ILLINOIS POLLUTION CONTROL BOARD
October 10, 1974
IN MATTER OF ADOPTION OF
REVISED PROCEL)URAL RULES OF THE
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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.
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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.
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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.
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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
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Illinois Pollution
C
ol Board
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