ILLINOIS POLLUTION CONTROL BOARD
October
8,
1981
IN THE MATTER OF:
R80—18
AMENDMENT TO CHAPTER 1:
)
PROCEDURAL RULES 304 AND 308
)
OPINION OF THE BOARD
(by 3. Anderson):
This Proposed Opinion is written in support of the proposed
rules, second notice of which was submitted to the Joint Committee
on Administrative Rules
(JCAR) pursuant to the Board’s Order of
October
8,
1981.
If amendment of the rules is made pursuant to
JCAR suggestion during this second notice period, the Board’s
Order adopting a Final Opinion will address any substantial
changes.
On October 17, 1980 the Board on its own motion proposed to
amend Procedural Rules 304 and 308.
The proposal was published
in the Environmental Register No. 226 on November
4,
1980 and in
the Illinois Register on November 7,
1980, Vol.
4,
p.
39.
The
Board has amended its proposal
in light of timely comments filed
December 22,
1980 by Sherex Chemical Company
(PC 1) and Monterey
Coal Company Company (PC 2), and the January 14,
1981 late filing
of
(PC
3)
the Illinois Environmental Protection Agency (Agency).
These comments will he discussed as each rule and changes therein
are addressed.
Rule 304
Notice,
Formal Complaint, and Answer
New subsection
(d)
is added in part as a “clean—up” matter.
Answers to complaints had formerly been mentioned in Rule 308(a),
dealing with motions.
The Board believes it more appropriate to
have the initial mention of all pleadings required
in a case
consolidated within the same rule.
The original proposal went on to provide “Affirmative
defenses not raised by way of answer shall be deemed waived.”
The purpose of the proposed change was to require early pleading
of affirmative defenses, to prevent the Board and the litigants
from expending time and resources in bringing an action to hearing,
only to have it dismissed on legal grounds which could have been
foreseen.
Sherex and Monterey Coal agree that early pleading of such
defenses is desirable.
However, they contend that existence of
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2
such defenses may only come to light during discovery,
and that a
litigant’s rights to due process may be impaired if an affirmative
defense is discovered after the initial
30 day answer period.
Rule 304(d) has been redrafted,
and is patterned after
Section 43(4)
of the Civil Practice Act.
Affirmative defenses
must be pleaded by way of answer prior to hearing to prevent both
surprise and unnecessary hearings, but may be raised in a
supplemental answer filed by leave of the Hearing Officer as
provided for in Procedural Rule 236(a).
Rule 308 Motions dnd Responses
The Board proposed modifications only in subsection
(a),
(b),
and
(e).
The Agency has suggested that the Rule be revised and
internally reordered in its entirety.
The Agency’s draft revision
retains nearly all of the language of the current rule.
While the
suggested rearrangement would improve the clarity of the Rule,
the
Board believes that any gain would be overbalanced by the confusion
which,
the Board has noted, follows a wholesale revision of any
of its Procedural
Rules.
The Board has therefore not adopted the
suggested revision, but will retain them for consideration in any
future proceeding which may involve a “clean—up” of Chapter 1 as
a whole.
Discussion of the answer, now contained in Rule 304(d), has
been deleted from Rule 308(a).
Rule 308(a) has been amended to
specifically provide for the time and manner of making voluntary
motions to dismiss, concerning which the existing rule is silent.
The original proposal provided that such a motion,
if made in
writing,
should be made 14 days prior to hearing,
as
is the
requirement of motions to dismiss made by respondent.
Sherex and
the Agency note that this
is inconsistent with the provisions
allowing such motion to be made on the hearing record, and would
result in a
14 day hiatus when the motion could not be made.
As
there is merit in this observation, the Board has provided that
complainant’s written motions to dismiss may be made at any time
before the Board issues its decision.
Rule
308(a)
has
been
amended
to
explicitly
require
that
written
motions
“state
the
reasons
for
and
grounds
upon
which
the
motion
is
made.”
While
this elementary principle should not need
to
be
enunciated,
motions
in
many
categories,
but
particularly
the
dismissal one,
fail to state the premises on which a request for
Board
action
is
made.
Rule
308(a)
would
also
mandate
that
motions
for
voluntary
dismissal
be
accompanied
by
affidavit,
a
requirement
that
should
be
examined
in
conjunction
with
the
addition
to
Rule 308(e).
Rule
308(e)
would
allow
the Board,
for reasons stated, to dismiss an
action without leave to reinstate “if justice so demands”.
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3
While this had been past Board practice, an appellate
decision indicated that in order to continue so doing, the Board
should so provide by rule, Village of South Elgin v. Waste
Management of Illinois,
Inc.
et al. 381 N.E.
2d 778,
783,
64
Ill.
App.
3d
565
(2d Dist.,
1978),
This
rule
was
proposed
in
response
to
situations
occurring
in some enforcement actions, which will not be here specified.
In
one,
the
complainant
sought
dismissal
with
leave
to
reinstate
on the grounds that “the parties arrived at a mutually acceptable
manner of disclosing of the matters alleged in the complaint”.
Dismissal
in
that sort of circumstance may be an inappropriate
means
of
bypassing
the notice and comment procedures of Rule 334
“Settlements”,
a bypassing which the Board does not encourage.
The use of informal tools to assure compliance by a pollution
source may be perfectly appropriate in a given case at a given
time.
Once
a formal complaint is made,
and the Board’s public
adjudicatory processes are engaged, the public and the Board are
entitled to know what is happening in a case, and for what reasons.
This is especially true where the complaint represents or acts on
behalf of the public.
The Board cannot force a complainant to move forward with a
case.
The Board believes that if voluntary dismissal is allowed,
but with the proviso that reinstatement may not be allowed, that
this may provide a disincentive to any inclination to short cut
Board procedures, or attempt to over—reach in the settlement of a
complaint of dubious merit or validity.
If a complainant chooses
to
pursue
an
informal
“compliance
order”
after
the
filing
of
a
complaint,
he
must
do
so
with
awareness
that
the
original
cause
of
action
is
extinguished.
The
Board
believes
that
the safeguarding
of the integrity of its public process
is
consistent
with
its
role
as part of a check
and
balance
system
in
protecting
the
environment.
The Agency suggests that the Board dismiss an action without
leave to reinstate only if respondent
so requests in reply to a
complainant’s motion to dismiss with leave to reinstate.
Adoption
of
such
a
condition would insure only that respondents with
sophisticated attorneys receive procedural protection from revival
of
causes
of
action.
The
Board
declines
to
create
such
a
situation.
The
affidavit
requirement
of
Rule
308(a)
is
intended
to
make
sure that the Board is given the actual reasons for which dismissal
is
sought.
While the “if justice
demands”
standard
for
decision
concerning
dismissal
without
leave
to
reinstate
may
be
less
narrow
than
some
would
prefer,
it is
one
which
is
contained
in
and
has
been found workable
in other Board rules
(e.g.,
Rule 311).
Its
application to the facts
in any given case will be detailed in the
Board’s Orders, which are of course subject to reconsideration and
appeal.
The Board believes that these changes to its procedural
rules will allow it to continue to provide efficient, open and
just resolutions of the disputes brought the Board.
43—491
4
I,
Christan
L. Moffett, Clerk of the Illinois Pollution
Control
Board,
hereby
certify
that the above Opinion was adopted
on
the
~
day
of
______
___________,
1981
by
a
vote
of
~
Illinois Pollution
trol Board
43—492