ILLINOIS POLLUTION CONTROL BOARD
January
21,
1988
IN THE MATTER OF:
)
REGULATORY AND OTHER
NON-ADJUDICATIVE
)
RES 88-1
HEARINGS AND PROCEEDINGS
)
RESOLUTION OF THE BOARD
(by J. Theodore Meyer):
In the course of the last several months,
the Board and many
others have given considerable thought to methods by which the
Illinois regulatory system can be streamlined without undermining
the quality, integrity,
and public participation rights which
characterize the system.
Three major goals have been
identified:
to dovetail procedural requirements of the
Environmental Protection Act
(Act)
with those of the
Administrative Procedure Act,
to enhance timely introduction and
consideration of pertinent economic information
in regulatory
proceedings, and
to more efficiently crystallize areas of dispute
prior
to hearing to allow for more efficient discussion of
regulatory proposals
at hearing.
Full achievement of these goals
will
likely require pursuit of some statutory changes,
a process
to which
the Board
is fully committed.
In the
interim, while scrutiny of the system continues,
the
Board
believes that certain steps
in the rulemaking process can
be more efficiently managed by the Board
and its hearing
officers.
Generally,
the Board believes that the system would
be
improved
if hearings on
a proposal
are postponed until after
first notice publication of
the proposal
and
a subsequent round
of comments and responses concerning that proposal.
A
preliminary written comment period would help resolve any
ambiguities
in the proposal and would
frame
the factual issues to
be resolved at hearing.
Specifically,
the steps
in the
rulemaking process would be
as
follows.
1.
Board review of
a filed petition for completeness.
After
a
rulemaking proposal
is filed and docketed,
it would be
reviewed for completeness.
A complete petition would
include:
a)
the proposed regulation drafted
in proper
Administrative Procedure Act
(APA)
form;
b)
a statement of
reasons,
including
a technical justification for the proposed
85—285
controls and,
to the extent possible and appropriate,
a list
of the sources affected;
c)
copies of testimony expected
to
be presented at hearing;
d)
copies of all exhibits and
references;
and
e)
copies of any material
to
be incorporated
by reference.
The petition would proceed
to hearing only
after
the proponent cures any inadequacy identified by Board
Order.
2.
Petition sent to APA first notice.
When
a petition appears
to be complete,
the Board would issue
a first notice order,
with the statement that the Board
had not reviewed
the merits
of the proposal.
The proposal would then be published
in the
Illinois Register.
During
the first notice period, members
of the public would be requested to submit any questions they
might have concerning either the form or substance of a
rule,
as well as
to submit comments concerning the proposal.
3.
Simultaneously with Step
2,
above: Proposed
rule sent to the
Joint Committee on Administrative Rules
(JCAR),
the
Department of Energy and Natural Resources (DENR),
and the
IEPA
(in proceedings where the Agency
is not
a proponent)
for
preliminary review.
By submitting
the proposed rule to JCAR,
DENR and the Agency at this stage,
their questions and
requests for information would
be identified earlier
than
in
some past proceedings.
The proponent of the rule would be
required
to answer such questions (see below).
4.
Proponent’s responses
to
first notice comments,
JCAR,
DENR,
and IEPA questions.
After the APA first notice comment
period
is closed,
the Board would
require the proponent
to
file responses to comments received during
the
first notice
period,
including questions and comments
from the Board,
JCAR,
DENR,
and IEP~(where not
a proponent).
The Board
would consider failure
to make
a timely response grounds
for
dismissal of the petition.
5.
Authorization of hearing.
If the comment and response step
is completed without substantial modification of the
proposal,
the matter would
be authorized for hearing.
Substantial modifications might require
a new comment period.
6.
Notice of hearing and hearing officer order.
The Board would
direct
its hearing officers
to publish the notice of hearing
in the Illinois Register
in addition to giving
the Board’s
usual methods of notice.
The notice and hearing officer
Order would
state that priority
in presentation of testimony
and
in questioning would
be given
to those who had pre—filed
testimony by a date certain.
While failure
to pre—submit
testimony would not absolutely preclude presentation of
testimony,
such testimony would be taken only if time
remained during that hearing day.
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7.
Merit hearings.
The Board believes that much of the element
of “surprise”
which has
in past arisen because of lack of
pre—hearing identification of areas
of question and concern
will have been eliminated,
thereby reducing the need
for
cross—questioning.
Pre—filed testimony would be entered into
the record as
if read, unless
the hearing officer determines
that it would aid public understanding
to have the testimony
read by the witness.
(This would occur only in situations
where there are members of the public
in attendance who have
not received copies of the testimony.)
The Board
is aware
that required pre—filing
of testimony may
inhibit hearing participation by those with limited
resources.
The Board
is accordingly considering adding
a new
form of hearing participation:
the sworn oral public
comment.
The commenter would answer only questions from the
Board
and the hearing officer.
The oral comment would
receive less weight than the weight given
to testimony
subject to questions by all participants.
Specific hearing
time would be allocated
to the presentation of oral public
comments.
8.
Economic impact hearings.
There would
be
a similar comment
and response period prior
to the economic
impact statement
hearings.
Pre—filed testimony would also be required for
these hearings.
9.
Second notice.
The Board believes that the interaction
between
the Board and JCAR at this stage would
be
improved,
since JCAR’s preliminary comments and concerns would have
been earlier addressed.
10.
Final
adoption.
The Board believes that the rules adopted
pursuant to
a record developed by these procedures should be
no more susceptible
to appeal then those under
the current
system.
The Board will shortly propose new procedural
rules to
implement these steps
for all new regulatory proposals.
In
addition to the novel oral public comment provision, the Board
will also consider adding
a modified regulatory negotiating
process
to its procedures.
In the meantime, the Board and
its
hearing officers will implement the above procedures on
a case—
by—case basis
in ongoing proceedings by entry of such Orders ~s
are lawful and appropriate.
The Board
in cooperation with its sister agencies, will
pursue any statutory changes necessary to authorize these, and
any other procedures, which will improve the rulemaking
system.
IT
IS SO RESOLVED.
85—287
I,
Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify
hat the above Resolution was adopted on
the
~,A~day
of
________________,
1988,
by a vote of
7~
Dorothy M.
thinn, Clerk
Illinois Pollution Control Board
85—288