ILLINOIS POLLUTION CONTROL BOARD
June 6,
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.
FIRST 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.Adni.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)
(Il1.Rev.Stat.1989,
ch.
111
1/2,
par.
1026),
the
Board
need
not
hold a hearing on procedural rulemakings, except as required by the
Illinois
Administrative
Procedure
Act
(APA)
(Ill.Rev.Stat.
1989,
ch.
127, par. 1001 ~
seq.).
No hearing has been held.
Proposal
BPI is a public interest law organization which provides legal
representation to civic, consumer, environmental, and neighborhood
organizations on
a broad range of issues.
BPI has
a particular
interest
in
the development
and
implementation
of
state
laws,
regulations,
policies, and programs to encourage recycling and to
improve solid waste management.
BPI has appeared before the Board
in several proceedings
involving hazardous waste management and
groundwater
protection
issues.
BPI proposes that the Board
amend
its procedural
rules
to
require that all documents filed with the Board by attorneys be
submitted on recycled paper.
In the alternative, BPI asks that the
Board amend its rules to encourage the use of recycled paper.
BPI
contends
that
requiring
the
use
of recycled paper is consistent
with
state
and
federal
public
policies
to
increase
the
use
of
recycled paper,
increase recycling of waste material and reduce
the
solid
waste
stream.
BPI
notes
that
the
Illinois
General
Assembly
has
enacted
legislation
to
promote
recycling
and
stimulate
recycling
markets,
minimize
the
volume
of
solid
waste
streams,
encourage
state
governmental, agencies
to
develop
solid
waste
123—67
2
management programs, and maximize state government’s purchase of
recyOled
paper
products.
(Ill.Rev.Stat.
1989,
ch.
85,
pars.
5954(a),
5956;
Ill.Rev.Stat.1989,
ch.
lii
1/2,
pars.
7052(b),
7053(c-e).)
The
United
States
Congress
has
enacted
similar
provisions.
(42 U.S.C.
SS 6901,
6941,
6962.)
BPI maintains that
requiring the use of recycled paper would have a significant direct
impact in helping to advance these state and federal policies.
BPI
notes
that attorneys use massive amounts
of
office paper.
BPI
argues
that
the
proposed
amendment
would
stimulate
recycling
markets,
reduce
the
state’s
solid
waste
stream,
and
preserve
natural
resources
that
are
consumed
in
producing
new
paper.
BPI
also
contends
that
increased
use
of
recycled
paper
is
both
feasible
and
cost—effective.
BPI
states
that
recycled
paper
is
of
comparable
quality
to
non-recycled
paper,
and
is
widely
distributed
and
used
in
Illinois.
BPI
maintains
that
the
supply
of
recycled
paper
is
already
adequate
and
dependable,
and
can
expand
to
meet
rising
demand
from
the
legal
profession.
Additionally, BPI notes
that
it
uses
recycled
paper
for
all
its
legal
work,
and
that
recycled
paper
is
used
for
all
photocopying
purposes.
BPI
submits
that
it
does
not
know
of
any
difficulties
which result from using
recycled
paper
in
photocopiers.
BPI
also
states
that
recycled
paper
is
available
at
prices
that
are
generally competitive with
prices
of
non—recycled
paper.
BPI has submitted several affidavits
in
support
of
these
statements,
and
lists’ of suppliers and price
quotes
for
recycled
paper.
(Ex.
C,
E,
and
F
to
proposal.)
Based
upon
the
current
supply
and
costs,
BPI
submits
that
a
rule
requiring
the
use
of
recycled
paper
would
not
impose
any
significant inconvenience or financial burden.
BPI
notes
that
the
Supreme Court of Illinois has amended its Rules of Practice to
encourage
all
attorneys
to
use
recycled
paper
for
documents filed
in
the
Illinois
courts.
BPI
argues
that
the
Board
has
authority,
pursuant
to
Sections
5(b)
and
26
of
the
Act
and
Sections
4
and
5.01
of
the
APA,
to
require
that
recycled
paper be used for all documents filed with
the
Board.
BPI
notes
that
the
Board’s
procedural rules already
regulate
the
paper
quality required for documents filed with the
Board,,
as
well
as
paper
and
margin
sizes.
(35
Ill.Adin.Code
101.103(d).)
BPI
contends
that
requiring the use of recycled paper
would
accomplish
the
purposes
of
the
Act
by
“encouraging
the
recycling
and
reuse
of
materials
such
as
paper
and
paperboard.”
(Section
20(c)
of
the
Act.)
As
to
the
more
practical aspects of the proposal, BPI proposes
that
for
purposes of the proposed rules,
“recycled paper”, should
mean
paper
at
least
40
of
which
is
composed of material that has
served
or
is
unsuitable
for
its
original
or
intended
use
and
that
has
been
discarded
for
recycling
or
disposal.
BPI
states
that
this
definition
is
derived from the Illinois Solid Waste Management Act,
IllRev.Stat.l989,
ch
111
1/2,
par.
7053(f),
which
setsforth
the
40
standard
and
gives
a
technical
description
of
“recycled
123—68
3
material”.
BPI alleges that paper suppliers are familiar with the
technical definition,
and that attorneys should be able to simply
ask their
suppliers
to
provide
“recycled
paper”
that meets
the
state standards.
BPI also contends that its proposed language for
the
rule
provides
a
way
for
the
Board
to
monitor
compliance
with
the recycled paper requirement, since attorneys would be instructed
to
include
a
statement
in
their
notice
of
filing
or
certificate
of
service
stating whether the filing
is on recycled paper.
BPI
maintains that documents which do not comply with the proposed rule
should not be accepted by the Clerk for filing.
BPI states that
unless
the
sanction
for
noncompliance
is
the
refusal
of
the
document,
the
effectiveness
of
the
rule
would
be
greatly
undermined.
Finally, in response to a question from the Board, BPI
proposes
that the scope
of the proposal be expanded to
include
organized
environmental
and
trade
groups
appearing
before
the
Board, whether or not those groups are represented by attorneys.
Public
Comments
The
Board
received
a
number
of
public
comments
on
this
proposal.
The comments are divided between those who support BPI’s
proposal
that
attorneys
and
organized
environmental
and
trade
groups
be
required
to
use
recycled
paper
for
Board
filings,
and
those
who
believe
that
the
use
of
recycled
paper
should
be
encouraged by the Board,
but not required.
The Illinois Environmental Regulatory Group
(IERG)
(P.C.
1)
and the law
firms
of
Chapman
and
Cutler
(P.C.
6)
and
McDermott,
Will,
and Emery
(P.C.
7) urge the Board not to adopt a mandatory
recycled paper rule,
but to encourage the use of recycled paper.
The concerns articulated by these commenters range from the cost
differential
of
recycled
versus
non—recycled
paper’,
to
the
availability of a consistent supply of high-quality recycled paper
which
works
in
all
copy
machines,
to
the
practicability
of
a
mandatory
requirement.
Additionally,
IERG
raises
questions
about
a
lack
of
full
public
access
to
the
Board
if
a
mandatory
requirement
is
imposed.
IERG
contends
that
recycled
paper
is
not
universally available,
so that some participants may be barred from
filing documents with the Board.
Chapman and Cutler asserts that
a large law office would have to purchase,
store, and maintain two
separate
stocks
of
paper,
recycled
and
non—recycled,
so
that
filings with the Board would be on recycled paper while other court
filings’ would be submitted on non—recycled paper.
These three
coinmenters
also
question
what
sanctions
would
be
feasible
if
the
Board
were
to
adopt
a
mandatory
requirement.
In
sum,
these
conimenters ask that the Board follow the lead of the Supreme Court
of Illinois and amend its rules to encourage, but not require,
the
IERG states
that recycled paper suitable
for use
in
its
photocopier wo~idcost
20
tu
47
more than non—recycled
paper,
while
Chapman
and
Cutler
estimate
a
5
to
10
cost
increase.
123—69
4
use of recycled paper.
On the other hand,
the Sierra Club
(P.C.
2), the Department
of
Energy
and
Natural
Resources
(ENR)
(P.C.
3),
the
Illinois
Environmental
Protection
Agency
(Agency)
(P.C.
4),
the McHenry
County Defenders (P.C.
5), Citizens for a Better Environment
(P.C.
8),
and the law firm of Gardner,
Carton,
and Douglas
(P.C.
10)
recommend that the Board adopt a rule requiring the use of recycled
paper in Board filings by attorneys and organized environmental.and
trade groups.
Several of the commenters state that they already
use recycled paper
in their work,
and that there are sufficient
quantities of high-quality recycled paper available at a reasonable
cost.
The McHenry County Defenders state that the lack of strong
inaricets for recycled paper has made it difficult for the Defenders
to cover the costs of their recycling programs, and maintain that
efforts to stimulate the recycled paper market should improve the
viability
of
recycling
efforts.
Gardner,
Carton,
and
Douglas
contends that neither the cost of recycled paper nor the quality
of the paper would
impose
an unreasonable burden,
and that any
increased
cost
would
be
offset
by
the
“lau~1able” goals
of
encouraging recycling and promoting conservation.
ENR states that
although the price of recycled paper varies, recycled xerographic
paper may be priced from 2 to 10
higher than non-recycled paper.
ENR
states
that the
price
difference
between
non—recycled
and
recycled xerographic and bond paper purchased by the state is only
2.
ENR also maintains that the quality
of
recycled paper
is
comparable to non-recycled paper.
In support of this statement,
ENR
included
the
results
of
a
test
conducted
by
51
local
governments
using
recycled
xerographic
paper,
and
material
indicating that recycled paper producers meet the same technical
specifications as producers of non—recycled paper.
(Attachments
III and IV to P.C. 2.)
The Agency states that it strongly supports
the
mandatory use of
recycled paper
in
Board
filings,
to help
reduce
the
amount
of
paper
waste
generated and to aid
in the
expansion of markets for recycled paper.
Additionally,
BPI
filed
comments expanding upon the
issues
raised by its proposal
(P.C.
9).
First, BPI argues that although
IERG and McDermott, Will,
and Emery suggest that recycled paper is
significantly more costly, the 20-47
price differential quoted is
not credible.
BPI points to ENR’s comments, concluding that the
price differential is about 2.
Second, BPI contends that there
is
widespread
support
among attorneys
for
the required use
of
recycled paper, and points to previous, support of the Chicago Bar
Association and the Chicago Council of Lawyers for mandatory use
of recycled paper.
Board Conclusions
2
Gardner
estimates
that
recycled
photocopy
paper
costs
approximately 4
more than non-recycled photocopy paper.
123—70
5
After
careful
consideration
of
BPI’s
rulemaking
proposal
and
the
public
comments
received,
the
Board
proposes,
for
first
notice,
amending
its
procedural
rules
to
require
all
documents
filed
with
the Board by attorneys and organized environmental and trade groups
to
be
on
recycled
paper.
The
record
of
this
proceeding
contains
conflicting statements as to the availability and cost of recycled
paper.
However, the only actual figures provided (by BPI and ENR)
support the conclusion that the increased cost of recycled paper
is
minimal.
The
information
provided
by
BPI
and
ENR
also supports
the
conclusion
that
recycled
paper
is
available.
The
Board
disagrees with
IERG’s
assertion that a recycled paper requirement
could lead to
a situation where some participants are unable to
file documents with the Board.
The Board believes that the large
majority
of
those
covered
by
this
rule
(attorneys
and
organized
environmental and trade groups)
will be able to obtain recycled
paper
with
little
extra
effort.
The
Board
also
notes
that
Section
101.103(e)
specifically provides that the Board may waive any of
the requirements
for form of documents upon motion demonstrating
that
the
particular
requirement
would
impose
an
undue
burden.
Thus, any participant covered by the proposed rule who truly could
not comply with the recycled paper requirement could move for
a
waiver.
The Board finds that this proposed rule will not restrict
public access to the Board.
The Board recognizes that the recycled paper requirement will
cause
some
inconvenience to those practicing before
the
Board,
especially in the beginning.3
However, the Board believes that the
important goals of encouraging recycling and stimulating markets
outweigh any inconvenience.
The Illinois General Assembly and the
United States Congress have stated, through legislation, that the
promotion of recycling and the stimulation of markets for recycled
products are public policy goals.
The Board finds that requiring
attorneys
and
organized
trade and
environmental
groups
to
use
recycled paper will make
a contribution towards achieving those
goals.
The comments
contained a
fair amount
of discussion
on
the
question
of what
sanctions
should be
imposed
for a failure
to
comply
with
a
mandatory
recycled
paper
rule.
BPI
and
some
coinmenters state
that the Clerk should refuse to accept filings
which are not on recycled paper,
while other commenters believe
that
this sanction
is
too
harsh,
However,
the
Board
will not
The Board is puzzled by Chapman and Cutler’s assertion that
a recycled paper requirement would require law offices to purchase,
store,
and use two separate stocks of
paper.
(P.C.
6
at 2—3.)
Recycled paper is encouraged
in the courts,
and no coinmenter has
alleged that recycled paper is unacceptable in transactional work.
Therefore,
the Board
believes that the
logical step
is
a
full
transition
to
recycled
paper.
123—7 1
6
establish
special
sanctions
for
violation
of
this
proposed
rule.
The
Board
believes
that
a violation
of this
proposed rule
is
subject
to
sanctions
under Section
101.280,
just as
any other
violation
of
the
Board’s
procedural
rules.
Sanctions
can
be
imposed on the Board’s
own
motion or on motion of another party.
BPI proposed that this rule become effective on March 1, 1991,
while another commenter suggested a June 1, 1991 date,
in order to
give participants an opportunity to use their
current stocks of
paper.
Neither of these suggested dates allow for the notice and
comment periods required for rulemakings
(such as this)
conducted
under the
APA.
Therefore, the Board will propose an effective date
of December
1,
1991.
This date will allow the Board to complete
the
rulemaking
process
required
by
the
APA,
and
will
give
participants several months after
final adoption of the rule to
exhaust paper stocks.
The Board believes that giving participants
almost six months’
notice before the recycled paper
requirement
becomes
effective
will
result
in
fewer
problems
in
the
implementation of the rule.
Finally, the Board notes that ENR stated in its comments that
an updated list of suppliers of recycled paper would probably be
available in February.
The Board asks ENR to submit that supplier
list during the first notice comment period.
ORDER
The Board hereby directs the Clerk of the Board to cause first
notice
publication
in
the
Illinois
Register
of
the
following
amendment to the Board’s procedural 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
123—72
7
subpoena
need
be
filed
with
the
Clerk.
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 December 1,
1991.
all documents 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
~ostconsumer material.
The definition
of “~ostconsuinermaterial” is set forth in Section 3(f) of the
Illinois Solid Waste Manaaement Act
(I1l.Rev.Stat.
1989.
ch.
111 1/2,
par.
7053(f).
Either the certificate
or proof
of
service or the notice of
filing accompanyin~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.
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
appears on his or her own behalf.
The Clerk will refuse to
accept for filing any documefit ~hich does not comply with this
subsection.
123—73
8
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, her~b~gertifythat t
bove Opinion and Order was adopted
on
the
(~~1—
day
of
_______________,
1991,
by
a
vote
of
7—o
.
/7
~
./~.
___
.lution
Control
Board
123—74
