,

as

articulated by the

Illinois General Assembly and the United

States Congress, of encouraging recycling and stimulating markets

outweigh any inconvenience.

ORDER

The Board hereby proposes the following amendment for second

notice.

The amendment is to be filed with the Joint Committee on

Administrative Rules.

TITLE 35:

ENVIRONMENTAL PROTECTION

SUBTITLE A:

GENERAL PROVISIONS

CHAPTER I:

POLLUTION CONTROL BOARD

PART 101

GENERAL RULES

Section 101.103

Form of Documents

a)

Documents

shall clearly show the title

of the proceeding in

which they are

filed.

Appendix A of this Part sets

forth

examples of proper captions.

Documents shall bear a heading

which clearly describes the nature of the relief sought, such

as, but not limited to “Petition for Amendment to Regulation”,

“Complaint”, “Petition for Variance”,

“Petition for Review”,

“Motion”,

or “Public Comment”.

b)

Except as otherwise provided, the original and nine (9) copies

of

all documents shall

be

filed with the

Clerk.

Only the

original

and

four

(4)

copies

of

any

discovery

motion,

deposition,

interrogatory,

answer

to

interrogatory,

or

subpoena need be filed with the Clerk.

126—223

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6

c)

After the filing of the initial document in a proceeding,

all

filings,

including exhibits,

shall

include the Board docket

number for the proceeding in which the item is to be filed.

If the filing is a document, the docket number shall appear

on the first page of the filing.

For filings which are not

documents, the docket number shall appear on a readily visible

portion of the filing.

d)

Documents,

excluding

exhibits,

shall

be

typewritten

or

reproduced

from

typewritten

copy

and

double—spaced

on

unglazed, uncoated white paper of greater than 12 pound weight

and measuring 8” x

10 1/2”

or

8

1/2” x

11”.

Reproductions

may be made by any process that produces legible black-on-

white copies.

All documents shall

be

fastened on the left

side

or in the upper left corner.

The left margin of each

page shall be at least

1

1/2 inches and the right margin at

least

one

inch,

As

of

January

1

1992,

all

documents,

excluding exhibits,

filed with the Board by attorneys or by

organized environmental and trade groups shall be submitted

on recycled paper.

For purposes of this Section, “recycled

paper” means paper which contains at least 40

postconsumer

material.

The definition of “postconsumer material”

is set

forth

in Section 3(f)

of the Illinois Solid Waste Management

Act

(Il1.Rev.Stat.

1989,

ch.

111

1/2, par. 7053(f)).

Either

the certificate or proof

of service or the notice of filing

accompanying all documents filed by attorneys or by organized

environmental or

trade

groups

shall

state

“THIS

FILING

IS

SUBMITTED ON RECYCLED PAPER”.

This statement shall

be made

at the bottom of the first page of the certificate or proof

of

service,

or the notice

of

filing.

This recycled paper

requirement does not apply to stationery, such as letterhead,

when

used

for

cover

letters

or

similar

purposes.

Additionally, the Board encourages all participants to double-

side copies of documents filed with the Board.

e)

The

requirements

of

subsections

(b),

(c),

and

(d)

may be

waived by the Board upon written request.

A request

for a

filing waiver shall be presented to the Board in the form of

a motion accompanied by affidavits necessary to verify

any

factual

assertions contained

in the motion.

If the Board

finds

that

compliance with

the

filing

requirements

would

impose an undue burden, the Board will grant the motion.

f)

Exhibits, where possible,

shall be reduced to conform to the

size

requirements

of

subsection

(d).

However,

one non-

conforming copy may be filed with the Clerk’s office.

g)

The original of each document filed shall be signed by the

party or by its authorized representative or attorney.

All

documents shall bear the business address and telephone number

of

the

attorney

filing

the document,

or

of

the party who

126—2 24

---

7

appears on his or her own behalf.

The Clerk will refuse to

accept for filing any document which does not comply with this

subsection.

h)

Except as otherwise provided by Sections

1 through

4 of “AN

ACT in relation to the reproduction of public records on film

and the destruction of records so reproduced”

(Ill.Rev.Stat.

1987,

ch.

116,

pars.

35—38,

or

by

leave

of

the

Board,

documents on microfiche are not acceptable for filing.

(Source:

Amended at

15 Ill.Reg.

______________,

effective

IT IS SO ORDERED.

I, Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that th~above Opinion and Order was adopted

on

the

/~‘?~-

day

of

~

,

1991,

by

a

vote

of

70

.

/

/2~.

Dorothy M.,4ünn,

Clerk

Illinois P~1~1ution

Control Board

126—225