ILLINOIS POLLUTION CONTROL BOARD
    October 10, 1974
    IN MATTER OF ADOPTION OF
    REVISED PROCEL)URAL RULES OF THE
    )
    R 73-14
    POLLUTION CONTROL BOARD
    OPINION OF THE
    BOARD
    (by Mr. Dumelle):
    Section 26 of the Environmental Protection Act provides that the
    Board may adopt such procedural rules as may be necessary to accomplish
    the purposes of the Act.
    Procedural rules pursuant to this authoriza-
    tion were adopted by the Board on October 16,
    1970.
    The basic
    structure
    provided for general rules,
    rules relating to regulation hearings which
    were captioned “Non—adjudicative Proceedings”, and specific sections
    dealing with procedures in enforcement, variance and permit proceed-
    ings.
    The last section contained canons of ethics with respect to
    financial disclosure, ex parte contacts and improper publicity.
    The
    foregoing Procedural Rules maintained for a period in excess of three
    years during which time the functions and procedures of the Board
    became more clearly defined and the appropriateness of the Rules with
    respect to the Board’s function became subjectively ascertainable.
    As in the case of every new administrative Agency, this was
    a
    period of testing and analysis to determine the appropriateness of the
    Rules as functional tools to facilitate and further the Board’s opera-
    tion.
    As would be expected, the Board’s developmental process over
    the three—year period suggested the desirability of some modification
    in the Procedural Rules, although it is fair to say that the original
    enactment admirably served its purpose and the refinements that appear
    appropriate, do not represent any significant departure from the original
    structure or content.
    On December
    7,
    1973,
    the Board in Newsletter #77 proposed revi-
    sions in the Procedural Rules and invited comment with respect to the
    proposal.
    As a result of this publication, comments were received
    which were highly informative and instructive to the Board in con-
    cluding what modifications should be made in the Rules.
    Particular
    recognition is paid to the following organizations, companies and in-
    dividuals, whose input in this procedure were of extreme value.
    Granite City Steel Company, Granite City,
    Illinois.
    Leah Hamilton of the law
    firm
    of Jenner
    & Block,
    Chicago, Illinois.
    Joseph
    S. Wright of the law firm of Hackbert, Rooks,
    Pitts,
    Fullagar and Poust,
    Chicago, Illinois.
    14
    155

    James
    S.
    Lernna of the law firm of Lemna and Lee,
    Tuscola, Illinois.
    Richard
    W.
    Cosby and Michael A. Benedetto, Jr. and
    other members of the Illinois Attorney General’s
    Environmental Division.
    John Parker, former member of the Illinois Pollution
    Control Board.
    George
    E. Bullwinkel of the law
    firm
    of Price, Cushman,
    Keck,
    Mahin & Cate, Chicago,
    Illinois.
    Staff members of the Illinois Environmental Protection
    Agency and all Administrative Assistants
    to members of
    the Pollution Control Board.
    The basic structure of the Procedural Rules remain the same as
    originally adopted.
    The overriding objective of the revisions is
    to facilitate procedures with respect to motions, hearings and form
    of orders where experience over the period of the Board’s existence
    had indicated improvements would be appropriate.
    The final form of
    Procedural Rules as revised was adopted on February 14, 1974.
    News-
    letter #81 dated February 25, 1974
    sets forth the changes that took
    place between the original proposal of December 7,
    1973 contained
    in Newsletter
    #77 and the Rules as ultimately adopted.
    It should be
    noted that the Board in the February 14, 1974 revision did not incor-
    porate those Rules necessary to accommodate the new NPDES program
    because at that time the Board’s NPDES regulations had not been
    adopted.
    Reference to Newsletters #77 and #81 Supra.
    set forth in
    detail the significant modifications of the original Rules resulting
    from the revision as adopted.
    Part
    I has been modified and improved to both simplify and speci-
    fy certain aspects of the filing procedures inherent in the Board’s
    operation, in some instances limiting what had previously been an
    inordinate amount of copies for filing, requiring proof of service,
    modifying the nondisclosure procedures and simplifying the obtaining
    of orders and opinions.
    Part
    II has been re-captioned to reflect that it relates to the
    procedures involved in the Regulation hearings conducted by the Board,
    specifies that the hearings are in the nature of legislative hearings,
    and clarifies the function of the Hearing Officer with respect to
    Interrogatories and Subpoenas.
    Certain other changes relating to
    examination procedure,
    stenographic recording,
    time for submission
    of documents and related matters are provided.
    Part III respecting enforcement procedures contains the most
    significant modifications.
    Improvement in procedures for adding addi-
    tional parties is incorporated.
    Rule 304(c)
    (2)
    requires more detailed
    specification in a complaint than had previously been required.
    The
    role of the Hearing Officer is delineated in greater detail.
    —2—
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    156

    Rule
    308 specifies for the first time the motion procedures
    to
    be followed,
    including provisions for service,
    hearings and
    rulings
    by
    the Board.
    Rule
    308(c),
    as
    filed with the
    Secretary of State contained
    a typographical error
    in that the
    party
    filing
    a motion “shall not have
    the right
    to reply, except
    as permitted by
    the Hearing O~TTceror
    the Board.”
    The word
    “not” was deleted in a retyping of the rule.
    Provisions
    respecting the grant of continuances by
    a. Hearing Officer have
    been specified.
    The rules
    relating
    to discovery procedures
    have been modified and expanded,
    as
    have been the roles relating
    to submission
    of witness
    lists and procedures
    for the transcription
    of depositions.
    Rules
    have also been included to comply with
    statutory modification relating to publicly-owned
    or community-
    owned water
    facilities.
    Rule
    318(c)
    contains
    a provision
    requiring the Hearing Officer to make
    a statement
    on the credi-
    bility of witnesses,
    a practice which has been followed but
    not previously incorporated
    in the Rules.
    Additional provisions
    provide
    for default procedures, for reimbursement
    of non-resident
    witnesses and modify the language with respect
    to penalties.
    Rule
    333 improves
    and amplifies
    the procedure
    in settlement
    of enforcement cases
    and requires that
    a hearing he conducted
    on all aspects of the proposed settlement,
    the preparation
    of a
    record and its submission to
    the Board
    for approval.
    Rule 334
    contains
    for the first
    time procedures
    for motions made subse-
    quent
    to final
    orders and provides that this form shall not be
    used
    in lieu of the variance procedure.
    Part
    IV expands
    and details what must be
    set forth
    in
    a
    variance petition, modifies the time
    in which the Agency’s
    recommendation must be
    filed, deletes
    the former provision
    authorizing
    the Board to appoint counsel
    to present
    a
    case
    against
    the petitioner when the Agency has recommended allowance
    and contains provisions
    regarding waiver of
    the 90-day rule
    in which
    a variance decision must be rendered, where continuances
    are sought and where the petition
    is amended.
    Procedures for post-
    order motions
    are likewise provided.
    Former Rule
    504 dealing with permits
    for nuclear facilities
    has been deleted.
    Part VI containing the canons
    of ethics remains
    unchanged.
    Part VII
    is
    a new rule relating to judicial review of
    final
    orders of the Board pursuant
    to Supreme Court Rule
    335 and the
    Administrative Review Act, including express reference
    to the rule
    provisions regarding stay
    of any Board order.
    -3-
    14
    15?

    IVith new Rules to cover NPDES procedures,
    it
    is believed the
    revised Procedural
    Rules will adequately serve the purpose of
    enabling litigants and the Board to expeditiously dispose
    of the
    Board’s business consistent with the direction of the Environmental
    Protection Act and due process requirements of the United States
    and Illinois Constitutions.
    Consistent with
    the policy which
    led
    to
    this revision,
    it
    is
    the intent
    of the Board to periodically
    review
    its Procedural Rules
    and to revise them when necessary.
    I, Christan
    L. Moffett, Clerk of the Illinois Pollution Control
    Board, hereby certify the above Opinio
    was adopted on the
    _______
    day of October, 1974 by a vote of
    —.
    Illinois Pollution
    C
    ol Board
    -4-
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