ILLINOIS POLLUTION CONTROL BOARD

September

22,

1988

IN THE MATTER OF:

)

PROCEDURAL

RULES REVISION,

)

35 ILL.

ADM. CODE

101,

102,

)

R88—5

106,

and 107

)

PROPOSED RULE.

FIRST NOTICE.

PROPOSED OPINION OF THE BOARD

(by J. Theodore Meyer):

SUMMARY

On September

8,

1988,

the Board proposed for first notice

revisions

of some of

its procedural

rules.

This Proposed Opinion

supports those proposed rules.

This docket

(R88—5) includes revisions

to Parts

101,

102,

106,

and

107 of

the Board’s procedural

rules.

Specifically, the

Board has proposed new general

rules

(35

Ill.

Adm.

Code 101),

new

rules governing regulatory proceedings

(35 Ill.

Adm.

Code 102),

and new rules

for adjusted standards proceedings

(35

Ill.

Adm.

Code

106).

After consultation with the Administrative Code Unit,

the Board has determined

that the most

efficient way

to revise

the existing

rules and add new provisions

is

to repeal

the

existing Parts and propose new Parts,

at

the same Part number,

covering the same subject matter.

Thus,

in its September

8, 1988

order,

the Board proposed

repeal of existing Part 101 (general

rules),

Part

102 (regulatory proceedings), and Part 107

(sanctions).

At

the same time,

the Board proposed new Parts 101

(general rules) and 102

(regulatory proceedings).

Please note

that rules

pertaining

to sanctions,

currently

in Part 107, have

been added

to the new Part 101 general

rules.

TheBoard has

proposed repeal of Part

107, which will be left open

for -two

years,

as

is required by

1 Ill.

Adm.

Code 100.315.

New rules

implementing general adjusted standards proceedings have been

proposed

as new subpart G in Part 106.

The existing rules

in

Part 106 have been changed only

to update references

to Parts

101

and

102.

Many

of the new rules are proposed

in response

to SB 1834

(P.A.

85—1048)

and HB 4039

(P.A.

85—1331),

effective January

1,

1989.

This legislation changes several aspects of Board

procedures.

For example, HB 4039 establishes

filing fees for

petitions

for site—specific regulation,

variance, permit

review,

and adjusted standard pursuant

to Section

28.1

of the

Environmental Protection

(Act)

(Ill.

Rev.

Stat.

1987,

ch.

111 1/2

par.

1028.1),

and for petitions

to review local government siting

decisions pursuant to Section 40.1

of the Act.

The Board has

proposed rules

in Part

101 which establish procedures for

those

filing fees.

92—57 5

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—2—

Additionally,

SB 1834 makes

some fundamental changes

to the

environmental rulemaking system

in Illinois.

Among other things,

SB 1834 authorizes the Board

to determine whether

an economic

impact study

(EcIS)

should be prepared by the Department of

Energy and Natural Resources

(ENR).

This legislation also allows

for

a pre—hearing conference

in rulemakings,

to the extent

consistent with deadlines

for adoption of

regulations mandated by

state or

federal

law.

Further,

SB

1834 expands the adjusted

standards provision of Section 28.1 of the Act.

The Board

believes that

its proposed rules will fully implement

the

provisions of

SB 1834 and HB 4039.

The Board has also reorganized and tightened its existing

rules.

Some regulations have been added in order

to update the

procedural rules consistent with

the Board’s

current practices.

In sum,

the Board

feels that the proposed rules will implement

new legislative action and will streamline

the regulatory and

adjusted standards procedures without undermining

the quality and

integrity of those procedures or infringing upon public

participation

in the regulatory and adjusted standards processes.

This Proposed Opinion will

touch upon each Subpart

in the

proposed rules,

but will discuss only those

rules which are new

and/or upon which the Board requests comment.

Please note that

capitalization within the rules

themselves denotes actual

or

paraphrased statutory language.

As noted

in the Board’s order

of September 8,

1988,

in

preparing this draft

the Board has considered comments filed by

participants

in predecessor dockets R82—27,

R82—36, and R83—37,

as well as comments filed

in response

to the Board RES88—1.

(The

Board

is amending RES88—l

in

a separate action today.)

The Board

again emphasizes that participants are free

to reiterate any

previous comments which they may feel have not been fully

addressed,

regardless

of whether

the Board has specifically

requested comments concerning any particular ~ectiqn.

PART 101

-

GENERAL RULES

Subpart A:

General Provisions

This Subpart sets out some of

the basic requirements

and

procedures

for

all Board proceedings.

Section 101.100

“Applicability” tracks

the old rule

in stating that Part 101

is

applicable

to all proceedings conducted by the Board,

and

clarifies that Part 101

is

to be read

in conjunction with the

Board’s other procedural

rules

in

35 Ill. Adm. Code 102 through

120.

Section 101.100 also states

the current fact that the Code

of Civil Procedure

(Ill.

Rev.

Stat.

1987,

ch.

110, par.

1—101

et

seq.

)

does not apply to Board proceedings unless expressly

stated.

Section 101.102 “Filing

of Documents” updates

the existing

rule with

the Board’s correct Chicago address,

and sets out that

92—576

---

—3—

filing of documents with the Clerk may

be done by certified,

registered,

or First Class mail,

by messenger service,

or

personally at the Board’s Chicago office.

Filing by electronic

transmission,

such as telefax machine

or computer modem,

is

prohibited, unless

the Board specifically requests such

a

filing.

While

the Board

is aware

that some court systems are

experimenting with electronic filing,

the Board’s staffing levels

cannot presently accommodate

such experimentation.

This

prohibition allows for better recordkeeping and tracking of filed

documents,

since

all

filings will be accepted

at one central

point,

at the receptionist’s desk.

Section 101.102 also changes current practice by providing

that filing,

inspection,

and copying

of documents may be done in

the Clerk’s office from 8:30 a.m.

to 4:30 p.m.,

instead of until

5:00 p.m.

This change allows staff

to complete the duties

associated with filing and inspection before the Board’s offices

close.

Board offices will continue

to be open until

5:00 p.m.

for phone

calls,

etc.

“Form of Documents”,

Section 101.103, basically tracks

the

existing

rule

in areas such as number

of copies

to be filed and

the form of all filed documents.

Subsection

(e)

allows for

waiver

of some of the requirements

if the Board

finds, upon

motion,

that compliance with the requirements would

impose an

undue burden.

Subsection

(g) requires that all original

documents be signed by the person filing

the document and include

that person’s business address and telephone number.

All copies

must be made from the signed original,

to aid

in determining

compliance with these requirements.

The Clerk will refuse

to

accept for filing any document which does not comply with

subsection

(g).

Finally, subsection

(i)

allows the Clerk

to

refer

all

filings which do not comply with

the other

requirements

of Section 101.103

to the Board

for

review.

Section 101.104

sets limits on the length~ofbriefs

w.hich

may be filed

in Board proceedings without prior approval;- the

Board has become increasingly burdened with excessively

lengthy

pleadings.

Briefs

in support of or

in opposition

to any motion

are limited

to 15 pages.

Post—hearing briefs, briefs submitted

in response

to

a Board order,

and public comments submitted

in

lieu of

a brief are limited

to 50 pages,

and reply briefs shall

not exceed

25 pages.

This rule

is based upon Rule 28 of the

Federal Rules

of Appellate Procedure.

The page limits do not

include appendixes containing regulations, cases,

and other

relevant material.

Section 101.105 “Waivers” and Section 101.106 “Incorporation

of Prior Proceedings” merely codify

the Board’s current

practices.

The waiver section now specifies that all waivers of

a deadline for Board action shall

be filed as

a separate

document.

This will enable

the Clerk

to better monitor these

waivers,

instead of having

to read every document filed

in search

of

a waiver.

Section 101.106(a) establishes procedures

and

92—57 7

---

—4—

standards for incorporations of another Board

record.

Section

101.106(b) articulates the weight the Board gives materials

from

another Board docket incorporated into

a pending proceeding.

“Appearances and Withdrawals”, Section 101.107, expands the

current rule on appearances

to additionally specify that an

attorney who has appeared

in

a representative capacity and who

wishes to withdraw must file a notice of withdrawal with the

Clerk,

and serve

all other participants.

Section 101.108

“Substitution of Attorneys” requires any attorney who substitutes

for an attorney

of record file

a written appearance,

and identify

the attorney for whom the substitution

is made.

These two

sections will enable Board staff

to more easily keep track

of who

represents

a particular person

in a Board proceeding.

Section 101.109

“Computation of Time” has been changed

to

provide that computation of any period of time prescribed by rule

or the Act begins on the next calendar

day.

The rule formerly

stated that computation of time begins on the next business

day.

This charge was made

to conform the rule to the statutory

mandate of

Section 1.11 of

“An Act to revise

the law

in relation

to the construction

of statutes.”

(Ill.

Rev.

Stat.

1987,

ch.

1,

par.

1012.)

The Board intends

to add

a severability clause to this

Subpart.

The proposed language of that clause

is:

If any provision of

these

rules or

regulations

is adjudged invalid, or

if the application

thereof

to any person or

in any circumstance

is adjudged invalid, such invalidity shall not

affect the validity of

this Part

as

a whole or

of any Subpart,

Section,

subsection, sentence

or clause thereof not adjudged

invalid.

Subpart

B:

Filing and Photocopying Fees

Section 101.120 implements the new filing fee provisions of

RB 4039.

These provisions will

be found

at Section 7.2 of the

Act after

the January

1,

1989 effective date of HB 4039.

The

rule requires that

.a person filing

an action for which

a filing

fee

is required by the Act

(petitions

for site—specific

regulation,

variance,

review of

a permit,

to contest

a local

government siting decision, and

for adjusted standard) must pay

that fee at the time

the petition

is presented

to the Clerk

for

filing.

The Clerk will refuse

to accept any petition which

is

not accompanied by the required

fee.

At this

time,

the fee

is

statutorily set at

$75.

Section 101.121 “Photocopying Fees” codifies current Board

practice concerning

fees

for copying of Board

files

and

records.

Most

of this rule is currently contained

in existing

Section 101.107(f)

“Public Information”.

The rule was separated

from the public information section for organizational purposes.

92—578

---

—5—

“Forms

of Payment”, Section 101.122, specifies the form

in

which filing and photocopying fees shall

be paid.

Filing fees

may

be paid by cashier’s check,

or check drawn on an attorney’s

account.

Photocopying fees may be paid

in any

of these ways,

and

also by personal check.

By specifying methods

of payment other

than cash,

the Board will avoid having

to keep a petty cash fund

for fees,

thus simplifying administrative matters.

Subpart

C:

Service

This Subpart

is new to Part 101, but these rules simply

articulate current Board practice for service

of filings.

The

substance of the rules

in Subpart

C

is currently found

in 35

Ill.

Adm. Code 103, which d3als with enforcement cases.

In the past

there has sometimes been dispute over whether the enforcement

rules

in Part 103 apply

to other

types of proceedings.

By

placing service

rules

in Part 101, which applies

to all Board

proceedings,

there will be no question that these

rules are

applicable to all proceedings.

Sections 101.140

through 101.144

cover

service of initial and subsequent filings, proof of

service,

and effective date of service.

Subpart D:

Public Information

This Subpart covers public information,

nori—disclosable

information,

and Board publications.

The substance

of these

rules

is basically the same as existing Sections 101.107 and

101.108,

but the text has been reorganized

and divided

into three

separate sections.

One change from the existing rules

is that

proposed Section 101.161(c)

sets forth who may examine material

which is claimed

to be not subject

to disclosure.

Under the

existing rules,

only Board members are authorized

to view such

material.

The proposed rule tracks

the Board’s February

6,

1986

resolution (RES

86—2)

dealing with who may have access

to trade

secret material.

Under

the proposed rule, material

for non-

disclosure will be available only

to Board members,. Board

assistants,

environmental scientists of the Board’s

Scientific/Technical Section,

the assigned hearing officer,

the

Clerk,

and the Assistant Clerk.

By articulating

in the rule

specifically who may examine material

for non—disclosure,

the

filing

and decision of non—disclosure claims,

and cases involving

non—disclosable material, will

be much easier administratively.

Carried

to its logical extreme,

the existing rule might require

that

a Board

member, rather

than the Clerk or Assistant Clerk,

literally file the documents.

Please note that as

is currently provided, there

are four

types

of information

in terms

of that information’s availability

to the public.

Proposed Section 101.160 states that all files

maintained by the Clerk will be open

to reasonable public

inspection,

except:

1)

internal communications between and

among Board members and staff;

(2) trade secret material pursuant

to Section 7.1

of

the Act and 35

Ill..

Adm. Code 120;

and

3)

material which

is stamped

“Not Subject

to Disclosure by Board

92—579

---

—6—

order, pursuant

to Section

7 of the Act and proposed Section

101.161.

Subpart

E:

Board Meetings

Section 101.180 “Board Meetings” includes

the substances of

the existing rule on Board meetings.

Some things have been

updated,

such as providing that four Board members constitutes

a

quorum,

since

the Board now has seven members

instead of

five.

The rule also articulates current Board practice that oral

argument

is not heard at Board meetings unless specifically

requested by the Board.

New Section 101.181 states that no document received by the

Clerk after 4:30 p.m.

two days before

a scheduled Board meeting

will be placed on the agenda

for that meeting.

Instead,

any such

filing will appear on the agenda

for

the next regularly scheduled

Board meeting.

The Board will make exception to this rule only

when it finds

that undue

delay or material prejudice will

result.

The purpose of this deadline

is

to allow Board members

and staff

at least one day

to review all filings before any

action

is taken.

Subpart F:

Ex Parte Contacts

Section 101.200 sets

forth prohibitions on ex parte contacts

on contested and non—contested cases.

(A contested case

is

defined in Section 101.101

as “an adjudicatory proceeding,

riot

including regulatory,

quasi—legislative,

informational, or

similar proceedings.”)

The section

is substantially similar

to

the existing section on

ex parte contacts.

Some wording

changes

have been made, such

as clarifying

the fact that ex parte

communications in contested cases are prohibited only with

respect to the substance of the proceeding.

Subsection

(c) has

been added

to specifically state that this section does not

preclude Board members, hearing officers, and~Board staff from

receiving informal complaints

about individual pollution -sources,

or forbid administrative contacts on

a pending proceeding.

Subpart G:

Hearings

“Authority

of Hearing Officer”,

Section 101.220,

is

an

addition to Part

101 general rules.

The proposed

rule is based

upon the current section on authority of hearing officers in

regulatory proceedings.

(35 111. Adm. Code 102.160.)

Several

specific areas of authority have been added

to the list,

although

the list

is merely an example of a hearing officer’s powers and

does not

limit

those powers.

For example,

the proposed section

now specifically states

that

a hearing officer has the power

to

issue interrogatories and subpoenas.

There has previously been

some dispute over whether

a hearing officer must be directed by

Board order

to issue subpoenas and

interrogatories,

or whether

he

or she had the

inherent authority to do

so without Board

direction.

The Board

today specifically states that

a hearing

92—580

---

—7—

officer does have the power

to

issue subpoenas and

interrogatories without Board direction.

Section 101.221 “Hearing Decorum”

is based upon existing

Section 101.122 “Improper Publicity”.

The provisions relating

to

recording of hearings on

tape,

film,

or other media have been

changed

to comply with Section 2.05 of the Open Meetings Act.

(Ill. Rev.

Stat.

1987,

ch.

102, par.

42.05.)

The section states

that if

a witness refuses

to testify because any portion of his

or her testimony

is

to be broadcast or televised,

or because

motion pictures are

to be taken while

the witness

is testifying,

the hearing officer will prohibit such recording during that

witness’

testimony.

The section also allows the hearing officer

to prescribe reasonable rules governing

the right

to record

the

proceedings.

Finally, participants

in Board proceedings are

required

to conduct themselves with the same degree of dignity

and respect that they would before

a court.

Subpart

H:

Motion Practice

Like Subpart

C, on service,

this Subpart has been added

to

Part 101 general rules

in order

to end any dispute over which

motion procedures apply

to what types of proceedings.

As

is

stated

in Section 101.240, this Subpart applies

to all Board

proceedings, except

to any extent that 35 Ill. Adm.

Code 102

through 120 conflict with or supplement Subpart

H.

In such a

case,

that more specific Part applies.

The individual rules

in this Subpart are based on the

current motion rules

in

35 Ill.

Adm. Code 103.

The proposed

rules set out filing and timing requirements for general motions

and more specific types of motions,

such as motions attacking

jurisdiction, motions for summary judgment,

and motions for

reconsideration.

Section 101.245 “Motions Preliminary to

Hearing”

requires that all motions preliminary

to hearing be

presented

to the Board

or the hearing officer

at least 21 days

prior

to hearing,

unless otherwise allowed by the Board or

the

hearing officer

to prevent material prejudice.

The section

allows the Board or the hearing officer

to direct that the

hearing proceed during

the pendancy of the motion.

Finally,

the

section provides that no motion

to continue

a hearing

in a

proceeding with

a deadline for Board action will be granted

unless the motion

is accompanied by

a waiver

of that decision

deadline.

The provisions of this section are designed

to aid the

Board

in seeing that proceedings move forward, and

to avoid any

possible “time crunch” between a hearing

in

a deadline proceeding

and the date for decision of that proceeding.

“Disposition of Motion”,

Section 101.247, sets forth

the

types of motions on which a hearing officer may rule.

This

section also establishes

the fact that no interlocutory appeal

of

a hearing officer ruling may be taken

to the Board unless the

Board grants

a motion

to do so.

The hearing officer may also

refer

a

ruling

to the Board

if he or she feels that such action

92—581

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—8—

is necessary

to prevent harm to the public

interest

or to avoid

unusual delay or expense.

A continuing objection to

a hearing

officer ruling may be raised at the close of hearing and

in post—

hearing submissions.

Subsection

(c) provides that all hearing

officer orders remain

in effect during

the pendancy of any appeal

to the Board.

The filing of a motion,

or any related appeal of

the ruling on that motion,

shall not stay the proceeding or

extend the time for the performance of any act.

Again,

the

provisions allow the Board

to ensure that proceedings move

forward at a reasonable pace.

Subpart

I:

Discovery

This Subpart has also been placed

in Part 101 general

rules

to clarify that these procedures are applicable

to all

proceedings before the Board.

Section 101.260 “Subpoenas”

is

based upon existing

35 Ill.

Adm. Code 103.163.

The Board

solicits comments on whether

it has authority to order payment of

a subpoenaed witness’s expenses where

the witness is an Illinois

resident.

(See Section 101.260(b).)

“Production of

information”,

found

in Section 101.261, gives

the hearing officer

the authority

to order the production of information which

is

relevant to the matter under consideration.

(“Relevant”

is

defined

in Section 101.101

as that which is both related

to and

material

to the determination of the proceeding.)

The hearing

officer will regulate the production of information

to prevent

delay, expense, harassment or oppresion,

or when the information

is non—disciosable or

a trade secret.

Subpart 3:

Sanctions

Rules regarding sanctions are currently found at 35

111.

Adm. Code 107.

For consistency,

these rules have been added

to

Part 101,

and the Board proposes repeal

of

the existing Part

107.

The rules

in this Subpart cover sanctions for refusal

to

comply with procedural rules, Board orders,

and hearing officer

orders,

and sanctions

for abuse

of discovery procedures.

These

proposed rules

track

the language

of existing Part 107, but have

been reorganized.

The Board specifically solicits comments on

its statutory authority to order

an offending person to pay

another’s reasonable expenses incurred in obtaining

an order

of

sanctions.

(See Section 101.280(g).)

Subpart

K:

Relief from and Review of Final Orders

Again,

this Subpart has been added

to Part 101

in order

to

clarify that these procedures for relief from and review of final

orders are applicable

to all Board proceedings.

Section 101.300

“Relief From Final Orders”

is almost

identical

to existing

35

Ill. Mm.

Code 103.241, with only minor language changes.

Section 101.302 “Stay Procedures” are substantially like existing

Section 101.140, with phrasing and organizational changes.

Finally,

“Interlocutory Appeals”, Section 101.103, conforms these

rules

to current Board practice.

92—582

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—9—

Appendixes

The Board has also proposed adding five appendixes

to Part

101.

The appendixes set forth forms

to be used as examples when

appearing before

the Board.

Appendix A gives examples

of

captions to be used in the various types of Board proceedings.

Appendix B gives

a sample appearance

form,

while Appendix C

is an

example of a notice of withdrawal of appearance.

Appendix D is

a

sample “notice of filing”

to be attached

to all documents filed

with the Clerk.

Finally, Appendix E

includes examples of

certificates

of service.

PART 102

-

REGULATORY

AND

INFORMATIONAL

HEARINGS AND PROCEEDINGS

Subpart

A:

General Provisions

The Act provides for

three types

of regulatory proposals:

1)

identical in substance proposals;

2)

federally required rules;

and

3)

other regulatory proposals,

both of general applicability

and not of general applicability.

Regulations arising

from these

types of proposals may be adopted

through

four types

of

rulemakings:

1)

general rulemaking;

2) emergency rulemaking;

3)

peremptory rulemaking; and 4)

temporary rulemaking.

Section

102.103

is

a “roadmap”

of these

types of proposals and

rulemakings.

Section 102.104 “Waiver of Requirements” allows the Board

to

waive any of the requirements

in Part 102 upon

a showing by any

person that

a particular requirement would create an undue burden

on that person.

This provision gives

the Board the ability

to

tailor the rulemaking system to the needs of the persons involved

in that system.

“Other Proceedings”, Section 102.105,

is almost

identical to

existing Section 102.220.

This section specifically states

that

the Board may conduct non—contested or informational hearings,

in

addition

to hearings or regulatory proposals,

as are necessary to

accomplish

the purposes of the Act.

Such hearings are

to be

conducted according- to Part 102,

to the extent applicable.

This

section

is based upon the authority of Section 5(d)

of the Act.

The Board intends

to add

a severability section

to this

Subpart identical

to the language proposed

in Part 101.

Subpart

B:

Proposal

of Regulations of General Applicability

This Subpart

is based upon existing Subpart

B,

but has been

greatly expanded and reorganized.

The Subpart

is

a guide

to the

filing

of a sufficient proposal

of regulations of general

applicability.

Section 102.120 provides that any person may

file

a regulatory proposal.

Ten copies of each proposal are

to be

filed with the Clerk,

and one copy each with the Attorney

92—583

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—10—

General,

the Agency and ENR.

By receiving

a copy of each

proposal as

it

is filed,

these agencies will be better able

to

monitor

and participate

in the rulemaking process.

Section 102.121 sets forth the required contents of

a

regulatory proposal.

Each proposal must include the language of

the proposed regulation or amendment,

including an identification

of the existing regulatory language proposed

to

be amended

or

deleted.

A statement of the reasons supporting

the proposal

shall accompany the proposal.

In order

to implement the new EcIS

determination procedures of SB

1834,

a proponent must also

recommend whether an EcIS

is advisable.

This recommendation

is

to describe the universe

of affected sources and facilities,

and

the economic

impact of the

rule.

The recommendation shall also

address the questions raised

in the “Analysis of Economic and

Budgetary Effects of Proposed Rulemaking”,

set forth

at

1

Ill.

Adm. Code 220, Exhibit B.

This form

is often requested by the

Joint Committee on Administrative Rules

(JCAR)

as one of the

components necessary for

a proposed rule

to be accepted by JCAR

for second notice

review.

This will ensure

that this necessary

information will be

in the record

for decision.

Additionally,

by

obtaining

this information at

the beginning

of

a proceeding,

Board staff will be able

to complete the required second notice

package more quickly and efficiently,

if the Board proposes

a

requested regulation

for adoption.

Finally,

the EcIS

recommendation must identify specific issues which

the proponent

feels should be addressed

in the study if the Board determines

that an EcIS should be done.

A regulatory proposal must also include copies

of all

testimony

to be presented by the proponent at hearing, and copies

of all exhibits and references.

The Board recognizes that this

requirement

is quite

a change from existing procedures,

but feels

that

it

is not unreasonable to expect a proponent to be able

to

locate witnesses

in support of a proposal before filing that

proposal.

However, the Board specifically requests comment

on

whether these requirements are best fulfilled by complete

testimony,

or by a simple identification of witnesses with

a

synopsis of

their expected testimony.

Copies of

all material

to

be

incorporated in

a rule by reference pursuant to Section 6.02

of the Administrative Procedure Act (APA)

(Ill.

Rev.

Stat.

1987,

ch.

127, par.

1006.02) must also accompany

a regulatory

proposal.

Finally,

the proposal must include proof of service of

the proposal upon the Attorney General, the Agency,

and ENR.

As noted

in the September

8 Order,

the Board realizes that

the proposed requirements for the filing of

a complete regulatory

proposal may appear

to

impose

a higher initial burden on

a

proponent than was the case

in the past.

The Board feels that

the new proposed requirements are reasonable expectations

of the

vast majority of regulatory proponents,

and

that the requirements

are necessary to focus and expedite the regulatory process.

In

essence,

the requirements simply mandate that

a proponent provide

necessary information “up front”,

at the beginning of

a

92—584

---

—11--

regulatory proceeding,

instead of entering that information into

the record

in

a piecemeal fashion during the course

of

a

proceeding.

Under almost

all circumstances,

the support

for

a

particular proposal should

be

in place before that proposal

is

filed with the Board.

A proposal should not be filed and then be

delayed while

the proponent builds his or her case.

The Board

did consider establishing

a procedure for an informal request for

regulation,

in which

the person making such

a request would bear

far less burden,

but did not propose that procedure for first

notice.

That procedure

is set out more completely in today’s

concurring opinion by 3.

Anderson, 3.

D. Dumelle,

and

3.

Marlin.

The Board requests comments on the advisibility of

establishing such

a procedure.

Again,

the Board points out that

Section 102.104 provides for

a waiver

of any requirement of Part

102 upon a showing that

a particular requirement imposes an undue

burden on

a person.

“Dismissal

of Proposal”,

Section 102.122, states that

failure of

a proponent

to satisfy the content requirements

of

Section 102.121 or failure

to respond

to Board requests for

additional

information will render

a proposal subject

to

dismissal

for inadequacy.

The section also allows the Board to

dismiss

a proposal where the Board finds

that the proponent has

failed

to pursue disposition of the proposal

in a timely

manner.

These provisions will enable

the Board

to manage

its

docket more effectively,

and

to enforce the requirements for

a

sufficient regulatory proposal.

Subpart

C:

Proposal

of Regulations Not of General Applicability

This Subpart is

a guide

to the filing of

a complete proposal

of

regulations not of general applicability.

A regulation not of

general applicability is one which applies

to

a specific site or

sites, geographical location, or activity.

Procedural rules

for

site—specific regulations and for site—specific regulations

pertaining

to water were proposed by the Board for

first notice

on March

5,

1987,

in R82—27, R82—36, and R83—37, Consolidated.

That proposal was published in the Illinois Register at 11 Ill.

Reg.

5018 on March

27,

1987.

However,

no further action was

taken on the proposal

before the one—year period

for adoption

passed.

This Subpart

C

is based upon that 1987 proposal,

although some additions have been made.

Like the filing requirements for proposal

of regulations of

general applicability, Section 102.140 provides that any person

may submit

a proposal

of

a regulation not of general

applicability.

Ten copies of the proposal are

to be filed with

the Clerk, and one copy each served upon the Agency, ENR, and the

Attorney General.

Section 102.141 sets out the required contents of

a

proposal.

The proposal must identify the regulations which are

to be addressed by the proposal,

and must include

a

statement of

reasons and facts supporting

the proposal.

The proposal must

92—585

---

also comply with all requirements in Section 102.121

for proposal

of regulations of general applicability.

If the proposed rule

would replace the applicability of a general

rule to the

pollution source,

the proposal shall

specify the reasons why the

general rule

is not technically feasible or economically

reasonable

for that particular pollution source.

The proposal

must also demonstrate that the Board may grant the requested

relief consistent with federal

law.

Finally, where circumstances

render any of

the required information inapplicable,

the proposal

shall

include

a

justification for the inapplicability.

The information required by Section 102.141

is detailed and

specific.

The Board does not believe, however,

that these

informational requirements are oppressive

or burdensome

to

proponents, because regulations not of general applicability

usually give proponents long—term relief from general

regulations.

Therefore, the Board’s record for decision must be

comprehensive.

The requirements will help identify the crucial

issues of

a proposal early

in the proceeding,

and thus allow for

a more efficient rulemaking process.

As

in proposal of rules of general applicability, Section

102.142

allows for dismissal of

a proposal

for inadequacy where a

proponent fails

to satisfy the content requirements or respond

to

Board requests for more information.

A proposal

is also subject

to dismissal

if the Board determines that

the proponent has

failed

to pursue disposition of the proposal in

a timely

manner.

Again,

these provisions will enable

the Board

to manage

its docket more efficiently and

to enforce the content

requirements of Section 102.141.

Subpart

D:

Contents

of Site—Specific Proposals

Pertaining

to Water

This Subpart contains specific provisions for the contents

of site—specific proposals pertaining

to water.

The rules of

this Subpart are

to be read in conjunction with,

and are

cumulative to,

the rules

in Subpart

C.

Like Subpart

C,

the bulk

of these rules were proposed by the Board for first notice

on

March

5,

1987,

in R82—27,

R82—36,

and R83—37,

Consolidated,

upon

a proposal by the Agency.

Pursuant to Subpart D, proposals

for

site—specific water regulations must include descriptions of the

facility and of the affected area,

an assessment of environmental

impact,

analysis of the proposal’s consistency with

federal

law,

and an evaluation of control options.

These proposed rules

are

very similar

to the rules proposed by the Board

in March

1987,

although there have been a few additions.

For example, Section

102.161 “Description of Facility” now requires

a list of all

prior Board proceedings concerning that facility and the specific

parameter

for which regulatory change

is sought.

This will

allow

the Board

to more easily determine if the facility

is or has been

operating under

a variance from the standard for that specific

parameter,

if there have been any enforcement cases against

the

source for

that particular parameter,

etc.

Additionally, Section

92—586

---

—13—

102.165 “Evaluation

of Control Options”

is now more specific

about the cost

information which must

be

included in the

proposal.

The Board notes that although the Agency originally proposed

these

rules

for water site—specifics,

there have not yet been

proposals for additional requirements for proposal of

air,

land,

or groundwater

site specifics,

nor do

the rules of Subpart D

apply to water

rules of general applicability.

As these

rules

were proposed

for first notice, Subparts

E,

F,

and G have been

reserved for

regulations setting content requirements for

proposal

of site—specifics pertaining

to air,

land and

groundwater.

The Board requests comments on the rules

in Subpart

D,

and on the advisibility

of adopting

these

rules

in the absence

of regulations governing

the proposal of site—specifics

in other

media.

Subpart

H:

Authorization and Notice of

Hearing

Section 102.240 “Authorization of Hearing”

is substantially

similar

to existing Section 102.121.

All regulatory proposals

will be placed on the Board agenda for determination of

the

proposal’s adequacy under

the Act and Sections 102.121 and

102.141.

Hearing will be authorized

if

the proposal meets

the

statutory criteria of Section

28 of the Act and the content

requirements of Part 102.

Please note that hearing will be

authorized only after

the proponent cures any inadequacy

identified by Board order.

This provision allows

the Board

to

enforce the requirements of the Act and Sections 102.121 and

102.141 by delaying

the acceptances of

a regulatory proposal,

in

addition to the dismissal provisions of Sections 102.122 and

102.142.

“Notice of Hearing”, Section 102.241,

is also very similar

to the existing rules on notice of hearing

(see existing Section

102.122), although some language changes have been made.

Pursuant

to federal requirements,

notice of hearings on

regulatory proposals concerning air pollution or the Resource

Conservation and Recovery Act

(RCRA)

(42 U.S.C.

6901 et seq.)

must be published

at least

30 days prior

to the hearing date.

The rule has been updated

to reflect this requirement.

Subpart

I:

Economic Impact Study Determinations

This Subpart

implements

the provisions of

SB

1834 which

require the Board

to determine when an EcIS should be prepared by

ENR.

When this legislation becomes effective on January

1,

1989,

these EcIS determination provisions will

be

found

in Sections

27(a)

and 28.2 of

the Act.

Please note that Section 28.2 governs

EcIS determinations on

federally required rules, while Section

27(a) provides for EcIS determinations

for all other

regulatory

proposals.

These sections are substantially

the same,

and no

distinction between

the two have been made in this Subpart.

92—587

---

—14—

Section 102.260 “Board Determinations”

sets forth

the fact

that within

60 days after

the Board accepts

a proposal

for

hearing pursuant to Section

28 of

the Act and Section 102.210,

the Board shall determine whether an EcIS should be prepared.

However, at any time prior

to the close

of the record of

a

regulatory proceeding,

the Board may determine that an EcIS

should be prepared.

This provision, which

is statutory,

allows

the Board

to reconsider

a negative determination

if the proposal

is substantially modified or

if information

in the record

indicates that an EcIS would be advisable.

If the Board

determines that an EcIS should be conducted,

ENR shall prepare an

EcIS

in accordance with “An act

in relation

to natural resources,

research,

data collection,

and environmental studies.”

(Ill.

Rev. Stat.

1987,

ch.

96

1/2, par.

7401

et seq.)

The Board may

identify specific

issues

to be addressed

in the study.

“Request For Determination”,

Section 102.261, establishes

a

procedure for any person

to request that the Board determine that

an EcIS should or should

not be prepared.

Such a request must be

made within

21 days

of the data that the Board accepts

a proposal

for hearing,

and must be

in writing.

Ten copies of

the request

shall

be filed

with the Clerk, and one copy each served upon

the

Agency,

ENR,

the Attorney General,

and the proponent.

The

request shall detail

the reasons supporting

the request,

and

shall describe,

to the extent reasonably practicable,

the

economic impact of

the proposal.

All material facts asserted

in

the request must be verified by affidavit.

Section 102.262 describes the considerations upon which

the

Board will base its EcIS determination.

In addition to the

statutory factors of Sections 27(a)

and 28.2 of

the Act,

the

Board will consider information

in the record furnished by the

proponent pursuant

to Section 102.121 and by any person filing

a

request for determination pursuant

to Section 102.261.

(Please

note that the text of the rules refers

to

a request

for

determination pursuant

to Section 102.231;

the. ref~renceto

Section 102.231

is an error and should be Section

102.261-.

The

error will be corrected

at second notice.)

Finally,

Section

102.263 provides

that the Board will

issue

a written order giving

the reasons for

its determination.

Notice of that determination

will be given

to the proponent and

to any person who has asked

to

be placed on the notice list for that proposal.

Subpart 3:

Authority of Hearing Officer

This Subpart

is

an addition

to Part 102,

and

is intended

to

more clearly state

the powers of hearing officers

in regulatory

proceedings.

Section 102.280 “Authority of Hearing Officer”

is

based upon existing Section 102.160,

and is

intended

to be

identical

to proposed

35

111. Mm. Code 101.220.

(The Board

notes that subsection

(1)

of Section 101.220 was inadvertently

left out of

Section 102.280.

This error will

be corrected at

second notice.)

As discussed in the explanation

of Proposed Part

101,

the section on authority of hearing officer

lists several

q

2—588

---

—15—

specific powers.

That list,

however,

is merely an example of

a

hearing officer’s powers

and does not limit those powers.

“Notice and Service Lists”, Section

102.281, codifies

a

practice currently used in some regulatory proceedings.

The

hearing officer will maintain

a notice list for each regulatory

proceeding.

That notice list will consist of

all persons who

have furnished

their names

arid

addresses in reference to that

specific proceeding.

Notice of all Board action and hearing

officer orders will be given

to all persons on the notice

list.

Additionally,

the hearing officer may establish

a service list,

and may direct participants

to serve copies of

all documents upon

persons listed on the service list.

This “two list option”

enables the hearing officer

to draw

a distinction between those

who simply wish

to be notified of Board action on

a specific

proposal

and those who wish

to see the comments and motions filed

by participants

in that proceeding.

This option

is especially

helpful

in proceedings which have large notice list but

a

relatively small

number of actual participants.

Section 102.282 concerns the effect of

a hearing officer

ruling.

All decisions, orders,

and rulings made by a hearing

officer shall

remain

in effect during

the pendancy of any appeal

to the Board of that decision,

order,

or ruling.

This provision

will cut down upon any delay

in

a proceeding during any appeal

of

a hearing officer ruling or,

for example,

a motion to continue a

hearing

or

a motion

for sanctions.

Subpart

K:

Pre—Hearing Conferences

Subpart K establishes procedures

for pre—hearing

conferences, which are provided for

in SB

1834.

When that

legislation

takes effect on January 1,

1989, pre—hearing

conferences will be authorized by Section 27(e)

of the Act.

Proposed Section 102.300 provides

for initiation and scheduling

of

a pre—hearing conference.

To the extent consistent

wit.h any

deadline

for adoption of any regulation mandated

by

state- or

federal

law,

the Board may assign

a qualified hearing officer who

may schedule a pre—hearing conference between the proponent and

any or all

of the potentially affected persons.

A pre—hearing

conference may be scheduled on the hearing officer’s own motion,

or

on the motion of

the proponent

or any potentially affected

person.

A motion

to schedule

a pre—hearing conference shall be

directed

to the hearing officer.

The requirements for notice of

a hearing do not apply

to pre—hearing conferences.

However,

the

hearing officer will give notice

to any person who has requested

inclusion on the notice list of that proposal.

That notice may

be either oral or written.

Section

102.301 “Purpose”

sets out the purpose of these pre—

hearing conferences.

These purposes are statutorily articulated

in Section 27(e)

of the Act.

Section 102.302 “Pre—hearirig Order”

provides that no record of the pre—hearing conference need be

kept,

nor shall

any participant

in the conference or the Board

be

92-589

---

—16—

found

by any discussions

at that conference.

However, with

the

consent of all participants

in the pre—hearing conference,

the

hearing officer may enter

a pre—hearing order delineating

issues

to be heard,

agreed

facts,

and other matters.

The hearing

officer may

require that the participants

in the conference

furnish an agreed order setting forth the substance of the

agreements reached

at

the pre—hearing conference.

Please note

that

a pre—hearing order

is not binding on non—participants

in

the pre—hearing conference.

Subpart

L:

Motions and Discovery

The sections

in this Subpart, dealing with motion practice,

production

of

information,

and subpoenas, are based upon

provisions found

in proposed Part 101.

For example, Section

102.320 merely states that motion practice in regulatory

proceedings

is governed by Part 101,

Subpart

H.

Likewise,

the

section on subpoenas states

that

upon written motion by any

participant,

the hearing officer

or

the Board may issue subpoenas

for attendance

of witnesses at hearing.

The section then states

that subpoenas shall conform

to the requirements of proposed

Section 101.260.

Section 102.321,

on production of

information,

is

identical

to proposed Section 101.261.

Subpart

t4:

Regulatory Hearings

This Subpart deals with the conduct of hearings on

regulatory proposals.

Section 102.340 “Pre—submitted Testimony”

requires that all participants other than

the proponent submit

written testimony and any related exhibits 14 days prior

to

hearing.

Rules governing the form and filing

of those

submissions are included.

If

a proponent wishes

to supplement

testimony submitted when the proposal was filed,

those

supplements shall also be pre—submitted.

The Board points out

that these pre—submissions are

to be complete copies of

testimony, not outlines

of what

a witness

is

expect-ed

to

testify.

Extra copies of

testimony and exhibits shall be orought

to hearing,

so that the court reporter and any person who was not

served may be provided with copies.

Pre—submitted testimony will

be entered into the record

(i.e.

directly typed into the

transcript)

as

if read,

unless the hearing officer determines

that

it will aid public understanding

to have the the testimony

read by the witness.

Any testimony which

is not pre—submitted

will be allowed only

as time permits.

These provisions will

enable participants,

the Board,

and Board

staff

to focus on the

support

for and/or opposition

to

a proposal before

the hearing

occurs,

leading

to more efficient use

of hearing time.

Better

use of

time at hearing will cut down upon the number

of hearings

necessary on

a given proposal,

thus moving the regulatory process

more swiftly.

Section 102.342 “Admissible Information”

articulates

the

current Board position on what information

is admissible

in

a

regulatory hearing.

All information which

is relevant and not

92—590

---

—17—

repetitious or cumulative shall be admitted by the hearing

officer.

Therefore,

the only proper objections

to the

introduction of information are based on grounds of relevancy,,

repetition,

or harassment.

Sections 102.341 “Transcript” and Section 102.345 “Record

for Decision” contain the provisions of existing Section 102.164

“Record”,

but have been divided into two separate sections for

clarity.

Sections 102.343 and 102.344, which cover

presentation

of testimony and questioning of witnesses,

are based upon

existing Section 102.161 “Examination of Witnesses”.

The Board

believes that establishing

a separate section covering

questioning of witnesses more clearly articulates that although

all witnesses are subject to questioning

by any person,

the

hearing officer will prohibit repetitions,

irrelevant,

or

harassing questioning.

Subpart N:

Economic Impact Hearings

Section 102.360

“Hearings on the Economic Impact Study of

New Proposals”

is largely based upon existing Section 102.180.

Subsection

(b) has been added

to incorporate another provision of

SB 1834.

That subsection provides that in the case of

a

federally required rule

(as defined by Section 28.2 of the Act

and proposed Section 102.101),

the Board may adopt that rule

without an EcIS

if the EcIS

is not submitted

to the Board within

six months of the Board’s decision that an EcIS should be

conducted.

This provision will enable

the Board

to move

to final

adoption of federally required

rules more quickly.

Section 102.361, which governs hearings on economic impact

studies

of existing

regulations,

is almost identical

to the

existing section.

The language

of the proposed section

paraphrases the statutory provisions of Section

4(b)

of “An Act

in relation

to natural resources,

research,

data collection

and

environmental studies.”

(Ill.

Rev.

Stat.

1987, ch.~96

1/2-,

par.

7404(b).)

Subpart

0:

Public Comments

Section l02.3&0 “Public Comments”

is based upon existing

Section 102.163 “qritten Submissions.”

Any person may submit

written comments on

a proposal within 14 days after

the close of

hearing or regulation revision.

This 14—day period may be

changed

by the hearing officer or

the Board.

The proposed

section adds

a provision which specifically states that any

comment which

is not timely filed

will not be considered,

except

as allowed by the hearing officer or the Board

to prevent

material prejudice.

This provision will encourage participants

and others

to file their comments on time,

and will

allow

the

Board

to proceed

to

a decision on the proposal

in

a timely

manner.

The Board specifically points out that motions

for

extension of

time to file comments are not favored.

92—59

1

---

—18—

Subpart

P:

Board Action

This Subpart, which

is

an expanded version of Subpart

F of

the existing Part

102,

sets out

the various ways

that the Board

may adopt regulations.

Proposed Section 102.400 allows

for Board

revision of proposed regulations

in response

to suggestions made

at hearing and

in written comments prior

to second notice,

without triggering

the need

for

an additional hearing or

a new

EcIS.

Subsection

(c)

tracks

the language of Section

28 of the

Act

in providing for revisions in response

to suggestions or

objections made by the Joint Committee on Administrative Rules

(JCAR).

Section 102.401

is

a general section on the adoption of

regulations.

Except as otherwise provided by the Act,

the Board

may not adopt any substantive regulatory proposal until after

a

public hearing.

However,

the Board need not hold

a hearing on

a

procedural

regulation,

except

as provided by Section 5.01 of the

APA.

The statutory authority

for this distinction is found

in

Sections

26 and 28 of the Act.

Section 102.401 also requires the

Board

to consider the elements

of any EcIS performed by ENR on

a

particular

regulation, except

in

a proceeding for adoption of an

identical

in substance regulation or

a required

rule.

In the

case of

a required

rule,

the Board will consider any EcIS

submitted within the six—month period established

by Section

28.2

of the Act and proposed Section 102.362(b).

Finally,

the

proposed section points out that the rulemaking provisions of

Title VII of the Act and Section

5 of

the APA do not apply

to

identical

in substance rulemakings.

Proposed Sections 102.402 and 102.403 explain the first and

second notice periods which, pursuant to Section 5.01 of the APA,

are applicable

to any regulation which

is not an identical

in

substance rule or adopted pursuant

to

the emergency peremptory

and temporary rule provisions of the Act and the APA.

Among

other things,

these sections point out that although any person

may submit written comments on

a proposed rule during the 45—day

first notice

period,

the Board will accept comments only from

JCAR during the second

notice period.

After the beginning of

second notice,

no changes will be made

to the proposed regulation

except

in response •to objections or suggestions from JCAR.

These

provisions are mandated by Section 5.01

of the APA.

Section 102.404

“Notice of Board

Final Action”

is

substantially the same as existing Section 102.201.

The proposed

section now provides that notice of Board

final action will be

published in the Illinois Register and

in the Environmental

Register.

Finally, proposed Sec~E1bns102.405 through 102.409

cover

the adoption

of RCRA rules,

identical

in substance

regulations,

and emergency, peremptory,

and temporary rules.

The

great majority

of the provisions

of these proposed sections Irack

the statutory language applicable

to each type of rule.

2—592

---

—19—

Subpart Q:

Motions for Reconsiderations

and Appeal

Motions for reconsideration or modification of any Board

order taking substantive action on

a regulatory proposal shall

be

filed

in accordance with proposed Sections 101.242 and 101.246.

Section 102.421 “Disposition of Motions for Reconsideration” has

been added

in order

to specifically state

the Board’s position on

motions for reconsideration at second notice and final

adoption.

Motions

for reconsideration at these stages of

a

regulatory proceeding present

a problem, because no substantive

modifications of

a rule may be made after

the beginning

of second

notice,

except

in response

to JCAR objections and suggestions.

Thus,

submission of second notice of

a rule to JCAR will preclude

the Board

from revising that rule

in response

to a motion for

reconsideration.

However,

the Board has the option of making

changes and submitting

the rule

for

first notice

if necessary

to

prevent material prejudice.

The Board will use this option only

in the rarest of occasions.

Likewise, because an adopted rule

becomes

effective upon the filing

of that rule with the Secretary

of State,

the Board

is precluded from allowing

a motion

for

reconsideration of

a final order adopting

a

rule,

if that rule

has been filed.

Finally, Section 102.422 provides that appeal

of any final

Board order

is

to the appellate court,

and conducted pursuant

to

Sections

29 and 41 of

the Act.

PART 106

—

HEARINGS PURSUANT TO SPECIFIC RULES

Subpart

A:

Heated Effluent Demonstrations

Subpart

B:

Artificial Cooling Lake Demonstrations

Subpart

C:

Sulfur Dioxide Demonstrations

Subpart D:

RCRA Adjusted Standard Procedures

Subpart

E:

Air Adjusted Standard Procedures

Subpart

F:

Water Well Setback

Exception Procedures

The Board

has not approached revision of

this Part

as

it has

done

to revision of Parts

101 and 102,

by repealing the Part and

“starting over from scratch”.

In the

interests of having

rules

implementing SB 1834’s adjusted standards

in place by January

1,

1989,

the Board

is deferring review of

the oldest Subparts——A,B,

and C—— although the Board anticipates

returning

to these

Subparts before completion of

this procedural rule revision

process.

In the newer Subparts—— D,E,

and

F

——

the Board has

updated

references to other

rules

to make them consistent with

the proposed revisions to Parts.

Subpart

G:

Adjusted Standards

The Board’s proposed amendments

add

a

new

Subpart G

to 35

Ill.

Adin. Code

106.

This proposed new Subpart imposes procedural

requirements for adjusted standard proceedings that are held

pursuant to Section 28.1 of the Act as amended by P.A. 85—1048

(effective January

1,

1989).

On the whole, the requirements of

92—593

---

—20—

Subpart G speak

for themselves.

However,

the Board will broadly

outline the workings

of

an adjusted standard proceeding as held

in accordance with the proposed Subpart.

The Board generally

solicits comments on this Part.

Section 106.701 “Applicability” provides

that the proposed

procedures

of Subpart G would not apply

to proceedings conducted

pursuant

to existing Subparts A,

B,

C,

D,

E

or

F of Part 106.

It

further provides that the requirements of

35

Ill. Adm. Code 101

do apply to proceedings conducted pursuant

to Subpart

G.

In

other words, one must read Subpart G

in conjunction with Part 101

to determine all of the procedural requirements for an adjusted

standard proceeding.

In the event that the requirements of Part

101 conflict with

those of

Subpart G,

the provisions of Subpart

G

govern

in an adjusted standard proceeding.

The Board

intends

to add

a severability section

to this

Subpart identical

to that

to be

added

to Parts

101 and

102.

An adjusted standard proceeding begins with the filing

of

a

petition.

A petition may be filed either

singly or

jointly with

the Agency.

(Section 106.703).

Any person who wishes

to file an

adjusted standard petition may request that the Agency

join as

a

co—petitioner.

The Agency

is not required

to act as

a co—

petitioner

if requested.

However,

if the Agency

is requested

to

be

a co—petitioner

it may require information from the petitioner

in order

to evaluate the request.

(Section 106.704).

Sections 106.703

—

106.708 set forth detailed requirements

for the contents of

a petition.

These

informational requirements

are

the minimum necessary

to ensure

a proper evaluation of an

adjusted standard request.

All

the factual information asserted

in

the petition must be verified by affidavit accompanying

the

petition.

The petition must also either request or waive a

public hearing.

Section 106.711

—

106.712 implement Section 28.1(d)

of the

Act

(P.A.

85—1048), which places the burden of the initial

noticing of

a petition on petitioner.

Within 14 days after

filing

of

a petition,

the petitioner must cause

the publication

of

a notice stating- that an adjusted standard petition has been

filed with the Board.

The notice

is

to be

an advertisement in

a

newspaper of general circulation

in the area likely to

be

affected by the petitioner’s activity which

is the subject of the

adjusted standard request.

The publication of the petition

notice

is accomplished at the petitioner’s own expense.

Among

other requirements,

the petition notice must state that any

person may request that

a hearing be held

in the proceeding by

filing

a hearing request within

21 days of the date of the

notice’s publication.

Within

30 days of the filing

of

a

petition,

the petitioner must file proof of the petition notice

publication.

92—594

---

—21—

Section 106.713 provides that any person may request

a

hearing on any adjusted standard proceeding.

Such

a hearing

request must be filed within

21 days after

the publication of

the

petition notice.

If the Board receives

a timely request,

it will

hold

a hearing

in the proceeding.

In addition,

if the Board

determines that

a hearing would be advisable,

it will hold

a

hearing

irrespective of whether

it has received

a hearing request

from the petitioner or

a member

of the public.

Section 106.714

“Agency Response” provides that not later

that

30 days after

the filing

of

the petition the Agency must

file

a response

if

it

is not

a co—petitioner.

At a minimum,

the

response must address and respond

to

the petition with respect

to

informational requirements of

a petition.

Also,

the Agency may

include in its response any information which

the Agency believes

is relevant

to

the Board’s consideration of the proposed adjusted

standard.

Sections 106.801

—

106.808 outline

the procedures by which

adjusted standards hearings are

to be conducted.

If

a hearing

is

held

in an adjusted

standard proceeding,

it will

be held

in the

county likely

to be affected

by the petitioner’s activity which

is the subject of

the proposed adjusted standard.

In accordance

with the requirements of Section 28.1(d),

notice of

the hearing

shall be given by advertisement in

a newspaper of general

circulation at least

20 days prior

to the date of the hearing.

The Clerk

of the Board will cause

the publication of the hearing

notice.

(Section 106.802).

Although the pre—hearing submission of

testimony and

exhibits

is not automatically required,

as with the rulemaking

procedures of proposed Part 102,

the hearing officer may

impose

such

a requirement.

(Section 106.803).

At hearing, the burden

of proof

is on the petitioner

to

prove,

by a preponderance of

the evidence,

the ~appl-~icable

level

of justification for

an adjusted standard proceeding.

IUthe

regulation of general applicability,

from which an adjusted

standard

is sought,

specifies the level

of justification for an

adjusted standard,

then that standard will be applicable.

If the

regulation

of general applicability is

silent concerning

the

level of justification, then the standard

imposed by Section

106.903(a) will govern.

The standard set forth by that Section

is identical to that imposed by Section 28.1(c)

of the Act.

(P.A.85—l048).

(Section 106.903).

Subpart G as

a whole provides for broad public participation

in an adjusted standard hearing.

The level

of such public

participation

is patterned

after that which

is found

in the

current rulemaking procedures.

Adjusted standard proceedings

result

in the establishment of environmental standards.

Such

standards have

the same force and effect as those which are

promulgated

as

rules.

It follows naturally that the public

should have participation rights

in an adjusted standard

92—595

---

—22--

proceeding which are equivalent

to those afforded

in

rulemakings.

It would be seem inconsistent with the intent

of

the Act to allow adjusted standard proceedings

to become forums

which effectively exclude

the public from meaningful

participation

in the determination of environmental standards.

Consequently,

the procedures

of Subpart G provide opportunities

for the public

to contribute

to the adjusted standard decision—

making process.

Section 106.805(e)

provides that any person may introduce

evidence at hearing and any person may ask questions of any

person who testifies

at hearing.

Section 106.807 provides that

subsequent

to the hearing,

any person may file comments which

present his

or her views concerning

the record before the Board.

Amended Section 28.1(a)

states that adjusted standard

determinations are “adjudicatory determinations”.

However,

the

Act does not define particular

“parties”

for an adjusted standard

proceeding.

This further

indicates that public participation

need not be limited

in scope.

In other words,

adjusted standard

proceedings

are not contested cases between two or more distinct

parties.

Yet,

at the same

time,

the “adjudicatory” language may

not be ignored.

As

a result,

Section 106.805

sets forth

a standard

for

admissible evidence which

is equivalent to that currently used in

the contested case proceedings

of enforcement actions, permit

appeals,

and variances.

It

is also consistent with

the

requirements of

Section 12 of the Illinois Administrative

Procedure Act

(APP.).

Ill. Rev.

Stat.

1987,

ch.

127, par.

1012.

In addition,

the opportunity for cross—examination of any person

who testifies

is afforded by Subpart G.

This,

too, comports with

the Board’s current procedures as well as Section 12 of the

APP..

Again,

the burden of proof

is on the petitioner.

The

petitioner must prove

its case by

a preponderance

of

the

evidence.

Such

a standard

is generally used by triers offact

in

civil

cases,

so that standard

is appropriate here.

If the petitioner proves

the applicable

level

of

justification

for

an adjusted standard then the Board ~y,

consistent with Section 27(a)

of the Act, grant

the adjusted

standard.

The use by Section 106.903

of the permissive term

“may”

is statutory

in origin.

Section 28.1(c)

of

the Act

(P.A.

85—1048).

Consequently, even if the petitioner meets

its burden

of proof,

the Act does not require the Board

to adopt

the

proposed adjusted standard.

As in the Act, Subpart

G provides

that

the Board may impose conditions on the granting

of an

adjusted standard.

Section lO6.907(a) states that

if the Board does

not adopt

the proposed adjusted standard,

the regulation

of general

applicability remains applicable

to the pollution source.

Section

28.1(e)

of the Act

(P.A.

85—1048)

states that

the

92—596

---

—23—

operation of

the regulation from which

the adjusted

standard

is

sought

is stayed, pending the Board’s final decision,

as

to the

petitioner,

if the petition

is filed within

20 days after

the

effective date of that regulation.

However,

if the regulation of general applicability

implements

in whole or

in part

the Clean Air Act,

a petitioner

becomes exempt from that regulation

if

a petition

is filed within

20 days of the effective date of the regulation.

Section 28.1(f)

of

the Act

(P.A.

85—1048).

This provision

is also set forth by

Section 106.907(b).

In the case of the Clean Air Act regulation of general

applicability,

the Board,

as

a final determination, must either

adopt the proposed adjusted standard,

if the applicable level of

justification has been proven,

or adopt

a standard the same as

that imposed by the regulation

of general

applicability.

Section

106.903(c).

This provision

is found

in Section 28.1(f)

of the

Act.

(P.P..

85—1048).

In

a Clean Air Act regulation/adjusted

standard proceeding where the petitioner has failed

its burden

of

proof,

the record need not justify the adoption of the standard

of the regulation

of general applicability.

It

is clear

from the Act that the Board must adopt either

the standard

imposed by the regulation of general applicability

or the proposed adjusted standard when

a proceeding

involves the

Clean Air Act.

It

is equally clear that the burden of proof

in

an adjusted standard proceeding

is on the petitioner.

Section

28.l(c)of the Act

(P.A.

85—1048).

The petitioner

for

an adjusted

standard certainly will not prove

that the regulation of general

applicability should be applied

to the petitioner.

Neither does

the Act provide

for

such

a proof.

Consequently, Section

106.903(c)

hinges

the imposition of the standard

of the

regulation of general applicability upon the failure by the

petitioner

to prove

the applicable level

of

justification for the

proposed adjusted standard.

Section 106.902 provides that at any time during an adjusted

standard proceeding,

the Board may dismiss

a petition upon

several bases.

If the Board determines

that the petition

is

frivolous,

duplicative, or deficient with respect to the

petition’s contents, petition verification, proof of

service, or

petition notice.

Also,

if the Board determines that the

petitioner

is not pursuing disposition of the petition

in a

timely manner

the Board

may order

a dismissal.

Section 106.905 addresses

an appeal

of the Board’s final

decision.

The Section merely restates the language of Section

28.1(g) of the Act which provides that appeal

may be pursued

pursuant

to Section

41 of the Act.

Since Section

28.1 of the Act

does not specifically name “parties”

to an adjusted standard

proceeding

the Board believes that an appeal

of an adjusted

standard decision would

be available

to any person,

as

it

is

in

a

rulemaking context.

The Board cannot

see

a distinction between

9 2—597

---

—24—

the public’s

interest

in an appeal of

an environmental standard

which was promulgated as

a rule as opposed

to one which was

adopted pursuant

to an adjusted standard proceeding.

The Act has

provided

for broad public participation

in the adoption and

appeal

of environmental standards.

There

is no apparent reason

to deviate from that theme

for adjusted standard proceedings.

Ultimately,

though,

it

is for the courts

to decide who has

standing

to appeal

a Board decision made pursuant

to Section 28.1

of the Act.

3. Anderson,

3.

D.

Dumelle,

and J. Marlin concurred.

I, Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify tha

the above Proposed Opinion was adopted

on the

~~‘)“

day of

____________________,

1988,

by

a vote

of

~

Dorothy

M.

unn, Clerk

Illinois Pollution Control Board

92—598