ILLINOIS POLLUTION CONTROL BOARD
    January
    7,
    1982
    IN THE MATTER OF:
    )
    )
    PROPOSAL TO AMEND RULES 208 AND 209
    )
    R81-13
    OF PART II OF CHAPTER
    1, THE BOARD’S
    )
    PROCEDURAL RULES.
    )
    ORDER OF THE BOARD
    (by I. Goodman):
    On February 23,
    1981 the Illinois Pollution Control Board
    (Board) received a proposal to amend Rules 208 and 209 of its
    Chapter 1:
    Procedural Rules from the Illinois Environmental
    Protection Agency (Agency), which was later assigned docket
    number R81—13 and published in the Environmental Register #234
    of March 18,
    1981,
    TLIe Agency proposed to amend these procedural
    rules
    so that participants testifying at regulatory public
    hearings about scientific or technical matters be required to
    submit written testimony fourteen days in advance of the hearing
    date.
    The proposed amendments further provided that such testi-
    mony be circulated among the proceeding’s other participants.
    Failure to so comply could be cured only by the participant being
    available for cross—examination at the next hearing, otherwise
    the testimony would be
    stricken from the record.
    This matter is
    hereby dismissed.
    Pursuant to Section 26 of the Illinois Environmental
    Protection Act
    (Ill.
    Rev.
    Stat., 1981,
    ch.
    111—1/2, S1026), no
    public hearing was required in this regulatory matter.
    An
    initial public comment period from April
    2 through May 15,
    1981
    was extended through June 30,
    1981.
    Comments were received from
    private industry, individuals and public interest groups.
    In
    general, the commentators favored requiring submission of written
    testimony pre-hearing, but all sought to further refine the
    Agency’s proposal.
    As
    a whole, it was urged that the same
    requirements should apply to economic testimony, to which the
    Agency later offered no objection, explaining that it believed
    such to be included under scientific testimony; the fourteen
    day submittal date was insufficient and should be increased to
    at least twenty days;
    identification of the proceeding’s
    participants was uncertain and should be delineated, and the
    hearing officer’s discretion should be strengthened so that a
    non—complying participant’s testimony would not be unnecessarily
    barred.
    The Board having reviewed the Agency’s proposal, rationale
    and comments and those proferred by others finds that such a broad
    requirement for written testimony essentially makes for paper
    hearings, which have a chilling effect on public participation.
    45—79
    For example,
    a pre-hearing exchange of written testimony in-
    creases the potential for off—the—record compromise and resolu—
    tions between opposing participants.
    Not only does this inhibit
    fact-finding via cross—examination, but also leaves the Board
    with a deficient record.
    Secondly,
    if as suggested by the Agency,
    written testimony
    is not entirely read into the record,
    but rather
    accepted as
    an. exhibit, participants not privy to th~pr~.arin~
    exchange would be unable to thoroughly cross-examine or respond.
    Perhaps the most chilling effect is felt by participants who are
    potential witnesses.
    Participants prompted at a hearing to tes-
    tify may forego the opportunity simply because no prior writing
    was submitted.
    The Board cannot adopt general rules which in
    defining some participants and their roles
    in a regulatory matter,
    exclude others.
    Furthermore,
    regulatory hearings are intended
    to provide the Board with the information it needs to adopt
    fair.,
    clear and complete regulations.
    To inhibit the participants, the
    Board would be inhibiting its own information—gathering activity.
    The sanctions proposed by the Agency
    for failure to comply
    with pre—hearing submissions are more stringent than those
    currently contained in the Board’s Chapter
    1 rules pertaining to
    public comments.
    If a participant failed to abide by the rules,
    the Agency would not even have that testimony afforded the status
    of public comment, but rather would have it stricken from the
    record.
    Since the participant was available for cross-examination
    at the time the testimony was given,
    this result is unduly harsh.
    Rules
    206 and 209 of Chapter
    1 are currently structured to
    provide for prior written submissions when the hearing officer
    discerns them necessary for the development of
    &
    f&ir and coc~plet~
    record.
    While supporting the Agency’s proposal, the commentators
    consistently argued that an amendment vesting the hearing officer
    with discretionary power to not require prior written testimony
    was needed to safeguard the procedure.
    Given the similarity be-
    tween the existing rules and the proposed amendment and the chil-
    ling effects of the proposal, this matter has been dismissed.
    The Board, as apparently do the commentators based on their
    suggestions, trusts that its hearing officers will properly
    exercise their discretion when so required.
    Lastly the comments received in this matter brought to light
    a number of deficiencies
    in
    the current Rules 208 and 209.
    These
    will be corrected in the upcoming review of the procedural rules.
    IT IS SO ORDERED.
    I,
    Christan L.
    Moffett, Clerk of the Illinois Pollution
    Contro), Board, hereby certify that the above Order was adopted on
    the
    ~yt~
    _day of
    1982 by a vote of~/-~O
    Ch~istanL. Moff
    Illinois Pollut
    1erk
    trol Board
    45—80

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