ILLINOIS POLLUTION CONTROL BOARD

November 2, 2000

IN THE MATTER OF:

REVISION OF THE BOARD’S

PROCEDURAL RULES: 35 ILL. ADM.

CODE 101-130

)

)

)

)

)

R00-20

(Rulemaking - Procedural)

Proposed Rule. Second Notice.

OPINION OF THE BOARD (by C.A. Manning, G.T. Girard, and E.Z. Kezelis):

The Board today proposes new procedural rules for second notice. The proposed rules

govern how persons initiate and participate in all proceedings before the Board under the

Environmental Protection Act (Act) (415 ILCS 5/1

et seq.

(1998)) and other statutes directing

Board action. The Board developed these proposed rules to more efficiently and effectively

implement the Act and other laws and to make it easier for the public to participate in Board

proceedings.

The Board expects to adopt final procedural rules in December 2000. The final rules will

replace all of the Board’s current procedural rules and all Board resolutions that relate to

procedural matters. The final rules therefore will be the comprehensive source of all of the

Board’s procedural requirements.

The Board expects that the final rules will become effective on January 1, 2001, and will

apply to all proceedings pending as of that date and to all proceedings initiated after that date. To

ensure that the public is most effectively notified of the Board’s change in procedural rules, the

Board directs the Clerk’s Office to immediately begin including in its mailings a notice of the

scheduled change in the Board’s procedures. The notice from the Clerk’s Office will describe

the anticipated applicability of the final rules. It also will explain that the final rules will be

available on the Board’s Web site (www.ipcb.state.il.us) and from the Board’s offices in Chicago

and Springfield. In addition, the Board will post the Clerk’s Office notice on the Web site, along

with the second-notice opinion and order that the Board adopts today.

To aid the public in moving from the Board’s current procedural rules to the new rules,

the Board attaches an appendix as part of this opinion. The appendix lists, on a section-by-

section basis, where the requirements of the Board’s current procedural rules are addressed in the

rules proposed for second notice. The information in the appendix also appears in the second-

notice rules themselves as appendices to the corresponding parts. The Board notes that,

consistent with Section 5-40(c) of the Illinois Administrative Procedure Act (IAPA) (5 ILCS

100/5-40(c) (1998)), the Board will not make any substantive change to the second-notice

version of the procedural rules except in response to an objection or suggestion of the Joint

Committee on Administrative Rules (JCAR).

---

2

In this opinion, the Board first sets forth background information on the proceedings to

revise the procedural rules. The Board then provides an overview of the proposed procedural

rules, including some of the more significant provisions that the Board’s current procedural rules

either do not address or address differently. Lastly, the Board discusses the more significant

changes it is making to the proposed rules from first notice to second notice.

BACKGROUND

On October 3, 1996, the Board issued a proposal for public comment, setting forth

proposed amendments to the Board’s procedural rules. See Revision of the Board’s Procedural

Rules: 35 Ill. Adm. Code 101-130 (October 3, 1996), R97-8. The Board received a significant

number of public comments on that proposal.

Those public comments prompted many of the changes to the procedural rules that the

Board proposed for first notice on March 16, 2000, in this docket, R00-20. See Revision of the

Board’s Procedural Rules: 35 Ill. Adm. Code 101-130 (March 16, 2000), R00-20. The Board’s

first-notice opinion and order have been on the Board’s Web site since March of this year, and

the first-notice rules were published in the

Illinois Register

on March 31, 2000 (24 Ill. Reg.

5173-5606).

Since the Board adopted its first-notice opinion and order, the Board has received further

comment, both oral and written, from persons who regularly appear before the Board. These

comments led to many of the changes set forth in the rules that the Board proposes for second

notice today.

The Board held three public hearings on the first-notice rules (April 11, May 4, and July

10, 2000). The Board posted the transcripts of those hearings on its Web site. The Board

appreciates the insights of all of those who participated at hearing and lists those commentors in

the order that the Board heard from their respective organizations: Deirdre Hirner and LaDonna

Driver on behalf of the Illinois Environmental Regulatory Group (IERG); Lisa Moreno, Susan

Schroeder, Don Sutton, and Deborah Williams of the Illinois Environmental Protection Agency

(Agency); James Harrington on behalf of the Illinois Steel Group and Ross & Hardies; Thomas

Davis, Chief of the Environmental Bureau of the Attorney General’s Office (AGO); Diana

Jagiella on behalf of the Environmental Law Section Council of the Illinois State Bar Association

(ISBA); and Michael Maher of McKenna, Storer, Rowe, White, and Farrug.

The Board also received 18 written public comments on the rules that it proposed for first

notice. In this proceeding, for the first time, the Board established a public comment page on its

Web site, where the Board posted comments. As noted below, several commentors filed more

than one set of comments. The Board thanks all of the commentors for their thoughtful remarks

and lists those commentors in the order they filed their comments: Sierra Club, Piasa Palisades

Group (Public Comment 1); IERG (Public Comments 2, 15, and 18); the AGO (Public Comment

3); Mayer, Brown & Platt (Public Comment 4); Illinois Steel Group and Ross & Hardies (Public

Comment 5); Cathy Busto (Public Comments 6 and 14); Illinois Fertilizer & Chemical

Association (Public Comment 7); Webber & Thies, P.C. (Public Comment 8); Stephen Hedinger

(Public Comment 9); the Environmental Law Section Council of ISBA (Public Comment 10);

---

3

the Agency (Public Comments 11, 16, and 17); Devro-Teepak, Inc. (Public Comment 12); and

the Chemical Industry Council of Illinois (Public Comment 13).

Finally, the Board expresses its gratitude to all of the Board staff persons, both past and

present, who have worked so tirelessly in this docket and its predecessor docket, R97-8, to revise

the Board’s procedural rules. Those persons have contributed significantly to the proposed rules

and, in doing so, have performed a most valuable service for the Board and for all of those who

will be involved in Board proceedings.

OVERVIEW OF THE PROPOSED RULES

The proposed procedural rules consist of ten parts within Title 35 of the Illinois

Administrative Code: Part 101 (General Rules); Part 102 (Regulatory and Informational

Hearings and Proceedings); Part 103 (Enforcement); Part 104 (Regulatory Relief Mechanisms);

Part 105 (Appeals of Final Decisions of State Agencies); Part 106 (Proceedings Pursuant to

Specific Rules or Statutory Provisions); Part 107 (Petition to Review Pollution Control Facility

Siting Decisions); Part 108 (Administrative Citations); Part 125 (Tax Certifications); and Part

130 (Identification and Protection of Trade Secrets and Other Non-Disclosable Information).

The following is an overview of each part and a description of some of the more significant

provisions in the proposed rules that are either not addressed or addressed differently in the

Board’s current procedural rules.

Part 101: General Rules

Part 101 has nine subparts. The Board first describes the general structure of Part 101

and then addresses each subpart.

General Structure

Part 101 sets forth the general procedural provisions that apply to all Board proceedings,

including adjudicatory and rulemaking proceedings. These general rules apply unless more

specific rules for particular processes supersede them. The balance of the proposed rules (

i.e.

,

Parts 102, 103, 104, 105, 106, 107, 108, 125, and 130) govern specific types of processes.

The Board places into proposed Part 101 not only many provisions of the Board’s current

general procedural rules (see 35 Ill. Adm. Code 101), but also many of the general requirements

for adjudicatory proceedings found in the Board’s current rules on enforcement proceedings (see

35 Ill. Adm. Code 103). Part 101 includes definitions (see Sections 101.200 and 101.202), as

well as provisions on the following: computing time (see Section 101.300); filing documents

(see Section 101.302); serving documents (see Section 101.304); decision deadlines (see Section

101.308); intervention (see Section 101.402); joinder (see Section 101.403); consolidating claims

(see Section 101.406); motions (see Subpart E); hearings, evidence, and discovery (see Subpart

F); sanctions (see Subpart H); and review of final Board opinions and orders (see Subpart I).

Subpart A: General Provisions

---

4

Over the course of the Board’s 30-year history, the Board occasionally has adopted

resolutions to address various procedural matters. A person appearing before the Board therefore

may have to refer not only to the Board’s procedural rules, but also to these Board resolutions.

Section 101.104 of the new procedural rules repeals all Board resolutions relating to procedural

matters. The new procedural rules therefore codify in one place all of the Board’s procedural

requirements.

To ensure that persons using the rules understand the nature of the Board’s authority, the

Board sets forth its authority to act in regulatory and adjudicatory matters as Section 5 of the Act

(415 ILCS 5/5 (1998)) provides. See Section 101.106. The next provision in Subpart A explains

the context in which the Board uses that authority. See Section 101.108. The Board has two

primary functions: its regulatory function (promulgating environmental regulations and

standards for the State) and its adjudicatory function (adjudicating contested environmental

cases). Section 101.108(b) provides examples of the more common types of regulatory

proceedings that the Board conducts: identical-in-substance; Clean Air Act/fast-track; federally

required rulemaking; general rulemaking; and site-specific rulemaking. Section 101.108(b)

further directs the reader to Part 102 for specific procedural rules governing the Board’s

regulatory proceedings.

Section 101.108(c) provides examples of the more common types of adjudicatory

proceedings that the Board conducts, and directs the reader to the procedural rules for those types

of proceedings: enforcement proceedings (Part 103); variance petitions and adjusted standard

petitions (Part 104); permit appeals and underground storage tank appeals (Part 105); pollution

control facility siting appeals (Part 107); and administrative citations (Part 108). See Section

101.108(c).

In Section 101.110, the Board codifies one of the philosophical underpinnings of the

Act—that the public may participate in various types of environmental matters before the Board.

The rules state that the Board encourages the public to participate in all proceedings. The rules

also state that the extent to which the public may participate in the various types of Board

proceedings is explained in the specific rules governing those proceedings. See Section

101.110(a), (b).

Section 101.110(c) addresses how an interested person who is not a party may file an

amicus curiae

(“friend of the court”) brief. The rule states that the brief must consist of

argument only and cannot be used to bring new facts into the record.

The Board for the first time addresses the ability of current or former Board Members or

Board employees to represent others in Board proceedings. Without exception, the rules prohibit

current Board Members and Board employees from representing others in any Board proceeding.

Former Board Members and Board employees cannot represent others in any Board proceeding

in which he or she participated personally and substantially while with the Board, unless the

Board and all parties or proponents consent in writing after disclosure. The rules also provide

that the Board may disqualify a hearing officer for bias or conflict of interest, as the IAPA (5

ILCS 100/10-30(b) (1998)) requires. See Section 101.112.

---

5

Subpart B: Definitions

To prevent the public from unwittingly attempting to improperly contact a Board Member

or Board employee, the Board for the first time defines “

ex parte

communication.” See Section

101.202. The Board restricts

ex parte

communications in Section 101.114.

To make the Board’s processes more understandable, the Board defines many terms

commonly used in Board proceedings that are not defined in the current procedural rules. These

terms include “brief,” “complaint,” “duplicitous,” “decision deadline,” “filing,” “hearing,”

“frivolous,” “petition,” “public comment,” “service,” and “service list.” See Section 101.202.

For convenience, the Board places in one section many definitions currently located throughout

the various parts of the Board’s existing procedural rules.

Subpart C: Computation of Time, Filing, Service of Documents, and Statutory Decision

Deadlines

The Board requires all persons to use recycled paper for their filings. See Section

101.302(g). The Board also takes several steps to reduce the amount of paper required to be filed

with the Board. Instead of an original and nine copies, the Board now will require an original

and four copies of (1) Agency and Office of the State Fire Marshal (OSFM) records under Part

105 appeals and (2) local pollution control facility siting records under Part 107 appeals. See

Section 101.302(h). The Board also eliminates the requirement to file discovery documents,

except in certain circumstances, and requires that, when feasible, persons print on both sides of

each page of their filings. See Section 101.302(g), (i).

The Board is working on a new project which, if funded, would allow the Board to

receive and disseminate documents electronically on a regular basis. Until that project is

complete, the Board cannot further reduce the number of copies of a document that must be filed

with the original. At this time, the Board includes a new provision that would allow filing

electronically or by facsimile, but only upon the prior approval of the Clerk or hearing officer. In

addition, given their time-sensitive nature, the Board specifically allows the Agency to file its

provisional variance recommendations electronically or by facsimile. See Section 101.302(d).

In Section 101.308, the Board adds new provisions on waiving decision deadlines. The

rules allow a petitioner who has provided an “open waiver” to reinstate the 120-day decision

period. The rules specify the minimum length of “time certain” waivers filed before hearing.

The rules also clarify that a waiver does not preclude the Board from deciding a matter before the

decision deadline, and that a party may at any time move the Board to set a hearing or decide a

case. See Section 101.308.

Subpart D: Parties, Joinder, and Consolidation

The Board clarifies that a person must be a licensed attorney to appear before the Board

on behalf of others in an adjudicatory proceeding. This contrasts with the Board’s current

procedural rule (see 35 Ill. Adm. Code 101.107), which generally allows officers or employees

who are not attorneys to represent corporations in proceedings other than enforcement actions.

---

6

The Board bases the new provision (see Section 101.400(a)(2)) on the Attorney Act (705 ILCS

205/1

et seq.

(1998)), the Corporation Practice of Law Prohibition Act (705 ILCS 220/1

et seq.

(1998)), and Illinois case law. In addition, the new provision is consistent with the recent line of

Board decisions that found various activities in adjudicatory proceedings before the Board to

constitute the practice of law. See,

e.g.

,

In re

Petition of Recycle Technologies, Inc. for an

Adjusted Standard Under 35 Ill. Adm. Code 721.131(c) (July 10, 1997), AS 97-9.

The Board emphasizes that individuals may represent themselves in adjudicatory

proceedings before the Board. The Board also draws an important distinction between its quasi-

judicial adjudicatory function and its quasi-legislative regulatory function. Because participation

in regulatory proceedings does not constitute the “practice of law,” one may represent others in a

regulatory proceeding without being an attorney.

The current procedural rules on intervention and joinder are located in the enforcement

provisions. See 35 Ill. Adm. Code 103.121(c), 103.142. While tailored to the Board's

adjudicatory proceedings, the proposed provisions on intervention and joinder more closely

mirror those of the Illinois Code of Civil Procedure (see 735 ILCS 5/2-405-2-408 (1998)). The

Board’s proposed provisions may apply in any type of adjudicatory proceeding.

In Section 101.404, the Board codifies the Agency’s role as a “party in interest” when the

Board, under Section 30 of the Act (415 ILCS 5/30 (1998)), requests the Agency to investigate

an alleged violation.

Subpart E: Motions

The Board extends the amount of time that a party has to respond to a motion from 7 to

14 days. See Section 101.500(d). The rules also state that any objection to a hearing officer’s

ruling made at hearing, and any oral motion to the Board made at hearing, will be deemed waived

if not filed within 14 days after the Board receives the hearing transcript. See Section 101.502.

In Section 101.506, the Board extends the amount of time to file a motion to strike, dismiss, or

challenge the sufficiency of any pleading to 30 days.

The Board establishes new provisions on motions to cancel hearings. The hearing officer

will grant the motion only if a pending decision deadline would allow the Board sufficient time

to reschedule, re-notice if applicable, deliberate, and decide the matter. See Section 101.510.

The Board also addresses motions for expedited review (see Section 101.512), motions to

stay proceedings (see Section 101.514), motions for summary judgment (see Section 101.516),

motions for interlocutory appeal of hearing officer orders (see Section 101.518), and motions to

reconsider (see Section 101.520).

Subpart F: Hearings, Evidence, and Discovery

Section 101.600 codifies current Board practices with respect to holding hearings,

including complying with the Americans with Disabilities Act (42 U.S.C. § 12101

et seq.

). The

Board adds a new provision addressing the hearing officer’s ability to regulate the use of audio

---

7

and video recording equipment at hearing to avoid disrupting the hearing. The provision does

not preclude persons from retaining their own court reporters, if they do not disrupt the

proceeding. See Section 101.606. Section 101.608 clarifies that if a respondent fails to appear at

hearing, the complainant or petitioner nevertheless must prove its

prima facie

case to prevail on

the merits.

The Board adds a new provision to assist

pro se

parties when faced with requests to

admit. The Board requires the party serving the request to include language in the first paragraph

of the request explaining the consequences of failing to respond (

i.e.

, the facts requested are

deemed admitted). The notice also suggests that the recipient direct any of his or her questions to

the hearing officer or an attorney. See Section 101.618(c).

The Board adds a new provision explaining how participants, including the general

public, may participate before, at, and after adjudicatory hearings. Participants may make oral

statements at hearing. Participants may submit written statements before or at hearing.

Participants also may file public comments and

amicus curiae

briefs after hearing. See Section

101.628.

Subpart G: Oral Argument

The Board adds new provisions on oral argument. Parties may argue orally before the

Board only with the Board’s permission. The provisions address the purpose of oral argument,

the contents of a motion for oral argument, and the Board’s need to deny the motion if a statutory

decision deadline does not allow sufficient time for oral argument. See Section 101.700.

Because of time constraints, the Board presently does not anticipate allowing oral argument

routinely.

Subpart H: Sanctions

Sanctions that the Board may order include staying a proceeding, barring filings or a

claim or defense, and striking pleadings. In the non-exhaustive list of potential sanctions, the

rules no longer refer to the offending person paying reasonable expenses. See Section

101.800(b).

Subpart I: Review of Final Board Opinions and Orders

The Board clarifies that moving the Board to reconsider its final opinion and order is not

a prerequisite to appealing the Board’s decision to the Appellate Court. See Section 101.904(f).

Part 102: Regulatory and Informational Hearings and Proceedings

As in the existing rules, Part 102 addresses the Board’s regulatory and informational

proceedings, which are quasi-legislative in nature. Part 102 has seven subparts, each of which

the Board discusses below.

Subpart A: General Provisions; Subpart B: Regulations of General Applicability, Resource

Conservation and Recovery Act (RCRA) Amendments, and Site-Specific Regulations

---

8

Generally, these rules set forth, as necessary, the rulemaking requirements of the IAPA

(first-notice publication in the

Illinois Register

; second-notice review by JCAR; filing with and

publication by the Administrative

 

Code Unit of the Secretary of State), along with those of the

Act (notice; hearing; entry of opinion and order).

Subpart A identifies the different types of regulatory proposals (see Section 102.106) and

describes how to file written public comments (see Section 102.208). Subpart A also states that

the Board may conduct other noncontested or informational hearings, including inquiry hearings.

See Section 102.112.

The Board requires in Subpart B that when a State agency is the rulemaking proponent,

the State agency must submit the proposed rule electronically. See,

e.g.

, Section 102.202(i). The

Board adds this requirement elsewhere in Part 102 when the rules specify the required contents

of a proposal. In addition, each proponent seeking to amend Board rules must certify that the

proposal amends the most recent version of the rules as published on the Board’s Web site or as

received from the Clerk. See Section 102.202(h).

Subpart C: Clean Air Act Amendments (CAAA) Fast-Track Rulemaking

These provisions implement Section 28.5 of the Act (415 ILCS 5/28.5 (1998)), which

establishes a rulemaking procedure to speed adoption of Agency-proposed rules required by the

federal Clean Air Act (42 U.S.C. § 7401

et seq.

), as amended. The Board adds a provision to

reflect amendments to Section 27(b) of the Act (415 ILCS 5/27(b) (1998)). Consistent with

Section 28.5 and these amendments, the Board will hold a second hearing to, at a minimum,

consider the Department of Commerce and Community Affairs’ (DCCA) economic impact study

of the proposed rules, or admit into the record DCCA’s statement declining to conduct a study.

Subpart D: Service and Filing of Documents, Motions, Production of Information, Subpoenas,

Prehearing Conferences, and Hearings

Some of the provisions in Subpart D simply refer to Part 101, including provisions on

service, filing, and motions. See Sections 102.400 and 102.402. Subpart D also addresses

prehearing conferences, for which Section 27(d) of the Act (415 ILCS 5/27(d) (1998))

specifically provides. See Sections 102.404-102.408.

In addition, the Board adds a new provision to address the requirements of Section 27(b)

of the Act (415 ILCS 5/27(b) (1998)), noted above, with respect to requesting that DCCA

conduct a study of the economic impact of the proposed rules. The Board must request that

DCCA conduct an economic impact study. The Board must conduct at least one hearing on the

economic impact of proposed rules. At this hearing, the Board must, among other things,

consider DCCA’s study or present any explanation DCCA gives for not producing a study. See

Section 102.414.

Subpart E: Certification of Required Rules

Subpart E addresses the procedures associated with the Agency certifying that its

proposed rule is federally required pursuant to Section 28.2 of the Act (415 ILCS 5/28.2 (1998)).

---

9

These include procedures by which a person can challenge the Agency’s certification. See

Section 102.502.

Subpart F: Board Action; Subpart G: Motion for Reconsideration and Appeal

These are similar to provisions in Part 101, but are tailored to rulemakings. Subpart F

addresses requirements applicable when the Board revises proposed rules, and when the Board

adopts first-notice, second-notice, and final opinions and orders. See Sections 102.600-102.608.

Subpart F also addresses Board action with respect to identical-in-substance rules, emergency

rules, and peremptory rules. See Sections 102.610-102.614.

Subpart G identifies the limits on the Board’s ability to reconsider rules already adopted,

and states that Board orders may be appealed to the Appellate Court pursuant to Sections 29 and

41 of the Act (415 ILCS 5/29, 41 (1998)). See Sections 102.702, 102.706.

Part 103: Enforcement

Proposed Part 103 continues to apply to enforcement proceedings. The Board

significantly streamlines this Part by moving to Part 101 the provisions of the current 35 Ill.

Adm. Code 103 that are more general and should apply to all adjudicatory proceedings.

Proposed Part 103 has five subparts, which the Board addresses in turn.

Subpart A: General Provisions

Section 103.100 explains that Part 103 applies to proceedings in which complaints, filed

under Section 31 of the Act (415 ILCS 5/31 (1998)), allege violations of the Act, regulations,

permits, or Board orders.

Subpart B: Complaint, Request for Informal Agency Investigation, Service, and Authorization of

Hearing

Section 103.200 states that any person may file a complaint. The person filing the

complaint is the complainant, while the alleged violator is the respondent. The Agency may

appear as a “party in interest” because of a Board request that the Agency investigate under

Section 30 of the Act (415 ILCS 5/30 (1998)). See Section 103.202.

Section 103.204(d) codifies a major change to current practice before the Board. As

proposed, all material allegations of a complaint will be taken as admitted if the respondent either

files no answer or files an answer that fails to specifically deny the allegations, unless the

respondent asserts a lack of knowledge sufficient to form a belief. This change makes the

Board’s rule more consistent with Section 2-610 of the Civil Practice Law (735 ILCS 5/2-610

(1998)) (compare current Section 103.122(d)).

The rule stays the 60-day period to file an answer when the respondent timely files certain

motions challenging the complaint. See Section 103.204(e). The Board also includes in Section

103.204(f) language similar to that in Section 101.618(c). The new language requires that all

notices of complaints notify the respondent of the consequences of failing to respond to the

---

10

complaint and that questions should be directed to the hearing officer, the Clerk’s Office, or an

attorney.

The Board adds Section 103.206 based upon its recent experiences with multi-party

litigation. The increasing complexity of enforcement litigation has necessitated that the Board

develop detailed procedures with respect to joinder, counter-complaints, cross-complaints, and

third-party complaints.

The Board sets forth procedures for adding a non-party as a respondent to an enforcement

proceeding when the Board cannot completely determine a controversy without the presence of

the non-party. The Board may order the non-party to be added on the Board’s motion or a

respondent’s motion. See Section 103.206(a). The Board then will grant the complainant

permission to file an amended complaint that sets forth a claim against the added respondent.

See Section 103.206(b).

Section 103.206 also contains procedures for filing counter-complaints, cross-complaints,

and third-party complaints. The Board defines each of these terms in Section 101.202. Section

103.206 requires the party who wishes to file the pleading to file a motion requesting the Board’s

permission to do so. See Section 103.206(d). The counter-complaint, cross-complaint, or third-

party complaint must set forth a claim that arises out of the occurrence or occurrences that are the

subject of the proceeding and must meet the requirements of Section 103.204. See Section

103.206(e). Section 103.206 likewise addresses filing an amendment to a complaint, counter-

complaint, cross-complaint, or third-party complaint that sets forth a new or modified claim

against another person.

Section 103.208 replaces a Board resolution that established an informal citizen’s

complaint process. See

In re

Duplicitous or Frivolous Determinations (June 8, 1989), RES 89-2.

The resolution will be repealed when the Board promulgates these rules.

As proposed, any person may request that the Agency conduct an informal investigation

by submitting a request to the Board. See Section 103.208(a). This request, distinct from filing a

complaint under Section 31 of the Act (415 ILCS 5/31 (1998)), allows persons to alert the

Agency to potential areas of environmental concern without engaging in formal litigation. The

Board will forward the request to the Agency with a copy of the transmittal to the person

requesting the investigation. The Agency must send the Board an acknowledgment that it

received the request. See Section 103.208(b). This approach in many ways codifies the current

informal complaint process.

Section 103.212 codifies the current practice of automatically setting all State

enforcement actions for hearing. It also allows a respondent in a citizen enforcement action 30

days in which to file a motion alleging that the complaint is “duplicitous or frivolous,” and states

that the motion stays the deadline for filing an answer to the complaint. The Section also

contemplates that the Board might hold hearings on discrete issues, such as violation only and

then remedy only.

Subpart C: Settlement Procedure

---

11

This Subpart codifies current practice and the requirements of Section 31 of the Act (415

ILCS 5/31 (1998)). Section 31(c) applies to State enforcement actions. Section 31(c)(2)

provides that settling parties to State enforcement actions may move the Board to waive the

hearing requirement of Section 31(c)(1). Unless the Board decides to hold a hearing, it will

provide public notice of the proposed settlement in a newspaper. If the Board receives a written

hearing request within 21 days after publication, the Board will deny the requested waiver and

hold a hearing. See Section 103.300.

Subpart C also addresses the required contents of proposed settlements (see Section

103.302), the manner in which the Board will hold hearings on proposed settlements (see Section

103.304), and Board orders on proposed settlements (see Section 103.306).

The Act does not address settlement of citizen enforcement actions. Accordingly, the

Board will hold a hearing when parties to a citizen enforcement action ask the Board to approve

the terms of a proposed settlement. If the parties do not desire a hearing on the proposed

settlement, they may file a motion to dismiss the case.

Subpart D: Proceedings Involving RCRA Permits

Subpart D applies when the Board finds in an interim order that an enforcement

proceeding involves issuing or modifying a RCRA permit. The procedures provide methods by

which the Board will formulate a compliance plan and, if necessary, direct that a RCRA permit

be issued or modified. See Section 103.400. The rules also detail how the Agency will be

involved in the proceeding and how the United States Environmental Protection Agency

(USEPA) and the public will be notified of the matter and provided an opportunity to participate.

The Board originally adopted these provisions as identical-in-substance rules under

Section 7.2 of the Act (415 ILCS 5/7.2 (1998)). The rules are required to retain federal

authorization of the State’s RCRA enforcement and funding program.

---

12

Subpart E: Imposition of Penalties, Fees, and Costs

Section 103.502 states that the Board will determine civil penalties pursuant to Sections

33(c) and 42 of the Act (415 ILCS 5/33(c), 42 (1998)). Section 103.504 describes how civil

penalties must be paid and how they will accrue interest if not paid on time.

Part 104: Regulatory Relief Mechanisms

Part 104 addresses the three core adjudicatory proceedings for obtaining relief from

generally applicable regulations: variances (Subpart B); provisional variances (Subpart C); and

adjusted standards (Subpart D). The Board discusses these provisions below.

Subpart B: Variances

This Subpart contains provisions on petition contents, notices, Agency recommendations,

stipulations, objections, amendments, decision deadlines, hearings, Board decisions, conditions,

and certificates of acceptance. Several provisions warrant highlighting.

The Board may extend the terms of variances. Section 104.210 applies to a petitioner

seeking to have the term of a variance extension commence at the end of the existing variance’s

term. That Section now requires that the petitioner file the petition to extend the variance no

later than 120 days before the variance expires, unless the petitioner demonstrates that it filed as

soon as practicable after learning that it could not meet the compliance timeframe under the

existing variance.

Section 104.212 clarifies that a petitioner may seek, by motion, to modify compliance

dates in a variance when the modification does not extend the variance term. Requests to extend

variances, however, proceed as new cases. See Section 104.210.

In Section 104.214(a), the Board extends from 10 to 14 days the amount of time that the

Agency has to publish notice of a variance petition after the petition is filed. In Section

104.216(b), the Board changes the deadline for the Agency to file its recommendation on the

variance petition from the current 30 days after the petition is filed to the following: unless the

Board or hearing officer orders otherwise, the Agency must file its recommendation within 45

days after the petition is filed, or if a hearing has been scheduled, at least 30 days before hearing,

whichever is earlier. The Board also extends from 7 to 14 days the amount of time that a

petitioner has to respond to the Agency’s recommendation. See Section 104.220.

Section 104.224 describes in detail the opportunities for the public to participate in

variance proceedings. Section 104.240 states that each order in which the Board grants a

variance will include a certificate of acceptance. A variance and its conditions are not binding

until the petitioner files the executed certificate with the Board and serves it on the Agency. If

the petitioner fails to timely file and serve the executed certificate, the variance is void.

Executing the certificate is not a prerequisite to moving the Board to reconsider its decision or

appealing the Board’s decision.

Subpart C: Provisional Variances

---

13

This Subpart largely sets forth language from Sections 35(b), 36(c), and 37(b) of the Act

(415 ILCS 5/35(b), 36(c), 37(b) (1998)) with respect to Board action on provisional variances,

Agency action on provisional variance requests, notice, and the terms of provisional variances.

See Sections 104.302-104.308. Section 104.310 states that the Board will not issue a provisional

variance to the extent that the petitioner already holds a variance from the same requirement for

the same time period—that is, the Board will not grant duplicate relief.

Subpart D: Adjusted Standards

This Subpart contains provisions on Agency as co-petitioner, petition contents, notices,

petition filings as stays, Agency recommendations, amendments, hearings, burden of proof, and

Board action.

The Board changes the deadline for the Agency to file its recommendation on the petition

for an adjusted standard from the current 30 days after the petition is filed to the following:

unless the Board or hearing officer orders otherwise, the Agency must file its recommendation

within 45 days after the petition is filed, or if a hearing has been scheduled, at least 30 days

before hearing, whichever is earlier. See Section 104.416(a).

Section 104.420 clarifies that when all parties and participants who have requested a

hearing withdraw those requests, the Board will not hold a hearing unless the Board deems it

advisable.

Part 105: Appeals of Final Decisions of State Agencies

Part 105 covers Board review of final decisions of the Agency under various programs

and final decisions of the OSFM with respect to the Underground Storage Tank (UST) Fund. It

contains provisions on petitions for review, filing agency decision records, and hearings.

In Part 105, the Board eliminates the requirements that the Agency and the OSFM file

their respective decision records within 14 days after notice of a petition for review. Section

105.116 requires the record to be filed within 30 days after the petition is filed, unless Part 105

provides otherwise or the Board or hearing officer orders otherwise. If either agency wishes to

seek additional time to file the record, however, it must file a request for extension before the

date on which the record is due.

The Board has procedures for appeals of OSFM UST Fund decisions. See 35 Ill. Adm.

Code 107. For the first time, however, the Board establishes specific procedural rules for appeals

of Agency leaking underground storage tank (LUST) decisions. See Part 105.Subpart D. In

addition, consistent with Section 40(e) of the Act (415 ILCS 5/40(e) (1998)), the Board provides

for third-party appeals of National Pollutant Discharge Elimination System (NPDES) permit

decisions. See Section 105.204(b). The Board also provides for appeal of an Agency decision to

terminate an Environmental Management System Agreement (EMSA) under Section 52.3-4(b) of

the Act (415 ILCS 5/52.3-4(b) (1998)).

In Section 105.208, the Board specifies that the extension of the time in which to file

certain petitions for review may be for any period to which the parties agree that does not exceed

---

14

125 days from the date of service or issuance of the Agency’s final decision. The 90-day

extension adds to the 35-day appeal period, which would allow for a total of 125 days in which to

petition for review.

Part 106: Proceedings Pursuant to Specific Rules or Statutory Provisions

Part 106 addresses proceedings pursuant to specific rules or statutory provisions. Part

106 contains the following: heated effluent, artificial cooling lake, and sulfur dioxide

demonstrations (Subpart B); water well setback exception procedures (Subpart C); revocation of

Clean Air Act Permit Program (CAAPP) permits (Subpart D); maximum achievable control

technology determinations (Subpart E); culpability determinations for particulate matter less than

or equal to 10 microns (PM-10) (Subpart F); and involuntary termination of EMSAs (Subpart G).

Part 107: Petition to Review Pollution Control Facility Siting Decisions

For the first time, the Board will have procedural rules that specifically address appeals of

local government decisions on siting new pollution control facilities. The rendering and review

of local siting decisions are provided for in Sections 39.2 and 40.1 of the Act (415 ILCS 5/39.2,

40.1 (1998)).

Subpart B of Part 107 addresses petitions for the Board to review local siting decisions,

including who may file a petition. Siting applicants may petition for review of siting denial or a

condition of siting approval. See Section 107.200(a). Any person who participated in the local

public hearing and who is so located as to be affected by the proposed facility may petition for

review of siting approval. See Section 107.200(b).

In Subpart C, the Board instructs the county or municipal clerk how to file the local siting

decision record. The Board previously had to set forth these instructions in a Board order

accepting the petition for hearing. Subpart D addresses the hearing before the Board, including

how the public can participate. Subpart E contains provisions on the Board’s review, including

the decision deadline.

Part 108: Administrative Citations

For the first time, the Board establishes procedural rules that specifically address appeals

of administrative citations. The issuance and appeal of administrative citations are addressed in

Sections 31.1 and 42(b)(4) and (4-5) of the Act (415 ILCS 5/31.1, 42(b)(4), (4-5) (1998)).

Under the Act, the Agency may issue administrative citations. The Agency also may

delegate its administrative citation authority to a unit of local government, which then may issue

administrative citations. See 415 ILCS 5/4(r), 31.1(b) (1998). The Board requires that units of

local government file these delegation agreements annually with the Board. See Section

108.200(b). In Subpart B, the Board sets forth provisions on how the Agency or delegated unit

of local government issuing the administrative citation must serve it on the alleged violator and

file it with the Board. The Board also provides what the administrative citation must contain.

---

15

See Section 108.202.

Subpart B also addresses requirements for filing a petition with the Board to contest an

administrative citation, and what the petition must contain. See Sections 108.204, 108.206.

Subpart C addresses Board hearings and Subpart D addresses Board decisions.

Subpart E contains provisions on civil penalties, as well as the hearing costs of the Board,

the Agency, and the delegated unit of local government. At the beginning of each fiscal year, the

Board will make available, in its offices and on its Web site, a schedule of the Board’s hearing

costs for administrative citations. See Section 108.504.

Part 125: Tax Certifications

Proposed Part 125 addresses how the Board will certify “pollution control facilities” and

“low sulfur dioxide emission coal fueled devices” for preferential tax treatment under the

Property Tax Code (35 ILCS 200/11-5

et seq.

(1998)). The Board has no existing procedural

rules that specifically address tax certifications. Currently, persons apply to the Agency for tax

certification and the Agency issues or denies the certificate. The applicant may appeal the

Agency’s decision to the Board.

Under Part 125, persons will continue to submit tax certification applications to the

Agency. See Section 125.202. After reviewing the application, the Agency must file a

recommendation with the Board that the Board issue or deny certification. See Section 125.204.

Consistent with the Property Tax Code, the Board will issue or deny the certificate. See Section

125.216. If the applicant wishes to contest the Agency’s recommendation to deny certification, it

must file a petition to contest with the Board within 35 days after the Agency serves the

recommendation on the applicant. See Section 125.206. Generally, if the applicant timely files

the petition, the Agency must file the record on which it based its recommendation, and the

Board will hold a public hearing. See Sections 125.208, 125.210. Ultimately, whether or not the

applicant contests the Agency’s recommendation, the Board will issue an order granting or

denying tax certification. See Section 125.216.

As Section 11-30 of the Property Tax Code (35 ILCS 200/11-30 (1998)) provides, the

Board, after notice to the certificate holder and an opportunity for a hearing, may revoke or

modify a certificate in several circumstances. See Section 125.216(c). These circumstances

include those when the certificate was obtained by fraud or misrepresentation, or when the

facility to which the certificate applies is no longer used for the primary purpose of pollution

control and is being used for a different purpose. See Section 125.216(c)(1), (3). The Board may

learn of the circumstances through any credible filing. See Reed-Custer Community Unit School

District No. 255-U v. Pollution Control Board, Commonwealth Edison Co., and the Illinois

Environmental Protection Agency, 232 Ill. App. 3d 571, 597 N.E.2d 802 (1st Dist. 1992) (school

district alleged that certificate was obtained by fraud or misrepresentation).

Part 130: Identification and Protection of Trade Secrets and Other Non-Disclosable Information

---