ILLINOIS POLLUTION CONTROL BOARD

March 17,

1977

In the Matter of:

)

R75—1

PROCEDURAL RULES REVISIONS

)

DISSENTING OPINION

(by Mr.

Zeitlin):

Wrhile

I have concurred with the Board with respect to all

other Parts of the Procedural Rules,

I find that

I must dissent

from the Board’s Order of March

3,

1977 and Opinion of 1~4arch17,

1977,

adopting a new Part VI:

Hearings Pursuant to Rule 203(i) (5)

of the Water Pollution Control Regulations.

I feel there are def1-

ciencies in these Rules serious enough to cast doubt on the validity

of the entire scheme established by Rule 203(i) (5).

First,

the

new

Procedures in Part VI fail to define the nature

of the proceeding.

While

it may be the Board’s intent that these

hearings be adjudicative

(Rule 605(a)), this should be clarified.

Such clarification would apprise petitioners of the standards to

be applied in reaching decisions pursuant to new Rule 607.

Second, no criteria or standards are stated for the Board’s

decision as to whether a source causes

“significant ecological

damage.”

Inasmuch as neither “significant” nor

“damage” are defined,

the Board will be making adjudicative decisions on the central issue

under Rule 203(i) (5) without providing any guidance to the petitioner

making a demonstration,

or to any other interested parties.

Third, the Board’s decision as to “any corrective measures”

which it finds “appropriate” will clearly constitute

a denial of

basic due process

(to the petitioner)

and a violation of basic

administrative law

(by the Board).

It is a general tenet of admini-

strative adjudication that there must be specific criteria and

standards to guide such decisions.

Fourth,

if the hearing required by the Board is in the nature

of an adjudicatory hearing,

it seems that the Board may be limited

in reaching its decisions by an absence of opposition to a peti-

tioner’s claim that no ecological damage has occurred.

The Board

has heretofore avoided any adversary role in adjudications before

it.

25-161

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Finally, it seems likely that these cases may take an unduly

long time to even get started.

Pursuant to new Rule

604, we must

apparently wait 60 or

74 days before a hearing is

set,

or before

a petitioner even knows whether its petition will be opposed by

the Environmental Protection Agency.

Rule 203(i) (5)

of Chapter

3 seems to have been designed to

allow the Board to assure itself that the thermal standards of

Rule 203 are adequate.

If used for that limited informational

purpose, the Rule would be suitable, and perhaps provide a basis

for additional proceedings to correct any damage found.

But to

require petitioners to present information about compliance with

undefined standards, which information may then be used,

in the

absence of due process, as a basis for mandatory Orders of the

Board seems terribly unfair.

I must respectfully dissent.

I, Christan

L. Noffett,

Clerk of

the

Illinois Pollution

Control

Board, hereby certify the above Dissenting Opinion was

submitted on the

d~’~

day of

_________,

1977.

Christan L. Mof

,

lerk

Illinois Pollut

Control Board

PHILIP

Member

the Board

25

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