ILLINOIS POLLUTION CONTROL

BOARD

March

14,

1972

IN

THE

MATTER OF

#R72—1

TRANSCRIPTS

(Procedural

Rule

328)

DISSENTING

OPINION

(BY

JACOB

D.

DUMELLE):

When the Board voted on March

2

to

adopt

this

procedural

rule

which

would

put

the

burden

of

transcript

costs

on

a

citizen

pursuing

an

action

to

abate

a

pollutional

situation,

I

was

on

active duty with

the

United

States

Navy.

The

vote

on

enactment

was

3

to

1;

I

would

have added a further emphatic nay to that roll call about which

I

had previously and publicly informed my fellow Board members.

A

complainant’s cost of t~anscriptcould run from $800 to $1,000 per

day in an ordinary

case which could continue for one or more days.

Amended Rule

328 would require,

in most cases,

that the cost of the

stenographic transcript of an enforcement hearing be borne by

the

parties to the action, both complainant(s)

and respondent(s).

The

proposed

rule would have

the effect of discouraging citizen partici-

pation by virtually precluding

all but extremely affluent persons or

organizations from instituting enforcement actions.

The statute gives

each citizen the right

to sue to abate

a pollution situation and the

rule effectively

takes it away.

Additionally,

the rule places an undue

burden on alleged polluters

forced to pay

for a defense even if

it is

later found that no violation existed.

What was sacrificed with the rule adoption was the magnificent

principle of citizen participation in environmental decisions.

Gone now

is that survivor

of the perilous

and obstacle—strewn

legislative process,

an important purpose of the legislature

in passing the Environmental

Protection Act.

The Board has now enacted

a “procedural”rule that

effectively and nearly completely thwarts citizen access to the environ-

mental decision—making process of this

state.

Whole substantive sections

of the Environmental Protection Act have been rendered meaningless.

The noble experiment that saw the dawn so briefly is now consigned

to

indefinite night.

Gone

is the opportunity for the game warden to take

almost immediate and certainly effective steps

to halt obnoxious water

pollution

(See Hanna v.

Minnesota Paints,

PCB

71-123,

July

26,

1971)

Gone

is

the chance for the civic organization to make its voice heard

and listened to as it set itself to the

task of protecting

Lake Michigan

(See League of Women Voters,

et al

v.

North Shore Sanitary District,

PCB

70-7,

12,

13 and 14, March

31,

1971)

.

Gone is the opportunity for

3

—

723

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students to learn while doing as they attempt to lessen the opacity

of railroad diesel engine exhausts

(See

Youth

for Environmental Sa1v~

tion

v. Chicago, Milwaukee,

St:.

Paul

&

Pacific Railroad,

PCB 71-254,

filed August

31,

1971)

Alternatives which would not have materially impaired

the

pollution fight should have been tried.

The shortage of funds which

precipitated action on the rule could in no way be thought of

as

permanent.

The Governor and several legislators publicly expressed

their interest in enacting the necessary deficiency appropriation upon

the reconvening

of the General Assembly.

Deferring enforcement ~~~riflgs

until after

a deficiency appropriation was obtained would not have

stopped

the state’s pollution abatement effort.

This could likely

have

been accomplished early in the spring legislative session.

As for

situations which required immediate

attention,

the path of injunction

in the courts

is always open.

Further,

the Board should have sought

the opinion of

the Attorney General

as

to whether it was obliged to

continue

its effort even while accumulating

expenses beyond its

budget.

As enacted,

the rule

is somewhat different than the original

proposal.

Added

to the final version

is

a vague

and permissive declara-

tion that “the Board may reassume transcript cost in any class of pro-

ceedings upon receipt of adequate appropriations at any time.”

This

gratuitous

statement particularly suggests that the Board is trifling

with

a principle that should be respected.

Citizen access and citizen

participation in making environmental decisions

is

a newly created right

the right to bring an action before

the Pollution Control Board to

abate

an occurrence of pollution

——

and should have such stature that it

could be regulated only by

the legislature itself.

I am deeply

concerned

in this matter with

the ease with which the Board has tampered with

the

design and intent of the legislation.

There are legal arguments

to be made

as

to the invalidity of

the

enacted rule but

I will not dwell

on them here since the Board has

earlier been put on notice that the rule raises serious questions

of

statutory authorization,

due process of

law and equal protection of

the

law

(See Clean Air Coordinating Committee,

et

al v.

Illinois Po1lu~~

Control Board, Docket No.

72L 2209,

filed February

22,

1972)

.

UnqueSt1On~

ably,

the trend of recent court decisions, both civil and criminal,

3-S

to knock out government—erected financial impediments

to non.~afflueflt

persons

seeking

to

vindicate

legal

rights.

I have chosen to restrict

my

comments

chiefly

to

the

public

policy

considerations

which

loom

5°

overwhelmingly

in

this

matter.

The

Governor

of

Illinois

has

recognized

this overriding public policy question in his

recent Special Message on

the Environment where he said that:

It is.. .intolerable for the high cost of

transcripts

to obstruct private citizens

from having access

to the board.

1,1

1/

Special

Message

on

the

Environment

Richard B. Ogilvie,

Governor of Illinois,

Thursday, March

9,

1972,

p.

13

3

—

724

---

Gone entirely now

is

the grand design painstakingly preserved

when the Act was assaulted by its special interest critics from every

quarter.

In its place now

is the principle of the “majestic equality

of the law” about which Anatole France has reminded

us:

“The law,

in its majestic equality,

forbids

the

rich as well

as the poor to sleep

under bridges,

to beg in the streets

and to steal bread.”

Citizens

cannot act on their own but must now wait

for government agencies

to act

to protect the environment,

no matter if the action is slow

or

fast, or half—way

or effective.

The intent of

the Act was saved

from its enemies only to be done in by its

friends.

~

I,

Christan Moffett, Clerk of

thA

Illinois Pollution Control

Board,

h~reby

certify

the

above

Dissenting

Opinion

was

submitted

on

the

iS

“day of March,

1972.

1

Christan L. Moff t~

Clerk

Illinois Pollution Control Board

3

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725

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