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.
ORDER OF THE BOARD (by C.A. Manning, G.T. Girard, and E.Z. Kezelis):
SUMMARY OF TODAY’S ACTION
In this order, the Board proceeds to second notice on its proposed procedural rules (35 Ill. Adm. Code 101-
130) and on the repeal of its existing procedural rules (35 Ill. Adm. Code 101-120). The Board supports this order in
an opinion also entered today.
The Board directs the Clerk to file the proposed rules and repealers with the Joint Committee on
Administrative Rules. The complete text of the proposed rules follows. Additions to the first notice rules are
underlined; deletions from the first notice rules are stricken through.
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE A: GENERAL PROVISIONS
CHAPTER I: POLLUTION CONTROL BOARD
PART 101
GENERAL RULES
SUBPART A: GENERAL PROVISIONS
Section
101.100
Applicability
101.102
Severability
101.104
Repeals
101.106
Board Authority
101.108
Board Proceedings
101.110
Public Participation
101.112
Bias and Conflict of Interest
101.114
Ex Parte Communications
SUBPART B: DEFINITIONS
Section
101.200
Definitions Contained in the Act
101.202
Definitions for Board’s Procedural Rules
SUBPART C: COMPUTATION OF TIME, FILING, SERVICE OF DOCUMENTS, AND STATUTORY DECISION
DEADLINES
Section
101.300
Computation of Time
101.302
Filing of Documents
2
101.304
Service of Documents
101.306
Incorporation of Documents by Reference
101.308
Statutory Decision Deadlines and Waiver of Deadlines
SUBPART D: PARTIES, JOINDER, AND CONSOLIDATION
Section
101.400
Appearances, Withdrawals, and Substitutions of Attorneys in Adjudicatory Proceedings
101.402
Intervention of Parties
101.403
Joinder of Parties
101.404
Agency as a Party in Interest
101.406
Consolidation of Claims
101.408
Severance of Claims
SUBPART E: MOTIONS
Section
101.500
Filing of Motions and Responses
101.502
Motions Directed to the Hearing Officer
101.504
Contents of Motions and Responses
101.506
Motions Attacking the Sufficiency of the Petition, Complaint, or Other Pleading
101.508
Motions to Board Preliminary to Hearing
101.510
Motions to Cancel Hearing
101.512
Motions for Expedited Review
101.514
Motions to Stay Proceedings
101.516
Motions for Summary Judgment
101.518
Motions for Interlocutory Appeal from Hearing Officer Orders
101.520
Motions for Reconsideration
101.522
Motions for Extension of Time
SUBPART F: HEARINGS, EVIDENCE, AND DISCOVERY
Section
101.600
Hearings
101.602
Notice of Board Hearings
101.604
Formal Board Transcript
101.606
Informal Recordings of the Proceedings
101.608
Default
101.610
Duties and Authority of the Hearing Officer
101.612
Schedule to Complete the Record
101.614
Production of Information
101.616
Discovery
101.618
Admissions
101.620
Interrogatories
101.622
Subpoenas and Depositions
101.624
Examination of Adverse, Hostile or Unwilling Witnesses
101.626
Information Produced at Hearing
101.628
Statements from Participants
101.630 Official Notice
101.632 Viewing of Premises
SUBPART G: ORAL ARGUMENT
Section
3
101.700
Oral Argument
SUBPART H: SANCTIONS
Section
101.800
Sanctions for Failure to Comply with Procedural Rules, Board Orders, or Hearing Officer Orders
101.802
Sanctions for
Abuse of Discovery Procedures
SUBPART I: REVIEW OF FINAL BOARD OPINIONS AND ORDERS
Section
101.902
Motions for Reconsideration
101.904
Relief from and Review of Final Opinions and Orders
101.906
Judicial Review of Board Orders
101.908
Interlocutory Appeal
APPENDIX A
Captions
ILLUSTRATION A
Enforcement Case
ILLUSTRATION B
Citizen’s Enforcement Case
ILLUSTRATION C
Variance
ILLUSTRATION D
Adjusted Standard Petition
ILLUSTRATION E
Joint Petition for an Adjusted Standard
ILLUSTRATION F
Permit Appeal
ILLUSTRATION G
Underground Storage Tank Appeal
ILLUSTRATION H
Pollution Control Facility Siting Appeal
ILLUSTRATION I
Administrative Citation
ILLUSTRATION J
General Rulemaking
ILLUSTRATION K
Site-specific Rulemaking
APPENDIX B
Appearance Form
APPENDIX C
Withdrawal of Appearance Form
APPENDIX D
Notice of Filing
APPENDIX E
Certificate of Service
ILLUSTRATION A
Service by Non-Attorney
ILLUSTRATION B
Service by Attorney
APPENDIX F Notice of Withdrawal
APPENDIX G Comparison of Former and Current Rules
AUTHORITY: Implementing Sections 5, 7.1, 7.2, 26, 27, 28, 29, 31, 32, 33, 35, 36, 37, 38, 40, 40.1, 40.2, 41, and 58.7
of the Environmental Protection Act (Act) [415 ILCS 5/5, 7.1, 7.2, 26, 27 , 28, 29, 31, 32, 33, 35, 36, 37, 38, 40, 40.1,
40.2, 41, and 58.7] and authorized by Sections 26 and 27 of the Act [415 ILCS 5/26 and 27].
SOURCE: Filed with Secretary of State January 1, 1978; codified 6 Ill. Reg. 8357; Part repealed, new Part adopted in
R88-5A at 13 Ill. Reg. 12055, effective July 10, 1989; amended in R90-24 at 15 Ill. Reg. 18677, effective December 12,
1991; amended in R92-7 at 16 Ill. Reg. 18078, effective November 17, 1992;
O
old Part repealed, new Part adopted in
R00-20 at 24 Ill. Reg.___________, effective _________________.
SUBPART A: GENERAL PROVISIONS
Section 101.100
Applicability
a)
This Part sets forth the rules generally applicable to proceedings before the Illinois Pollution
Control Board (Board), and should be read in conjunction with procedural rules for the Board’s
specific processes, found at 35 Ill. Adm. Code 102
3
through 130, and the Board’s Administrative
4
Rules, found at 2 Ill. Adm. Code 2175. In the event of a conflict between the rules of this Part and
those found in subsequent Parts, the more specific requirement applies.
b)
The provisions of the Code of Civil Procedure [735 ILCS 5/1-101] and the Supreme Court Rules
[Ill. S. Ct. Rules] do not expressly apply to proceedings before the Board. However, the Board may
look to the Code of Civil Procedure and the Supreme Court Rules for guidance where the Board’s
procedural rules are silent.
Section 101.102
Severability
If any provision of this Part or its application to any person is adjudged invalid, thesuch adjudication does not affect
the validity of this Part as a whole or of any portion not adjudged invalid.
Section 101.104
Repeals
All Board resolutions
the Board
adopted before January 1, 2001, that relate to procedural matters for Board
proceedings are repealed and are superseded by 35 Ill. Adm. Code 101-130.
Section 101.106
Board Authority
a)
The Board has the authority to
determine, define and implement the environmental control standards
applicable in the State of Illinois and may adopt rules and regulations in accordance with Title VII of
the
is
Act
.
[415 ILCS 5/5(b)].
b)
The Board has the
authority to conduct hearings upon complaints charging violations of the
is
Act or
of regulations thereunder; upon petitions for variances; upon petitions for review of the Agency’s denial
of a permit in accordance with Title X of the
is
Act; upon petition to remove a seal under Section 34 of
the
is
Act; upon other petitions for review of final determination which are made pursuant to the Act or
Board rules and which involve a subject which the Board is authorized to regulate; and such other
hearings as may be provided by rule
.
[415 ILCS 5/5(d)].
c)
In addition to subsections (a) and (b) of this Section, the Board has the authority to act as otherwise
provided by law.
Section 101.108
Board Proceedings
a)
Board proceedings can generally be divided into two categories: rulemaking proceedings and
adjudicatory proceedings.
b)
The following are examples of Board rulemaking proceedings: Identical-in-Substance, Clean Air
Act/Fast Track, Federally Required Rulemaking, General Rulemaking, and Site-Specific
Rulemaking. Procedural rules for these types of proceedings can be found at 35 Ill. Adm. Code
102.
c)
The following are examples of Board adjudicatory proceedings: Enforcement Proceedings (35 Ill.
Adm. Code 103), Variance Petitions, (35 Ill. Adm. Code 104), Adjusted Standard Petitions (35 Ill.
Adm. Code 104),
Permit Appeals (35 Ill. Adm. Code 105),, Leaking Underground Storage Tank
Appeals, (35 Ill. Adm. Code 105), Pollution Control Facility Siting Appeals (35 Ill. Adm. Code 107),
and
Enforcement Proceedings,
Administrative Citations, (35 Ill. Adm. Code 108).
Variance
Petitions, and Adjusted Standard Petitions. Procedural Rules for these types of
proceedings can be found at 35 Ill. Adm. Code 103 through 108.
5
d)
Board d
D
ecisions will be made at meetings open to the public. Except as provided in subsection
(e) of this Section, 4 members of the Board constitute a quorum, and 4 affirmative votes are
required to adopt a Board decision.
e)
At a hearing pursuant to Section 34(d) of the Act to determine whether a seal should be removed,
at least one Board Member shall be present, and those Board Members present may render a final
decision without regard to the requirements of Section 5(a) of the Act
.
[415 ILCS 5/34(d)].
Section 101.110
Public Participation
a)
General. The Board encourages public participation in all of its proceedings. The extent to which
the law allows for the
such
participation varies, depending on the type of Board proceeding
involved, the party status of the person or persons seeking to participate, and the rules governing
that type of proceeding. Public participation in particular proceedings may be more specifically
delineated by Board or hearing officer order consistent with the provisions of applicable law and
the Board’s procedural rules.
b)
Party/Non-Party Status. The issue of who constitutes a proper party in each type of adjudicatory
proceeding before the Board is addressed in the rules. A person who wishes to participate in a
Board adjudicatory proceeding and is not a party will be deemed a participant and will have only
those rights specifically provided in these rules. A person who wishes to participate in a Board
regulatory proceeding will be deemed a participant and will have only those rights specifically
provided in these rules.
c)
Amicus Curiae Briefs. Amicus curiae briefs may be filed in any adjudicatory proceeding by any
interested person, provided permission is granted by the Board. Response briefs may be allowed by
permission of the Board, but not as of right. TheS
uch
briefs must consist of argument only and
may not raise facts that are not in evidence in the relevant proceeding. Amicus curiae briefs, and
any responses, will be considered by the Board only as time allows. The
Such
briefs will not delay
decision-making of the Board. (See also Section 101.302(k
j
) of this Part.)
Section 101.112
Bias and Conflict of Interest
a)
No Board Member or Board employee may represent any other person in any Board proceeding.
b)
No former Board Member or Board employee may represent any other person in any Board
proceeding in which he or she participated personally and substantially as a Board Member or
Board employee, unless the Board and, as applicable, all parties or proponents in the proceeding
consent in writing after disclosure of the participation. For purposes of subsections (a) and (b) of
this Section, representation includes
, but is not limited to,
consulting on legal or technical
matters, and Board employee means a person the Board employs on a full-time, part-time
,
or
contract, or intern basis.
c)
The Board, on its own motion or the motion of any party, may disqualify a hearing officer for bias
or conflict of interest as provided by Section 10-30(b) of the IAPA [5 ILCS 100/10-30(b)]
of the
IAPA
].
Section 101.114
Ex Parte Communications
a)
Adjudicatory Proceedings. Board members and employees are prohibited from engaging in e
E
x
parte communications with respect to a pending adjudicatory proceeding.
are prohibited.
(See
definition of “ex parte communication” in Section 101.202 of this Part.)
Information about a
6
pollution source included in the record of a regulatory proceeding is not an ex parte
communication with respect to any adjudicatory proceeding concerning the
pollution source, but Board Members and Board employees will exercise caution
to avoid prejudging the merits of the adjudicatory proceeding based on such
information.
For purposes of this Section, Board employee means a person the Board employs on
a full-time, part-time, contract, or intern basis.
b)
Regulatory Proceedings. Board Members and Board employees should not engage in an ex parte
communication designed to influence their
his or her
action with respect to a pending regulatory
proceeding. Whenever practicable, communications with respect to a pending regulatory
proceeding must be in writing and addressed to the Clerk rather than to individual Board
Members or Board employees.
c)
Nothing in this Section precludes Board Members or Board employees from receiving informal
complaints about individual pollution sources, or forbids the
such
administrative contacts as would
be appropriate for judges and other judicial officers. Information about a pollution source
included in the record of a regulatory proceeding is not an ex parte communication with respect to
any adjudicatory proceeding concerning the pollution source.
d)
In the event that an ex parte communication occurs, the Board Member or Board employee will
make that communication part of the record of the proceeding. To make an oral ex parte
communication part of the record, the substance of the oral communication, along with the
identity of each person involved in the communication, will be either set forth in a memorandum
and placed in the record or announced on the record at a public hearing.
SUBPART B: DEFINITIONS
Section 101.200
Definitions Contained in the Act
Unless otherwise provided in 35 Ill. Adm. Code 101-130, or unless a different meaning of a word or term is clear
from the context, the definitions of the Act apply to the Board’s procedural rules, found in 35 Ill. Adm. Code 101
through 130.
Section 101.202
Definitions for Board’s Procedural Rules
Unless otherwise provided in 35 Ill. Adm. Code 101-130, or unless a different meaning of a word or term is clear
from the context, the following definitions also apply to the Board’s procedural rules, found in 35 Ill. Adm. Code 101
through 130:
“Act” means the Environmental Protection Act. [415 ILCS 5/1
et seq.
]
“Adjudicatory proceeding” means an action of a quasi-judicial nature brought before the Board pursuant
to authority granted to the Board under Section 5(d) of the Act or as otherwise provided by law.
Adjudicatory proceedings,
include but are not limited to,
enforcement, variance, permit appeal,
pollution control facility siting appeal, Underground Storage Tank (UST) Fund determination, water well
set back exception, adjusted standard, and administrative citation proceedings. Adjudicatory proceedings
do not include regulatory, quasi-legislative, or informational proceedings.
“Adjusted standard” or “AS” means an alternative standard granted by the Board in an adjudicatory
proceeding pursuant to Section 28.1 of the Act and 35 Ill. Adm. Code 104.Subpart D. The adjusted
standard applies instead of the rule or regulation of general applicability.
7
“Administrative citation” or “AC” means a citation issued pursuant to Section 31.1 of the Act by the
Agency, or by a unit of local government acting as the Agency's delegate
delegee
pursuant to Section 4(r)
of the Act.
“Administrative citation review (appeal)” means a petition for review of an administrative citation filed
pursuant to Section 31.1(d) of the Act. (See 35 Ill. Adm. Code 108)
“Affidavit” means a sworn, signed statement witnessed by a notary public.
“Affidavit of service” means an affidavit that states that service of a document upon specified persons was
made, and the manner in which, and date upon which, service was made.
“Agency” means the Illinois Environmental Protection Agency as established by Section 4 of the Act.
“Agency recommendation” means the document filed by the Agency pursuant to Sections 37(a) and
28.1(d)(3) of the Act in which the Agency provides its recommended disposition of a petition for variance or
an adjusted standard. This includes
, but is not limited to,
a recommendation to deny, or a
recommendation to grant with or without conditions. (See 35 Ill. Adm. Code 104.218 and 104.416)
“Amicus curiae brief” means a brief filed in a proceeding by any interested person who is not a party. (See
Sections 101.110 and 101.628 of this Part.)
“Applicant” means any person who submits, or has submitted, an application for a permit or for local siting
approval pursuant to any of the authorities to issue permits or granting of siting approval identified in
Sections 39, 39.1, and 39.5 of the Act.
“Article” means
any object, material, device or substance, or whole or partial copy thereof, including any
writing, record, document, recording, drawing, sample, specimen, prototype, model, photograph, culture,
microorganism, blueprint or map.
[415 ILCS 5/7.1].
“Attorney General” means the Attorney General of the State of Illinois and/or representatives thereof.
“Authorized representative” means any person who is authorized to act on behalf of another person. by
formal agreement or contract.
“Board” means the Illinois Pollution Control Board as created in Section 5 of the Act or, if applicable, its
designee.
“Board decision” means an opinion or an order voted in favor of by at least four members of the Board at
an open Board meeting except in a proceeding to remove a seal under Section 34(d) of the Act.
“Board designee” means an employee of the Board who has been given authority by the Board to carry out
a function for the Board. ( e.g., the Clerk, Assistant Clerk of the Board, or Hearing Officer.).
“Board meeting” means an open meeting held by the Board pursuant to Section 5(a) of the Act in which the
Board makes its decisions and determinations.
“Board’s procedural rules” means the Board’s regulations set forth at 35 Ill. Adm. Code 101 through 130.
“Brief” means a written statement that contains a summary of the facts of a proceeding, the pertinent laws,
and an argument of how the law applies to the facts supporting a position.
8
“CAAPP” means the Clean Air Act Permit Program, as adopted in Section 39.5 of the Act.
“Certificate of acceptance” means a certification, executed by a successful petitioner in a variance
proceeding, in which the petitioner agrees to be bound by all terms and conditions that the Board has
affixed to the grant of variance.
“Chairman” means the Chairman of the Board designated by the Governor pursuant to Section 5(a) of the
Act.
“Citizen’s enforcement proceeding” means an enforcement action brought before the Board pursuant to
Section 31(d) of the Act by any person who is not authorized to bring the action on behalf of the People of
the State of Illinois.
“Clean Air Act” or “CAA”
means the
federal
Clean Air Act, as now and hereafter amended, 42 U.S.C. 7401 et
seq.
[415 ILCS 5/ 39.5.1]
“Clean Water Act” means the federal Clean Water Act, 33 USC 1251 et seq.
“Clerk” means the Clerk of the Board.
“Complaint” means the initial filing that begins an enforcement proceeding pursuant to Section 31 of the
Act and 35 Ill. Adm. Code 103.
“Compliance plan” means a detailed description of a program designed to achieve compliance with the Act
and Board regulations.
“Copy” means
any facsimile, replica, photograph or other reproduction of an article, and any note, drawing or
sketch made of or from an article
. [415 ILCS 5/7.1].
“Counter-complaint” means a pleading that a respondent files setting forth a claim in its favor against a
complainant. (See 35 Ill. Adm. Code 103.206.)
“Cross-complaint” means a pleading that a party files setting forth a claim in its favor against a co-party.
(See 35 Ill. Adm. Code 103.206.)
“Cross-media impacts” means impacts that concern multiple environmental areas, such as air, land and/or
water.
“Decision date” means the Board meeting immediately preceding the decision deadline.
“Decision deadline” means the last day of any decision period, as established by law, within which the
Board is required to render a decision in an adjudicatory proceeding. (See Subpart C of this Part.); (See also
Sections 38(a), 40, and 40.1 of the Act that establish 120-day decision deadlines for variances, permit
appeals, and review of pollution control facility siting decisions respectively.)
“Decision period” means the period of time established by the Act within which the Board is required to
make a Board decision in certain adjudicatory proceedings. (See Subpart C of this Part.); (See also Sections
38(a), 40, and 40.1 of the Act that establish 120-day decision deadlines for variances, permit appeals, and
review of pollution control facility siting decisions, respectively.)
“Deinked stock”
means paper that has been processed to remove inks, clays, coatings, binders and other
contaminants.
[415 ILCS 20/2.1].
9
“Delegated unit” means the unit of local government to which the Agency has delegated its administrative
citation or other function pursuant to Section 4(r) of the Act.
“DNR” means the Illinois Department of Natural Resources.
“Discovery” means a pre-hearing process that can be used to obtain facts and information about the
adjudicatory proceeding in order to prepare for hearing. The discovery tools include, but are not limited to,
depositions upon oral and written questions, written interrogatories, production of documents or things,
and requests for admission.
“DNS” means the Illinois Department of Nuclear Safety.
“DOA” means the Illinois Department of Agriculture.
“Duplicitious” or “Duplicative” means the matter is identical or substantially similar to one brought before
the Board or another forum.
“Environmental Management System Agreement” or “EMSA” means the agreement between the Agency
and a sponsor, entered into under Section 52.3 of the Act and 35 Ill. Adm. Code 187, that describes the
innovative environmental measures to be implemented, schedules to attain goals, and mechanisms for
accountability.
“Enforcement proceeding” means an adjudicatory proceeding brought upon a complaint filed pursuant to
Section 31 of the Act by the Attorney General, State’s Attorney, or other persons, in which the complaint
alleges violation of the Act or any rule or regulation or Board order thereunder or any permit or term or
condition thereof.
“Ex parte communication” means a communication between a person who is not a Board Member or Board
employee and a Board Member or Board employee that reflects on the substance of a pending Board
proceeding and that takes place outside the record of the proceeding.
Communications regarding matters of
procedure and practice, such as the format of pleadings, number of copies required, manner of service, and status
of proceedings, are not considered ex parte communications.
[5 ILCS 100/10-60(d)]. For purposes of this
definition, “Board employee” means a person the Board employs on a full-time, part-time, contract or intern
basis. (See Section 101.114 of this Part.)
“Fast Track rulemaking” means a Clean Air Act rulemaking conducted pursuant to Section 28.5 of the Act.
“Federally required rule” means
a rule that is needed to meet the requirements of the federal Clean Water Act,
Safe Drinking Water Act, Clean Air Act (including required submission of a State Implementation Plan), or
Resource Conservation and Recovery Act, other than a rule required to be adopted under subsection (c) of Section
13, Section 13.3, Section 17.5, subsection (a) or (d) of Section 22.4, or subsection (a) of Section 22.40.
[415 ILCS
5/28.2].
“Filing” means the act of delivering a document or article into the custody of the Clerk with the intention of
incorporating that document into a proceeding or record before the Board. The Clerk’s Office is located at
100 West Randolph Street, Suite 11-500, Chicago, IL, 60601.
“Final order” means an order of the Board that terminates the proceeding leaving nothing further to litigate
or decide and that is appealable to an appellate court pursuant to Section 41 of the Act. (See Subpart IJ of
this Part.)
“Frivolous” means a request for relief that the Board does not have the authority to grant, or a complaint
that fails to state a cause of action upon which the Board can grant relief.
10
“Hearing” means a public proceeding conducted by a hearing officer where the parties and other interested
persons, as provided for by law and the Board’s procedural rules, present evidence and argument regarding
their positions.
“Hearing officer” means a person licensed to practice law in the State of Illinois who presides over hearings
and otherwise carries out record development responsibilities as directed by the Board.
“IAPA” means the Illinois Administrative Procedure Act [5 ILCS 100et. seq.].
“Identical-in-substance rules (or regulations)” means
State regulations which require the same actions with
respect to protection of the environment, by the same group of affected persons, as would federal regulations if
USEPA administered the subject program in Illinois.
[415 ILCS 5/7.2].
“Initial filing” means the filing that initiates a Board proceeding and opens a docket. For instance, the
initial filing in an enforcement proceeding is the complaint; in a permit appeal it is a petition for review; and
in a regulatory proceeding it is the proposal.
“Innovative environmental measures” means any procedures, practices, technologies or systems that
pertain to environmental management and are expected to improve environmental performance when
applied. (See Part 106 Subpart 35 Ill. Adm. Code 106.Subpart GF.)
“Inquiry hearing” means a hearing conducted by the Board for the purpose of seeking input and comment
from the public regarding the need for a rulemaking proceeding in a specific area.
“Interlocutory appeal” means an appeal of a Board decision to the appellate court that is not dispositive of
all the contested issues in the proceeding. (See Section 101.9081008(b)(4) of this Part) An interlocutory
appeal may also be the appeal of a hearing officer ruling to the Board. (See Section 101.518 of this Part.)
“Intervenor” means a person, not originally a party to an adjudicatory proceeding, who voluntarily
participates as a party in the proceeding with the leave of the Board. (See Section 101.402 of this Part.)
“Intervention” means the procedure by which a person, not originally a party to an adjudicatory
proceeding, voluntarily comes into the proceeding as a party with the leave of the Board. (See Section
101.402 of this Part.)
“JCAR” means the Illinois General Assembly’s Joint Committee on Administrative Rules established by the
IAPA. [5 ILCS 100/5-90]
“Joinder” means the procedure by which the Board adds a person, not originally a party to an adjudicatory
proceeding, as a party to the proceeding. (See Section 101.403 of this Part and 35 Ill. Adm. Code 103.206.)
“Misnomer” means a mistake in name, giving an incorrect name in a complaint or other document with
respect to any properly included party.
“Motion” means a request made to the Board or the hearing officer for the purposes of obtaining a ruling or
order directing or allowing some act to be done in favor of the movant. (See definition of “Movant” in this
Section.)
“Movant” means the person who files a motion.
“New pollution control facility” means:
a pollution control facility initially permitted for development or
construction after July 1, 1981; or the area of expansion beyond the boundary of a currently permitted pollution
control facility; or a permitted pollution control facility requesting approval to store, dispose of, transfer or
incinerate, for the first time, any special or hazardous waste.
[415 ILCS 5/3.32(b)].
11
“Non-disclosable information” means
information which constitutes a trade secret; information privileged
against introduction in judicial proceedings; internal communications of the several agencies; information
concerning secret manufacturing processes or confidential data submitted by any person under theis Act.
[415
ILCS 5/7(a)].
“Notice list” means the list of persons in a regulatory proceeding who will receive all Board opinions and
orders and all hearing officer orders. Persons on a notice list generally do not receive copies of motions,
public comments, or testimony. (See definition of “sService lList” in this Section.) (See also 35 Ill. Adm.
Code 102.422.)
“Notice to reinstate” means a document filed that recommences the decision period after a decision
deadline negotiation waiver has been filed. TheSuch notice will give the Board a full decision period in
which to make a decision. (See Section 101.308 of this Part.)
“Oral argument” means a formal verbal statement of advocacy on a proceeding’s legal questions made at a
Board meeting with the Board’s permission. (See Section 101.700 of this Part.)
“OSFM” means Office of the State Fire Marshal.
“OSFM appeal” means an appeal of an OSFM final decision concerning eligibility and deductibility made
pursuant to Title XVI of the Act. [415 ILCS 5/57]
“Participant” means any person, not including the Board or its staff, who takes part in an adjudicatory
proceeding who is not a party, or a person who takes part in a regulatory or other quasi-legislative
proceeding before the Board. A person becomes a participant in any of several ways, including filing a
comment, being added to the notice list of a particular proceeding, or testifying at hearing.
“Participant in a CAAPP Comment Process” means a person who takes part in a Clean Air Act Permit
Program (CAAPP) permit hearing before the Agency or comments on a draft CAAPP permit.
“Party” means the person by or against whom a proceeding is brought.
“Party in interest” means the Agency when asked to conduct an investigation pursuant to Section 30 of the
Act during an ongoing proceeding. (See Section 101.404 of this Part.)
“Peremptory rulemaking” means
any rulemaking which is required as a result of federal law, federal rules and
regulations, or an order of a court, under conditions which preclude compliance with the general rulemaking
requirements of Section 5-40 of the IAPA and which preclude the exercise by the
Board
as to the content of the
rule it is required to adopt
. [5 ILCS 100/5-50]
“Permit appeal” means an adjudicatory proceeding brought before the Board pursuant to Title X of the Act.
“Person” means
any individual, partnership, co-partnership, firm, company, limited liability company,
corporation, association, joint stock company, trust, estate, political subdivision, state agency, or any other legal
entity, or their legal representative, agent or assigns
. [415 ILCS 5/3.26]
“Petition” means the initial filing in an adjudicatory proceeding other than an enforcement proceeding,
including permit appeals, OSFM appeals, UST appeals, appeals of pollution control facility siting decisions,
variances and adjusted standards.
“Pilot project” means an innovative environmental project that covers one or more designated facilities,
designed and implemented in the form of an EMSA. (See Section 52.3 of the Act.)
12
“Pollution control facility” means
any waste storage site, sanitary landfill, waste disposal site, waste transfer
station, waste treatment facility, or waste incinerator. This includes sewers, sewage treatment plants, and any
other facilities owned or operated by sanitary districts organized under the Metropolitan Water Reclamation
District Act. The following are not pollution control facilities
:
waste storage sites regulated under 40 CFR, 761.42
;
sites or facilities used by any person conducting a waste storage, waste treatment, waste disposal, waste
transfer or waste incineration operation, or a combination thereof, for wastes generated by such person's
own activities, when such wastes are stored, treated, disposed of, transferred or incinerated within the
site or facility owned, controlled or operated by such person, or when such wastes are transported
within or between sites or facilities owned, controlled or operated by such person
;
sites or facilities at which the State is performing removal or remedial action pursuant to Section 22.2 or
55.3
of the Act;
abandoned quarries used solely for the disposal of concrete, earth materials, gravel, or aggregate debris
resulting from road construction activities conducted by a unit of government or construction activities
due to the construction and installation of underground pipes, lines, conduit or wires off of the premises
of a public utility company which are conducted by a public utility
;
sites or facilities used by any person to specifically conduct a landscape composting operation
;
regional facilities as defined in the Central Midwest Interstate Low-Level Radioactive Waste Compact
;
the portion of a site or facility where coal combustion wastes are stored or disposed of in accordance with
subdivision (r)(2) or (r)(3) of Section 21
of the Act;
the portion of a site or facility used for the collection, storage or processing of waste tires as defined in
Title XIV
;
the portion of a site or facility used for treatment of petroleum contaminated materials by application
onto or incorporation into the soil surface and any portion of that site or facility used for storage of
petroleum contaminated materials before treatment. Only those categories of petroleum listed in
paragraph (5) of subsection (a) of Section 22.18(b)
of the Act
are exempt under this subdivision
definition
;
the portion of a site or facility where used oil is collected or stored prior to shipment to a recycling or
energy recovery facility, provided that the used oil is generated by households or commercial
establishments, and the site or facility is a recycling center or a business where oil or gasoline is sold at
retail
;
the portion of a site or facility utilizing coal combustion waste for stabilization and treatment of only
waste generated on that site or facility when used in connection with response actions pursuant to the
federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, the federal
Resource Conservation and Recovery Act of 1976, or the Illinois Environmental Protection Act or as
authorized by the Agency;
the portion of a site or facility accepting exclusively general construction or demolition debris, located
in a county with a population over 700,000, and operated and located in accordance with Section 22.38
of theis Act.
[415 ILCS 5/3.32(a)]
“Pollution control facility siting appeal” means an appeal of a decision made by a unit of local government
filed with the Board pursuant to Section 40.1 of the Act. With the Board.
13
“Postconsumer material” means
paper, paperboard, and fibrous wastes from retail stores, office buildings, homes,
and so forth, after the waste has been passed through its end usage as a consumer item, including used corrugated
boxes, old newspapers, mixed waste paper, tabulating cards, and used cordage.
Additionally, it includes
all
paper, paperboard, and other fibrous wastes that are diverted or separated from the municipal solid waste stream.
[415 ILCS 20/3(f)(2)(i), and (ii)]. (See also definition of “rRecycled pPaper” in this Section.)
"Preemptory rulemaking" means
any rulemaking which is required as a result of federal law, federal rules and
regulations, or an order of a court, under conditions which preclude compliance with the general rulemaking
requirements of Section 5-40 of the IAPA and which preclude the exercise by the
Board
as to the content of the
rule it is required to adopt
. [5 ILCS 100/5-50]
“Prehearing conference” means a meeting held in an adjudicatory case to determine the status of the
proceedings. A prehearing conference may also be a meeting held in a regulatory proceeding prior to the
hearing, the purposes of which
shall be to maximize understanding of the intent and application of the proposal,
if possible, and to attempt to identify and limit the issues of disagreement among participants to promote efficient
use of time at hearing.
[415 ILCS 5/27(d).]. (See 35 Ill. Adm. Code 102.404 and 102.406.)
“Proceeding” means an action conducted before the Board pursuant to authority granted under Section 5 of
the Act or as otherwise provided by law. Board proceedings are of two types: quasi-legislative (e.g.,
rulemakings and inquiry proceedings) and quasi-judicial (adjudicatory proceedings).
“Proponent” means any person, not including the Board or its staff, who submits a regulatory proposal to
the Board for the adoption, amendment, or repeal of a regulation.
“Provisional variance” means a short term variance sought by a party and recommended by the Agency
pursuant to Section 35(b) of the Act. (See 35 Ill. Adm. Code 104.308.)
“Public comment” means information submitted to the Board during a pending proceeding either by oral
statement made at hearing or written statement filed with the Board.
“Qualitative description” means a narrative description pertaining to attributes and characteristics.
“Quantitative description” means a numerically based description pertaining to attributes and
characteristics.
“RCRA variance” means a variance from a RCRA rule or a RCRA permit required pursuant to Section 21(f)
of the Act.
“Record” means the official collection, as kept by the Clerk, of all documents and exhibits including
pleadings, transcripts, and orders filed during the course of a proceeding.
"Recycled paper" means paper which contains at least 50% recovered paper material. The recovered paper
material must contain at least 45%40% deinked stock or postconsumer material.; beginning July 1, 2000,
must contain at least 45% deinked stock or postconsumer material. (See also “pPostconsumer material” in
this Section.)
“Registered agent” means a person registered with the Secretary of State for the purpose of accepting
service for any entity, or a person otherwise authorized in writing as an agent for the purpose of accepting
service for that entity.
“Regulatory hearing” or “proceeding” means a hearing or proceeding held pursuant to Title VII of the Act
or other applicable law with respect to regulations.
14
“Regulatory relief mechanisms” means variances, provisional variances and adjusted standards. (See 35 Ill.
Adm. Code 104.)
“Representing” means, for purposes of Part 130,
describing, depicting, containing, constituting, reflecting or
recording.
[415 ILCS 5/7.1].
“Requester” means, for purposes of Part 130, the person seeking from the agency the material claimed or
determined to be a trade secret. [415 ILCS 5/7.1]
“Resource Conservation and Recovery Act” or “RCRA” means the Solid Waste Disposal Act, as amended
by the Resource Conservation and Recovery Act of 1976 (42 USC 6901 et seq.).
"Rule or regulation of general applicability" means a rule or regulation adopted by the Board pursuant to
Title VII of the Act or other applicable law, with such regulation applicable to all persons not explicitly
exempted either by the regulation or by associated site-specific regulation or adjusted standard.
“Rulemaking” or “rulemaking proceeding” means a proceeding brought under Title VII of the Act or other
applicable law for the purpose of adoption, amendment, or repeal of a regulation.
“Sanction” means a penalty or other mechanism used by the Board to provide incentives for compliance
with the Board’s procedural rules, Board orders or hearing officer orders. (See also Subpart H of this Part.)
“SDWA” means the federal Safe Drinking Water Act (42 USC 300f et seq.).
“Service” means delivery of documents upon a persons. (See Sections 101.300(c) and 101.304 of this Part.)
“Service list” means the list of persons designated by the hearing officer or Clerk in a regulatory or
adjudicatory proceeding upon whom participants must serve motions, prefiled questions and prefiled
testimony and any other documents that the participants file with the clerk unless the hearing officer
otherwise directs. (See definition of “nNotice list” in this Section.) (See also 35 Ill. Adm. Code 102.422.)
“Severance” means the separation of a proceeding into two or more independent proceedings, each of
which terminates in a separate, final judgment.
“Site-specific rule or regulation” means a proposed or adopted regulation, not of general applicability, that
applies only to a specific facility, geographic site, or activity. (See 35 Ill. Adm. Code 102.208.)
“Sponsor” means the proponent of a pilot project that enters into an EMSA with the Agency.
“State enforcement proceeding” means an enforcement proceeding, other than a citizen’s enforcement
proceeding, that is brought pursuant to Section 31(a) of the Act.
“Stay” means a temporary suspension of the regular progress of a proceeding pursuant to an order of the
Board or by operation of law. (See Section 101.514 of this Part.)
“Subpoena” means a command to appear at a certain time and place to give testimony upon a certain
matter.
“Subpoena duces tecum” means a document that compels the production of specific documents and other
items at a specified time and place.
“Summary judgment” means the disposition of an adjudicatory proceeding without hearing when the
record, including pleadings, depositions and admissions on file, together with any affidavits, shows that
15
there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of
law. (See Section 101.516 of this Part.)
"Third party" means a person who is a party to a proceeding brought in by a respondent, but was not one
of the parties in the initial proceeding.
“Third party complaint” means a pleading that a respondent files setting forth a claim in its favoragainst a
person who is not already a party to the proceeding. (See 35 Ill. Adm. Code 103.206.)
“Trade secret” means
the whole or any portion or phase of any scientific or technical information, design,
process (including a manufacturing process), procedure, formula or improvement, or business plan which is
secret in that it has not been published or disseminated or otherwise become a matter of general public knowledge,
and which has competitive value. A trade secret is presumed to be secret when the owner thereof takes reasonable
measure to prevent it from becoming available to persons other than those selected by the owner to have access
thereto for limited purposes
. [415 ILCS 5/3.48]
“Trade secret petition” means a petition filed pursuant to the Board’s procedural rules (35 Ill. Adm. Code
130) regarding trade secret information.
“Transcript” means the official recorded testimony from a hearing.
“USEPA” means the United States Environmental Protection Agency.
“Underground storage tank appeal” or “UST appeal” means an appeal of an Agency final decision made
pursuant to Title XVI of the Act.
“UST” means underground storage tank.
“Variance” means a temporary exemption from any specified
regulation, requirement or order of the Board
granted to a petitioner by the Board pursuant to Title IX of the Act
upon presentation of adequate proof that
compliance with the rule or regulation, requirement or order of the Board would impose an arbitrary or
unreasonable hardship.
[415 ILCS5/35(a)].
“Waiver” means the intentional relinquishing of a known right, usually with respect to a hearing before the
Board or entry of a Board decision within the decision period. (See also Section 101.308 of this Part.)
“Web site” means the Board’s computer-based informational service accessed on the Internet at
http://www.ipcb.state.il.us.
SUBPART C: COMPUTATION OF TIME, FILING, SERVICE
OF DOCUMENTS, AND STATUTORY DECISION DEADLINES
Section 101.300
Computation of Time
a)
Computation of Time. Computation of any period of time prescribed in the Act, other applicable
law, or these rules will begin with the first calendar day following the day on which the act, event
or development occurs and will run until the close of business on the last day, or the next business
day if the last day is a Saturday, Sunday or national or State legal holiday.
b)
Time of Filing. Documents will be considered filed when they are filed in conformance with the
requirements found in Section 101.302 of this Part and any other filing requirements specifically set
out in the other Parts of these rules.
16
1)
If filed in person, by messenger service or mail delivery service other than U.S. Mail,
documents are considered filed when they are received in the Office of the Clerk.
2)
If a document is filed by U.S. Mail subsequent to a filing deadline, yet the postmark date
precedes the filing deadline, the document For purposes of filing deadlines, documents
filed by U.S. Mail will be deemed filed on the postmark datewhen they are postmarked,
provided all filing requirements are met as set forth in Section 101.302 of this Part.
3)
Documents filed other than those through U.S. Mail and received in the Office of the
Clerk after 4:30 p.m. will be marked as filed the following business day. The Clerk will
record the appropriate filing date on all filed documents.
4)
For purposes of Board decision deadlines, time does not begin until the date on which the
initial filing is date-stamped by the Clerk.
c)
Time of Service. In the case of personal service, service is deemed complete on the date personal
delivery was effectuated. In the case of facsimile transmission, service is deemed complete on the
date of a complete and proper transmittal (facsimile filings are only allowed in accordance with
Section 101.302(d) of this Part). In the case of service by registered or certified mail, or by
messenger service, service is deemed complete on the date specified on the registered or certified
mail receipt or the messenger service receipt. In the case of service by U.S. Mail, service is
presumed complete four days after mailing. TheSuch presumption can be rebutted by proper
proof.
d)
Date of Board Decision.
1)
For purposes of statutory decision deadline proceedings, the date of the Board decision is
the date of the Board meeting where a final opinion and order of the Board was adopted
by the vote of at least four Board members.
2)
For purposes of appeal, the date of the party’s certified mail receipt of the Board decision
is the date of service of the final opinion and order by the Board upon the appealing
party. Or, in the event of a timely filed motion for reconsideration filed pursuant to
Section 101.520 of this Part, the date of the party’s certified mail receipt of the Board
order ruling upon the motion is the date of service by the Board upon the appealing party.
Section 101.302
Filing of Documents
a)
This Section contains the Board’s general filing requirements. Additional requirements may exist
for specific proceedings elsewhere in these rules. The Clerk will refuse for filing any document that
does not comply with the minimum requirements of this Section.below.
b)
All documents filed with the Board must be filed with the Clerk’s Office. Service on a hearing
officer does not constitute filing with the Board unless the document is submitted to the hearing
officer during the course of a hearing. Documents may be filed at:
Pollution Control Board, Attn: Clerk
100 West Randolph Street
James R. Thompson Center, Suite 11-500
Chicago, Illinois 60601-3218
c)
Documents may be filed by U.S. Mail or other mail delivery service, in person or by messenger.
17
d)
Filing by electronic transmission or facsimile will only be allowed with the prior approval of the
Clerk of the Board or hearing officer assigned to the proceeding. The Agency may file a
provisional variance recommendation with the Board through electronic transmission or facsimile
within 2 days of a regularly scheduled meeting date followed by a hard copy submission.
e)
The following initial filings require filing fees and will only be considered filed when accompanied
by the appropriate fee, which may be paid in the form of government voucher, money order, or
check made payable to the Illinois Pollution Control Board, but which may not be paid in cash:
1)
Petition for Site-Specific Regulation, $75;
2)
Petition for Variance, $75;
3)
Petition for Review of Agency Permit Decision, UST Decision, or any other appeal filed
pursuant to Section 40 of the Act, $75;
4)
Petition to Review Pollution Control Facility Siting Decisions, pursuant to Section 40.1 of
the Act, $75; and
5)
Petition for Adjusted Standard, pursuant to Section 28.1 of the Act, $75.
f)
All documents filed must be served in accordance with Subpart C of this Part.
g)
All documents filed by parties with the Board must be typed in at least 12 pitch font, should
contain the relevant proceeding caption and number and must be submitted on 8 1/2 x 11 inch
recycled paper as defined in Subpart B of this Part, and double sided if feasible.
h)
Unless the Board or its procedural rules provide otherwise, all documents must be filed with a
signed original and 9 duplicate copies (10 total), except that:
1) Ddocuments and motions specifically directed to the assigned hearing officer,
such as requests to admit, discovery motions, interrogatories, and answers, and
subpoenas must be filed with the Clerk with a signed original and 4 duplicate
copies (5 total), or as the hearing officer orders;.
2) The Agency may file a signed original and 4 duplicate copies (5 total) of the
record required by Section 105.116, 105.302, and 105.410;
3) The OSFM may file a signed original and 4 duplicate copies (5 total) of the record
required by Section 105.508; and
4) The siting authority may file a signed original and 4 duplicate copies (5 total) of
the record required by Sections 107.300 and 302.
i) No written discovery, including interrogatories, requests to produce, and requests for admission, or
any response to written discovery, may be filed with the Clerk of the Board except upon leave or
direction of the Board or hearing officer. Any discovery request under these rules to any nonparty
must be filed with the Clerk of the Board with a signed original and 4 duplicate copies (5 total), or
as the hearing officer directs.
ji)
Non-Conforming Exhibits. When possible, exhibits must be reduced to conform to 8 1/2 X 11 inch
recycled paper. However, one non-conforming original copy may be filed with the Clerk’s Office.
Upon closure of the proceeding, the non-conforming copy may be returned to the person filing it in
accordance with 2 Ill. Adm. Code 2175.300.
18
kj)
Page Limitation. No motion, brief in support of motion, or brief may exceed 5030 pages, and no
amicus curiae brief may exceed 20 pages, without prior approval of the Board or hearing officer.
These limits do not include appendices containing relevant material.
Section 101.304
Service of Documents
a)
Service Requirements. This Section contains the Board’s general service requirements. However,
the more specific Part for a proceeding type may contain additional requirements.
b)
Duty to Serve. Parties in Board adjudicatory proceedings are responsible for service of all
documents they file with the Clerk’s Office. Proof of service of initial filings must be filed with the
Board upon completion of service.
c)
Method of Service. Service may be effectuated by U.S. Mail or other mail delivery service, in
person, by messenger, or by facsimile, or as prescribed in Section 101.302(d), except for service of
enforcement complaints and administrative citations which must be made personally, by registered
or certified mail, or by messenger service. Proof of service of enforcement complaints and
administrative citations must be filed with the Board upon completion of service.
d)
Affidavit or Certificate of Service. A proceeding is subject to dismissal, and parties are subject to
sanctions in accordance with Section 101.800 of this Part, if service is not timely made. Proof of
proper service is the responsibility of the party filing and serving the document. An affidavit of
service or certificate of service must accompany all filings of all parties. A sample form of the
aAffidavit of service and certificate of service is available at the Board’s Offices (the locations of the
Board’s Offices are listed at 2 Ill. Adm. Code 2175.115) and may be obtained electronically at the
Board’s Web site.
e)
Service of Amicus Curiae Briefs. Any person who files an amicus curiae brief with the Board in
any proceeding must serve copies of that brief on all parties in accordance with this Section.
f)
Service of Comments of Participants in an Adjudicatory Proceeding. Participants are will not be
required to serve their comments upon the parties to the proceeding. The Clerk’s Office will serve
all comments filed by participants upon all parties to the proceeding and the hearing officer. The
Board will consider thesuch comments as time and the Act or other applicable law allow.
g)
Service on State Agencies. Service must be at the addresses listed below unless a specific person
has an appearance on file with the Board.
1)
Service on the Illinois Environmental Protection Agency (Agency). The Agency must be
served at the following address:
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
2)
Service on Office of State Fire Marshal (OSFM). The OSFM must be served at:
Division of Petroleum and Chemical Safety
Office of the State Fire Marshal
1035 Stevenson Dr.
Springfield, IL 62703
19
3)
Service on the Illinois Attorney General. The Office of the Attorney General must be
served at:
Division Chief of Environmental Enforcement
Office of the Attorney General
188 West Randolph St., 20th Floor
Chicago, IL 60601
4)
Service on the Illinois Department of Natural Resources (DNR) must be served at:
Office of Legal Services
Illinois Department of Natural Resources
524 S. Second St.
Springfield, IL 62701-1787
5)
Service on the Illinois Department of Transportation (IDOT). IDOT must be served at:
Office of Chief Counsel
DOT Administration Building
2300 S. Dirksen Parkway, Room 300
Springfield, IL 62764
6)
Service on Region V of the United States Environmental Protection Agency (USEPA).
USEPA Region V must be served at:
USEPA, Region V
230 South Dearborn St.
Chicago, IL 60604
Section 101.306
Incorporation of Documents by Reference
a)
Upon the separate written request of any person or on its own initiative, the Board or hearing
officer may incorporate materials from the record of another Board docket into any proceeding.
The person seeking incorporation must file with the Board 49 copies of the material to be
incorporated. The Board or hearing officer may approve a reduced number of copies for
documents incorporated in other Board dockets. The person seeking incorporation must
demonstrate to the Board or the hearing officer that the material to be incorporated is authentic,
credible, and relevant to the proceeding. Notice of the request must be given to all identified
participants or parties by the person seeking incorporation.
b)
The Board will give the incorporated matter the appropriate weight in light of the following
factors: the standard of evidence under which the material was previously presented to the Board;
the present purpose for incorporating the material; and the past and current opportunity for cross-
examination of the matters asserted within the incorporated material.
Section 101.308
Statutory Decision Deadlines and Waiver of Deadlines
a)
Petitions in the following proceedings each have a 120-day statutory decision deadline: Variances
(Section 38 of the Act), Permit Appeals and UST aAppeals (Section 40 of the Act), and Pollution
Control Facility Siting Review (Section 40.1 of the Act). Other adjudicatory proceedings may be
subject to decision deadlines as provided by law.
20
b)
Where the petitioner does not waive the decision deadline, the Board will proceed expeditiously to
establish all hearing and filing requirements. Willful or unexcused fFailure to follow Board
requirements on thesuch deadlines will subject the party to sanctions pursuant to Subpart H of this
Part. This Section will be strictly construed where there is a decision deadline unless the Board
receives a waiver as set out in subsection (c).below.
c)
All waivers of a deadline for Board action must be filed as a separate document. Waivers must be
clearly titled and state which type of waiver it is, identify the proceeding by name and docket
number, and be signed by the party or by his authorized representative or attorney. A waiver of a
statutory deadline does not preclude the Board from issuing an opinion or order prior to any
decision deadline, nor does it preclude filing of a motion seeking a decision on the matter.
1)
Open Waiver. Waives the decision deadline completely and unequivocally until the
petitioner elects to reinstate the 120-day decision period by filing a notice to reinstate.
Upon proper filing of the notice, the decision period is reinstated. In accordance with
Section 101.300(b)(4) of this Part, the decision period recommences as of the date the
notice to reinstate is filed with the Board.
2) Negotiation Waiver. Waives the decision deadline until such time as the petitioner elects
to reinstate the decision period by filing a notice to reinstate. Upon proper filing of the
notice, the decision period is reinstated. In accordance with Section 101.300(b)(4) of this
Part, the decision period recommences as of the date the notice to reinstate is filed with
the Board.
23)
Time Certain Waiver. Waives the decision deadline until a time certain. The time certain
may be expressed in length of days or to a specific calendar date. If expressed in length
of days, day one will be the first day after the date upon which the current time clock
expires. If the petitioner files a time certain waiver before the hearing date, the waiver
must be for at least 40120 days. If the extension is not renewed for at least 4090 days
prior to the decision deadline, the Board will set the matter for hearing.
SUBPART D: PARTIES, JOINDER, AND CONSOLIDATION
Section 101.400
Appearances, Withdrawals, and Substitutions of Attorneys in Adjudicatory Proceedings
a)
Appearances. A person who is a party in a Board adjudicatory proceeding may appear as follows:
1)
Individuals may appear on their own behalf or through an attorney-at-law licensed and
registered to practice law. (Section 1 of the Attorney Act [705 ILCS 205/1 ]
2)
When appearing before the Board, any person other than individuals must appear
through an attorney-at-law licensed and registered to practice law. (Section 1 of the
Corporation Practice of Law Prohibition Act [705 ILCS 220/1] and Section 1 of the
Attorney Act [705 ILCS 205/1])
3)
Attorneys who are licensed to practice in a state other than Illinois and who are not
licensed and registered to practice in the State of Illinois may request to appear pro hac
vice on a particular matter on a motion filed with the Board.
4)
Any attorney appearing in a representative capacity must file a separate written notice of
appearance with the Clerk, together with proof of service and notice of filing of the
appearance on all parties in the proceeding. Law firms, the Agency, and the Attorney
General’s Office when appearing before the Board must designate a lead attorney for
purposes of phone and mail contact pertaining to the proceeding. Absent a separate
21
written notice, the Board will designate the attorney whose signature appears first on the
complaint as the lead attorney.
5)
Any person appearing before the Board may appear in a special limited capacity to
contest jurisdiction.
b)
Withdrawals. An attorney who has appeared in a representative capacity and who wishes to
withdraw from that representation must file a notice of withdrawal with the Clerk, together with
proof of service and notice of filing on all parties or their representatives.
c)
Substitution. Any attorney who substitutes for an attorney of record must file a written
appearance pursuant to subsection (a) of this Section. That appearance must identify the attorney
for whom the substitution is made. However, no attorney will be considered withdrawn from a
proceeding until a formal withdrawal is filed in accordance with subsection (b) of this Section.
d)
Any person may appear on behalf of himself or others in a rulemaking proceeding in accordance
with 35 Ill. Adm. Code 102.100(b).
Section 101.402
Intervention of Parties
a)
The Board may permit any person to intervene in any adjudicatory proceeding. If a person seeks
to intervene in an adjudicatory proceeding, the person must file a motion to do so with the Clerk
and serve a copy of the motion on all parties to the proceeding. The motion must set forth the
grounds for intervention. Each of the parties to the proceeding may file a response to the motion
within 14 days after service.
b)
In determining whether to grant a motion to intervene, the Board will consider the timeliness of the
motion and whether intervention will unduly delay or materially prejudice the proceeding or
otherwise interfere with an orderly or efficient proceeding.
c)
Subject to subsection (b) of this Section, the Board will permit any person to intervene in any
adjudicatory proceeding if:
1)
Tthe person has an unconditional statutory right to intervene in the proceeding; or
2)
Iit may be necessary for the Board to impose a condition on the person.
d)
Subject to subsection (b) of this Section, the Board may permit any person to intervene in any
adjudicatory proceeding if:
1)
Tthe person has a conditional statutory right to intervene in the proceeding;
2)
Tthe person may be materially prejudiced absent intervention; or
3)
Tthe person is so situated that the person may be adversely affected by a final Board
order.
e)
An intervenor will have all the rights of an original party to the adjudicatory proceeding, except
that the Board may limit the rights of the intervenor as justice may require. TheSuch limits may
include, but are not limited to, providing that: the intervenor is bound by Board and hearing officer
orders already issued or by evidence already admitted; that the intervenor does not control any
decision deadline; and that the intervenor cannot raise issues that were raised or might more
properly have been raised at an earlier stage of the proceeding.
22
Section 101.403
Joinder of Parties
a)
The Board, on its own motion or the motion of any party, may add a person as a party to any
adjudicatory proceeding if:
1)
Aa complete determination of athe controversy cannot be had without the presence of the
person who is not already a party to the proceeding; or
2) Tthe person who is not already a party to the proceeding has an interest that the Board’s
order may affect; or
32)
Iit may be necessary for the Board to impose a condition on the person who is not already
a party to the proceeding.
b)
The Board will not dismiss an adjudicatory proceeding for misjoinder of parties. The Board will
not dismiss an adjudicatory proceeding for nonjoinder of persons who must be added to allow the
Board to decide an action on the merits without first providing a reasonable opportunity to add the
persons as parties. As justice may require, the Board may add new parties and dismiss misjoined
parties at any stage of an adjudicatory proceeding. If a party to an adjudicatory proceeding seeks
to move the Board to add a party pursuant to subsection (a) of this Section, the movant must file
the motion with the Clerk and serve a copy of the motion on all other parties to the proceeding and
the person sought to be added. The motion must set forth the grounds for joinder. The movant
also must serve the person sought to be added with a copy of the initial filing in the proceeding, as
amended, and all Board orders and hearing officer orders to date in the proceeding.
c) The nonmoving parties and the person sought to be added each may file a response to the motion
within 14 days after the respective service described in subsection (b) of this Section.
Section 101.404
Agency as a Party in Interest
Pursuant to Section 30 of the Act, the Board may request that the Agency investigate any alleged violation of the Act,
the regulations, any permit granted by the Agency, or any term or condition of any such permit and any such other
investigations as the Board may deem advisable. Upon such request, the Board may designate the Agency as a party
in interest in any ongoing proceeding in that matter. The designation of the Agency as a party in interest does not
require the Agency to take a position on the merits of the proceeding.
Section 101.406
Consolidation of Claims
The Board, upon the motion of any party or upon its own motion, may consolidate two or more proceedings for the
purpose of hearing or decision or both. The Board will consolidate the proceedings if consolidation is in the interest
of convenient, expeditious, and complete determination of claims, and if consolidation would not cause material
prejudice to any party. The Board will not consolidate proceedings where the burdens of proof vary.
Section 101.408
Severance of Claims
Upon motion of any party or on the Board's own motion, in the interest of convenient, expeditious, and complete
determination of claims, and where no material prejudice will be caused, the Board may sever claims involving any
number of parties.
SUBPART E: MOTIONS
Section 101.500
Filing of Motions and Responses
23
a)
The Board may entertain any motion the parties wish to file that is permissible under the Act or
other applicable law, these rules, or the Illinois Code of Civil Procedure.
b)
All motions must be in writing, unless made orally on the record during a hearing or during a
status conference,, and must state whether directed to the Board or to the hearing officer. Motions
that should be directed to the hearing officer are set out in Section 101.502 of this Part. All motions
should be filed and served in conformance with Subpart C of this Part.
c)
Motions may be filed at any time unless otherwise specifically provided.
d)
Within 147 days after service of a motion, a party may file a response to the motion. If no response
is filed, thesuch party will be deemed to have waived objection to the granting of the motion, but
thesuch waiver of objection does not bind the Board or the hearing officer in its disposition of the
motion. Unless undue delay or material prejudice would result, neither the Board nor the hearing
officer will grant any motion before expiration of the 147 day response period except in deadline
driven proceedings where no waiver has been filed. Parties may request that the Board grant more
time to respond by filing a motion for extension of time.
e)
The moving person will not have the right to reply, except as permitted by the Board or the hearing
officer to prevent material prejudice. A motion for leave to file a reply must be filed with the Board
within 147 days after service of the response.
Section 101.502
Motions Directed to the Hearing Officer
a)
The hearing officer has the authority to rule on all motions that are not dispositive of the
proceeding. Examples of motions that hearing officers may not rule upon are motions to dismiss,
motions to decide a proceeding on the merits, motions to strike any claim or defense for
insufficiency or want of proof, motions claiming lack of jurisdiction, motions for consolidation,
motions for summary judgment, and motions for reconsideration. Oral motions directed to a
hearing officer at a status conference will be summarized in a written hearing officer order. The
duties and authorities of the hearing officer are further set out in Section 101.610 of this Part.
b)
An objection to a hearing officer ruling made at hearing or any oral motion to the Board made at
hearing will be deemed waived if not filed within 147 days after the Board receives the hearing
transcript.
c)
Unless otherwise ordered by the Board, neither the filing of a motion, the certification of a question
to the Board, nor any appeal to the Board of a hearing officer order will stay the proceeding or
extend the time for the performance of any act. Unless otherwise provided, all hearing officer
orders will remain in effect during the pendency of any appeal to the Board.
Section 101.504
Contents of Motions and Responses
All motions and responses must clearly state the grounds upon which the motion is made and must contain a concise
statement of the position or relief sought. Facts asserted that are not of record in the proceeding must be supported
by oath, or affidavit, or certification in accordance with Section 1-109 of the Code of Civil Procedure [735 ILCS 5/1-
109]. A brief or memorandum in support of the motion or response may be included.
Section 101.506
Motions Attacking the Sufficiency of the Petition, Complaint, or Other Pleading
All motions to strike, dismiss, or challenge the sufficiency of any pleading filed with the Board must be filed within
3021 days after the service of the challenged document, unless the Board determines that material prejudice would
result.
24
Section 101.508
Motions to Board Preliminary to Hearing
Motions that a party desires the Board to rule on before hearing should be filed 21 days prior to the regularly
scheduled Board meeting before the noticed hearing date. Any motion filed after the above prescribed time will be
considered by the Board if time permits.
Section 101.510
Motions to Cancel Hearing
a)
Time to Ffile. Unless the Board or the hearing officer orders otherwise the hearing officer may
grant motions to cancel hearings that are filed no fewer than 10 days or, if all parties agree to the
motion, 5 days before the scheduled hearing date. The hearing officer may grant aany such
motion filed after the prescribed time only if the movant demonstrates that the movant will suffer
material prejudice if the hearing is not canceled.
b)
Contents. All motions to cancel a hearing must set forth a proposed date to reschedule the hearing
and must be supported by an affidavit of the person or persons with knowledge of the facts that
support the motion. The affidavit must include the factual basis for the request to cancel and a
complete status report that describes the progress of the proceeding and sets forth the number of
cancellation requests previously granted to the movant. The hearing officer will grant the motion
only if the movant demonstrates that the request to cancel is not the result of the movant’s lack of
diligence.
c)
In a proceeding for which there is a decision deadline, the hearing officer will deny a motion to
cancel a hearing if the decision deadline does not allow enough time for the Board to reschedule
the hearing, provide the required notice of the rescheduled hearing, complete the hearing, and
deliberate and decide the matter.
d)
If the hearing officer grants a motion to cancel a hearing, the hearing officer will revise the
schedule to complete the record in accordance with Section 101.612 of this Part. The hearing
officer also will file the revised schedule with the Clerk and serve a copy of the revised schedule on
all parties in accordance with Subpart C of this Part.
e) If the hearing officer grants a motion to cancel a hearing, the Board may assess the movant the
actual cost of newspaper notice of the rescheduled hearing.
f) If a party files a motion to cancel a hearing less than two business days before the scheduled
hearing, the Board may assess the movant the cancellation fee of the court reporter.
Section 101.512
Motions for Expedited Review
a)
Motions for expedited review must be directed to the Board. All motions for expedited review
must contain a complete statement of the facts and or reasons for the request and must be
accompanied by an oath or affirmation attesting that the reasons and facts cited are true.
b)
In acting on a motion for expedited review, the Board will, at a minimum, consider all statutory
requirements and whether material prejudice will result from the motion being granted or denied.
c)
The Board will grant a motion for expedited review consistent with available resources and
decision deadlines.
Section 101.514
Motions to Stay Proceedings
25
a)
Motions to stay a proceeding must be directed to the Board and must be accompanied by sufficient
information detailing why a stay is needed, and in decision deadline proceedings, by a waiver of
any decision deadline. A status report detailing the progress of the proceeding must be included in
the motion. (See also Section 101.308 of this Part.)
b)
If the motion to stay is granted, at the close of the stay, the parties must file a status report in
accordance with Subpart C of this Part. Additional requests for stay of the proceedings must be
directed to the hearing officer.
Section 101.516
Motions for Summary Judgment
a)
Any time after the opposing party has appeared (or after the expiration of time within which any
party is required to appear), but no fewer than 30 days prior to the regularly scheduled Board
meeting before the noticed hearing date, a party may move the Board for summary judgment for
all or any part of the relief sought. Any response to a motion for summary judgment must be filed
within 14 days after service of the motion for summary judgment. The hearing officer may extend
the filing and response deadlines contained in this subsection upon written motion by a party,
consistent with any statutory deadline.
b)
If the record, including pleadings, depositions and admissions on file, together with any affidavits,
shows that there is no genuine issue of material fact, and that the moving party is entitled to
judgment as a matter of law, the Board will enter summary judgment.
c)
Any party wishing to cancel a hearing pending decision on a motion for summary judgment must
file a motion to cancel hearing pursuant to Section 101.510 of this Part.
d) Any issue raised in a motion for summary judgment not ruled on prior to the commencement of
the hearing is deemed denied.
Section 101.518
Motions for Interlocutory Appeal from Hearing Officer Orders
Interlocutory appeals may be taken to the Board from a ruling of the hearing officer may be taken to the Board. The
Board may consider an interlocutory appeal upon the filing of a written motion.
Section 101.520
Motions for Reconsideration
a)
Any motion for reconsideration or modification of a final Board order must be filed within 35 days
after the receipt of the order. (See Section 101.91002 of this Part.)
b)
Any response to a motion for reconsideration or modification must be filed within 14 days after the
filing of the motion.
c)
A timely-filed motion for reconsideration or modification stays the effect of the final order until
final disposition of the motion in accordance with Section 101.300(d)(2) of this Part.
Section 101.522
Motions for Extension of Time
The Board or hearing officer, for good cause shown on a motion after notice to the opposite party, may extend the
time for filing any document or doing any act which is required by these rules to be done within a limited period,
either before or after the expiration of time.
SUBPART F: HEARINGS, EVIDENCE, AND DISCOVERY
Section 101.600
Hearings
26
All hearings are open to the public and are held in compliance with the Americans with Disabilities Act of 1990 (42
USC 12101 et seq.). The hearings are generally held in the county in which the source or facility is located unless
otherwise ordered by the hearing officer. All hearings are subject to cancellation without notice. Interested persons
may contact the Clerk’s office or the hearing officer for information about the hearing. Parties, participants, and
members of the public must conduct themselves with decorum.
Section 101.602
Notice of Board Hearings
a) The Clerk will provide notice of all hearings, except for administrative citation hearings, in a
newspaper of general circulation in the county in which the facility or pollution source is located,
or where the activity in question occurred. Notice must be published at least 21 days prior to the
hearing. If the proceeding involves federal rules which the State has been given delegated
authority to administer, notice must be published at least 30 days prior to the hearing.
b)
Whenever a proceeding before the Board may affect the right of the public individually or collectively to
the use of community sewer or water facilities provided by a municipally owned or publicly regulated
company, the Board shall at least 30 days prior to the scheduled date for the first hearing in the
proceeding, give notice of the date, time, place, and purpose of the hearing by public advertisement in a
newspaper of general circulation in the area of the state concerned
[415 ILCS 5/33(c)].
Section 101.604
Formal Board Transcript
All Board hearings will be transcribed by a certified court reporter in accordance with Section 32 of the Act or other
applicable law. Any party or witness may file a motion with the hearing officer to correct the transcript within 2114
days after receipt of the transcript in the Clerk’s Office. Failure of any party or witness to timely file a motion to
correct the transcript constitutes a waiver of the right to correct, unless material prejudice results.
Section 101.606
Informal Recordings of the Proceedings
Informal recording of Board proceedings is allowed as provided for in this Section. The hearing officer may prohibit
audio or video recording at hearing if a witness refuses to testify on the grounds that the witness may not be
compelled to testify if any portion of the testimony is to be broadcast or televised. If the hearing officer determines
that recording is disruptive or detrimental to proper development of the record, the hearing officer may limit or
prohibit audio and/or video recording.
Section 101.608
Default
a)
Failure of a party to appear at the hearing, or failure to proceed as ordered by the Board or hearing
officer, will constitute default.
b)
If a respondent party fails to appear at hearing, the complainant or petitioner opposing party must
prove their prima facie case in order to prevail on the merits.
Section 101.610
Duties and Authority of the Hearing Officer
The hearing officer has the duty to manage proceedings assigned, to set hearings, to conduct a fair hearing, to take
all necessary action to avoid delay, to maintain order, and to ensure development of a clear, complete, and concise
record for timely transmission to the Board. The hearing officer has all powers necessary to these ends, including the
authority to:
a)
Require parties to proceed to hearing and establish a schedule for, and notice and service of, any
prefiled submission of testimony and written exhibits;
27
b)
Administer oaths and affirmations;
c)
Allow for the examination of or examine witnesses to ensure a clear and complete record;
d)
Regulate the course of the hearing, including controlling the order of proceedings;
e)
Establish reasonable limits on the duration of the testimony and questioning of any witness, and
limit repetitive or cumulative testimony and questioning;
f)
Determine that a witness is adverse, hostile, or unwilling pursuant to Section 101.624 of this Part;
g)
Issue an order compelling the answers to interrogatories or responses to other discovery requests;
h)
Order the production of evidence pursuant to Section 101.614 of this Part;
i)
Order the filing of any required record or recommendation in a manner which provides for a
timely review and development of issues prior to the hearing and consistent with any statutory
decision deadline;
j)
Initiate, schedule, and conduct a pre-hearing conference;
k)
Order a briefing and comment schedule and exclude late-filed briefs and comments from the
record;
l)
Rule upon objections and evidentiary questions;
m)
Order discovery pursuant to Sections 101.614 and 101.616 of this Part;
n)
Rule on any motion directed to the hearing officer or deferred to the hearing officer by the Board in
accordance with Section 101.502 of this Part;
o)
Set status report schedules; and
p)
Require all participants in a rulemaking proceeding to state their positions with respect to the
proposal.; and
q) Rule upon offers of proof and receive evidence and rule upon objections to the introduction of
evidence.
Section 101.612
Schedule to Complete the Record
a)
The hearing officer must establish a schedule to complete the record. The schedule may provide
dates and deadlines for pre-hearing conferences, discovery completion, and hearing and post-
hearing submissions (including public comments). The schedule must provide for a completed
record at least 30 days before the decision date, unless the hearing officer orders otherwise to
prevent material prejudice. The schedule must be in the form of a hearing officer order. The
hearing officer must file the schedule with the Clerk and serve a copy of the schedule on all parties
in accordance with Subpart C of this Part.
b)
The hearing officer may rule upon any motion to revise the schedule to complete the record. The
hearing officer may grant thesuch motion to the extent that the revised schedule provides for a
completed record at least 30 days before the decision date or to prevent material prejudice. If the
hearing officer grants a motion to revise the schedule, the hearing officer must file the revised
28
schedule with the Clerk and serve a copy of the revised schedule on all parties in accordance with
Subpart C of this Part. (See also Section 101.510(d) of this Part.)
Section 101.614
Production of Information
The hearing officer may, on his or her own motion or on the motion of any party, order the production of
information that is relevant to the matter under consideration. The hearing officer will deny, limit or condition the
production of information when necessary to prevent undue delay, undue expense, or harassment, or to protect
materials from disclosure consistent with Sections 7 and 7.1 of the Act and 35 Ill. Adm. Code 130.
Section 101.616
Discovery
The assigned hearing officer will set all time deadlines for discovery not already provided for in this Subpart. Time
deadlines will be consistent with Board deadlines. For purposes of discovery, the Board may look to the Code of Civil
Procedure and the Supreme Court Rules for guidance where the Board’s procedural rules are silent (see Section
101.100(b)). Discovery deadlines provided for in the Code of Civil Procedure do not apply. All discovery disputes
will be handled by the assigned hearing officer.
a)
All relevant information and information calculated to lead to relevant information is discoverable,
excluding those materials that would be protected from disclosure in the courts of this State
pursuant to statute, Supreme Court Rules or common law, and materials protected from disclosure
under 35 Ill. Adm. Code 130.
b)
If the parties cannot agree on the scope of discovery or the time or location of any deposition, the
hearing officer has the authority to order discovery or to deny requests for discovery.
c)
All discovery must be completed at least 10 days prior to the scheduled hearing in the proceeding
unless the hearing officer orders otherwise.
d)
The hearing officer may, on his or her own motion or on the motion of any party or witness, issue
protective orders that deny, limit, condition or regulate discovery to prevent unreasonable expense,
or harassment, to expedite resolution of the proceeding, or to protect non-disclosable materials
from disclosure consistent with Sections 7 and 7.1 of the Act and 35 Ill. Adm. Code 130.
e)
Unless a claim of privilege is asserted, it is not a ground for objection that the testimony of a
deponent or person interrogated will be inadmissible at hearing, if the information sought is
reasonably calculated to lead to relevant information. Any appeals of rulings by the hearing officer
regarding discovery must be in writing and filed with the Board prior to hearing.
f)
Failure to comply with any order regarding discovery may subjects the offending persons to
sanctions pursuant to Subpart H of this Part.
g)
If any person servesfiles any request for discovery or answers to discovery for any improper
purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of
litigation, or knowingly gives a false answer to discovery questions, the Board, on its own motion
or the motion of a party, may impose sanctions pursuant to Subpart H of this Part.
h)
A party must amend any prior responses to interrogatories, requests for production, or requests for
admission if the party learns that the response is in some material respect incomplete or incorrect,
and the additional or corrected information has not otherwise been made known to the other
parties during the discovery process or in writing.
Section 101.618
Admissions
29
a)
General. All requests to admit must be served upon a party no later than 35 days before hearing.
Copies of such requests should be filed upon the Board and the hearing officer. All answers or
objections to requests to admit must be served upon the party requesting the admission, the Board,
and the hearing officer within 2820 days afterof the service of the request.
b)
Extension of Time. In accordance with Sections 101.522 and 101.610 of this Part, the hearing
officer may extend the time for filing any request, answer, or objection either before or after the
expiration of time.
c)
Request to Admit. Any party serving a request to admit in accordance with subsection (d) or (e)
must include the following language in the first paragraph of the request. “Failure to respond to
the following requests to admit within 20 days may have severe consequences. Failure to respond
to the following requests will result in all the facts requested being deemed admitted as true for this
proceeding. If you have any questions about this procedure, you should contact the hearing officer
assigned to this proceeding or an attorney.”
d)
Request for Admission of Fact. A party may serve a written request for admission of the truth of
specific statements of fact on any other party.
e)
Request for Admission of Genuineness of Document. A party may serve a written request for
admission of the genuineness of documents on any other party unless the document has already
been furnished in the present proceeding. Copies of the document must be served.
f)
Admission in the Aabsence of Ddenial. Each of the matters of fact and the genuineness of each
document of which admission is requested is admitted unless, within 20 days after service thereof,
the party to whom the request is directed serves upon the party requesting the admission either a
sworn statement denying specifically the matters of which admission is requested or setting forth
in detail the reasons why the party cannot truthfully admit or deny those matters, or written
objections on the ground that some or all of the requested admissions are privileged or irrelevant or
that the request is otherwise improper in whole or in part. If written objections to a part of the
request are made, the remainder of the request must be answered within the period designated in
the request. A denial must fairly address the substance of the requested admission.
g)
Partial Ddenial or Qqualification. If good faith requires that a party deny a part of a matter for
which an admission is requested, or if a part requires qualification, the party must specify the part
which is denied or qualified and admit only the remainder.
h)
Objection. Any objection to a request or to any answer must be stated with specificity, and will be
heard by the hearing officer upon promptnotice and motion of the party making the request.
i)
Effect of Admission. Any admission made by a party pursuant to a request under this Section is
for the purpose of the pending proceeding only. It does not constitute an admission by the party
for any other purpose and may not be used against him in any other proceeding.
j) Expenses of Refusal to Admit. If a party, after being served with a request to admit the
genuineness of any document or the truth of any matters of fact, fails to admit the truth of any of
the matters or the genuineness of any documents and serves a sworn denial thereof, and if the
party requesting the admissions thereafter proves the genuineness of the document or the truth of
the matter of fact, the party so moving may apply to the Board for an order under Subpart H of
this Part for payment of reasonable expenses incurred.
Section 101.620
Interrogatories
30
a)
Unless ordered otherwise by the hearing officer, aA party may serve a maximum of 30 written
interrogatories, including subparts, on any other party, no later than 35 days before hearing.
Unless otherwise ordered by the hearing officer, interrogatories must be filed pursuant to Section
101.302(i) of this Part and served upon the Clerk and the hearing officer.
b)
Within 2820 days after service thereof, the party to whom the interrogatory is directed must serve
the answers and objections, if any, upon the party submitting the interrogatories. , the Clerk, and
the hearing officer. Each interrogatory must be answered separately and fully in writing under
oath, unless it is objected to. Answers must be signed by the person making them and objections
must be signed by the attorney making them or, in the event of an individual representing himself
or herself, the individual making them.
c)
Grounds for an objection to an interrogatory must be stated with specificity, and be accompanied
by a copy of the interrogatory. Any ground that is not stated in a timely objection is waived unless
it results in material prejudice or good cause for the delay is shown.
Section 101.622
Subpoenas and Depositions
a)
Upon request by any party to a contested proceeding, the Clerk will issue subpoenas for the
attendance of witnesses at a hearing or deposition. Subpoena forms are available at the Board's
Chicago office. The person requesting the subpoena is responsible for completing the subpoena
and serving it upon the witness.
b)
Service of the subpoena on the witness must be completed no later than 10 days before the date of
the required appearance. A copy of the subpoena must be filed with the Clerk after service upon
the witness and served upon the hearing officer within 7 days after service upon the witness.
Failure to serve both the Clerk and the hearing officer will render the subpoena null and void.
Service and filing must be in accordance with Subpart C of this Part.
c)
Subpoenas may include a command to produce books, papers, documents, or other tangible things
designated therein and relevant to the matter under consideration.
d)
The hearing officer, upon motion made promptly and in any event at or before the time specified in
the subpoena for compliance, may quash or modify the subpoena if it is unreasonable or irrelevant.
The hearing officer will rule upon motions to quash or modify material requested in the subpoena
pursuant to subsection (c) of this SectionPart in accordance with the standards articulated in
Section 101.614 of this Part.
e) If the witness is not a resident of the State, the witness may be eligible for reasonable expenses from
the party requesting the subpoena.
ef)
Each witness subpoenaed by a party under this Section is entitled to receive witness fees from that
party as provided in Section 4.37 of the Circuit Courts Fees and Salaries Act [70555 ILCS
35/4.345/47].
fg)
Unless the hearing officer orders otherwise, any witness subpoenaed for a deposition may be
required to attend only in the county in which he resides or maintains an office address. In
accordance with Amended Supreme Court Rule 206(d), all depositions must be limited to 3 hours
in length unless the parties and the non-party deponent by stipulation agree to a longer time frame
or unless the hearing officer orders otherwise after a showing of good cause. (See Ill. S. Ct.
Amended Rule 206(d).)
31
gh)
Failure of any witness to comply with a subpoena will subject the witness to sanctions under this
Part, or the judicial enforcement of the subpoena. The Board may, upon proper motion by the
party requesting the subpoena, request the Attorney General to pursuesuch judicial enforcement of
the subpoena on behalf of the Board.
Section 101.624
Examination of Adverse, Hostile or Unwilling Witnesses
a)
Adverse Witnesses. At hearing, upon motion granted by the hearing officer, any party, or any
person for whose immediate benefit the proceeding is prosecuted or defended, or any officers,
directors, managing agents, or foremen of any party may be called as an adverse witness as
allowed by the Code of Civil Procedure. (Section 2-1102Z of the Code of Civil Procedure.)
Adverse witnesses may be examined as if under cross-examination. The party calling the adverse
witness may rebut the testimony and may impeach the witness.
b)
Hostile or Unwilling Witnesses. If the hearing officer determines that any witness is hostile or
unwilling, the witness may be examined by the party calling the witness as if under cross-
examination.
Section 101.626
Information Produced at Hearing
In accordance with Section 10-40 of the IAPA, the hearing officer will admit evidence that is admissible under the
rules of evidence as applied in the civil courts of Illinois, except as otherwise provided in this Part.
a)
EvidenceHearsay. The hearing officer may admit heresay evidence that is material, relevant, and
would be relied upon by prudent persons in the conduct of serious affairs, unless thesuch evidence
is privileged.
b)
Admissibility of Evidence. When the admissibility of evidence depends upon a good faith
argument as to the an arguable interpretation of substantive law, the hearing officer will admit
thesuch evidence.
c)
Scientific Aarticles and Ttreatises. Relevant scientific or technical articles, treatises, or materials
may be introduced into evidence by a party. TheSuch materials are subject to refutation or
disputation through introduction of documentary evidence or expert testimony.
d)
Written Ttestimony. Written testimony may be introduced by a party in a hearing only if provided
to all other parties of record prior to the date of the hearing and only after the opposing parties
have had an opportunity to object to the written testimony and to obtain a ruling on the objections
prior to its introduction. Written testimony may be introduced by a party only if the persons
whose written testimony is introduced are available for cross-examination at hearing.
e)
Admission of Bbusiness Rrecords. A writing or record, whether in the form of any entry in a book
or otherwise made as a memorandum or record of any act, transaction, occurrence, or event, may
be admissible as evidence of the act, transaction, occurrence, or event. To be admissible, the
writing or record will have been made in the regular course of business, provided it was the
regular course of business to make thesuch a memorandum or record at the time of thesuch act,
transaction, occurrence, or event, or within a reasonable time thereafter. All other circumstances
of the making of the writing or record, including lack of personal knowledge by the entrant or
maker, may be admitted to affect the weight of the evidence, but will not affect admissibility. The
term “business,” as used in this subsection (e), includes businesses, professions, occupations, and
callings of every kind.
f)
Prior Iinconsistent Sstatements. Prior statements made under oath may be admitted to impeach a
witness if the statement is inconsistent with the witness' testimony at hearing.
32
g)
Oral and Wwritten Sstatements. Oral and written statements from participants may be taken at
hearing in accordance with Section 101.628 of this Part.
Section 101.628
Statements from Participants
a)
Oral Sstatements. The hearing officer may permit a participant, to make oral statements on the
record when time, facilities, and concerns for a clear and concise hearing record so allow.
TheSuch oral statements must be made under oath and are subject to cross-examination.
b)
Written Sstatements. Any participant may submit written statements relevant to the subject
matter at any time prior to hearing or at hearing. Participants submitting such a statement will be
subject to cross-examination by any party. Written statements submitted without the availability
of cross-examination will be treated as public comment in accordance with subsection (c) of this
Section and will be afforded lesser weight than evidence subject to cross-examination.
c)
Public Comments or Amicus Curiae Briefs. Participants may file public comments subject to the
requirements of this Section and the hearing officer's schedule for completion of the record. The
Board also allows for the filing of amicus curiae briefs by non-party participants. Amicus cCuriae
briefs will be allowed should be filed in accordance with Section 101.110 of this Part.
1)
Public comments must be filed within 14 days after the close of the last hearing unless the
hearing officer specifies a different date for submission of post-hearing comments.
However, all public comments must be filed with the Board no later than 30 days before
the decision date, unless the hearing officer orders otherwise to prevent material
prejudice. Consistent with the burden of proof in a proceeding, the hearing officer may
provide for differing filing deadlines with respect to post-hearing comments by different
persons. Pursuant to hearing officer order, rebuttal public comments may be submitted.
2)
All public comments must present arguments or comments based on evidence contained
in the record. TheSuch comments may also present legal argument citing legal
authorities.
3)
Comments must be filed with the Board. Comments will be distributed to parties and the
hearing officer by the Clerk’s office.
Section 101.630 Official Notice
Official notice may be taken of all facts of which judicial notice may be taken and of other facts within the
specialized knowledge and experience of the Board.
Section 101.632 Site Visits
Upon the request of any party or the Board’s own motion, the Board may conduct a site visit to establish a more
comprehensive record. If the site visit is part of an adjudicatory proceeding, the Board will notify all parties in
advance.
SUBPART G: ORAL ARGUMENT
Section 101.700
Oral Argument
a)
The Board may hear oral argument upon written motion of a party or the Board's own motion.
TheSuch oral argument will be transcribed by a stenographer provided by the Board and become
33
part of the record of the proceedings before the Board. The purpose of oral argument is to address
legal questions. Oral argument is not intended to address new facts.
b)
Motions for oral argument must contain arguments supporting the grant of the motion for oral
argument. In considering a motion for oral argument, the Board will consider, but is not limited to
considering, the uniqueness of the issue or proceeding and whether the issue or proceeding
involves a conflict of law.
c)
In any proceeding with a statutory decision deadline, the Board will deny the request for oral
argument if there is insufficient time to schedule oral argument and allow time for the Board to
issue its decision.
d)
If the Board grants the motion for oral argument, it will issue an order setting forth a schedule for
oral argument that may include a briefing schedule. The brief will be limited to the issues for
which oral argument was granted.
SUBPART H: SANCTIONS
Section 101.800
Sanctions for Failure to Comply with Procedural Rules, Board Orders, or Hearing Officer
Orders
a)
If any person unreasonably fails to comply with any provision of 35 Ill. Adm. Code 101 through
130 or fails to comply withany order entered by the Board or the hearing officer, including any
subpoena issued by the Board, the Board may order sanctions. The Board may order sanctions on
its own motion, or in response to a motion by a hearing officer or a party.
b)
Sanctions include, but are not limited to, the following:
1)
Further proceedings may be stayed until the order or rules are complied with, except in
proceedings with a statutory decision deadline. Proceedings with a statutory decision
deadline may be dismissed prior to the date on which decision is due;
2)
The offending person may be barred from filing any other pleading or other document
relating to any issue to which the refusal or failure relates;
3)
The offending person may be barred from maintaining any particular claim,
counterclaim, third-party complaint, or defense relating to that issue;
4)
As to claims or defenses asserted in any pleading or other document to which that issue is
material, a judgment by default may be entered against the offending person or the
proceeding may be dismissed with or without prejudice;
5)
Any portion of the offending person's pleadings or other documents relating to that issue
may be stricken and, if appropriate, judgment may be entered as to that issue; and
6) The offending person may be required to pay the amount of reasonable expenses incurred
by the other party, as a result of their non-compliance with a Board rule or Board or
hearing officer order; and
67)
The witness may be barred from testifying concerning that issue.
c)
In deciding what sanction to impose the Board will consider factors including: the relative severity
of the refusal or failure to comply; the past history of the proceeding; the degree to which the
34
proceeding has been delayed or prejudiced; and the existence or absence of bad faith on the part of
the offending party or person.
Section 101.802
Sanctions for Abuse of Discovery Procedures
The Board or the hearing officer may order that information obtained through abuse of discovery procedures be
suppressed. If a person willfully obtains or attempts to obtain information by an improper discovery method,
willfully obtains or attempts to obtain information to which he is not entitled, or otherwise abuses discovery rules,
the Board or hearing officer may enter any order provided for in this Part.
SUBPART I: REVIEW OF FINAL BOARD OPINIONS AND ORDERS
Section 101.902
Motions fFor Reconsideration
In ruling upon a motion for reconsideration, under this Section,the Board will consider factors including new
evidence, or a change in the law, or any other reason to conclude that the Board's decision was in error. (See also
Section 101.520 of this Part.)
Section 101.904
Relief from and Review of Final Opinions and Orders
a)
Upon its own motion or motion of any party, the Board may correct clerical mistakes in orders or
other parts of the record and errors therein arising from oversight or omission. TheSuch mistakes
may be so corrected by the Board before the appeal is docketed in the appellate court. Thereafter,
while the appeal is pending, thesuch mistakes may be corrected only with leave of the appellate
court. Any corrected order will be mailed to all parties and participants in that proceeding.
b)
On written motion, the Board may relieve a party from a final order entered in a contested
proceeding, for the following:
1)
Newly discovered evidence that existed at the time of hearing and that by due diligence
could not have been timely discovered;
2)
Fraud (whether intrinsic or extrinsic), misrepresentation, or other misconduct of an
adverse party; or
3)
Void order, such as an order based upon jurisdictional defects.
c)
A motion under this Section does not affect the finality of a Board order or suspend the operation
of a Board order. The motion must be filed in the same proceeding in which the order was entered
but is not a continuation of the proceeding. The motion must be supported by oath or affidavit or
other appropriate showing as to matters not of record. All parties or participants in the
proceeding must be notified by the movant as provided by Section 101.304 of this Part.
d)
A motion under subsection (b) of this Section must be filed with the Board within one year after
entry of the order except that a motion pursuant to subsection (b)(3) of this Section must be filed
within a reasonable time after entry of the order.
e)
Any response to a motion under this Section must be filed within 14 days after the filing of the
motion.
f) A motion for reconsideration of a final Board order is not a prerequisite for the appeal of that final
Board order.
Section 101.906
Judicial Review of Board Orders
35
a)
Pursuant to Sections 29 and 41 of the Act, Supreme Court Rule 335, and Section 10-50 of the
IAPA, judicial review of final Board orders is available from the appellate court.
b)
For purposes of judicial review, final Board orders are appealable as of the date of service by the
Board upon the appealing party.
c)
The procedure for stay of any final Board order during appeal will be as provided in Rule 335 of
the Rules of the Supreme Court of Illinois. (Ill. S. Ct. Rule 335.)
Section 101.908
Interlocutory Appeal
Upon motion of any party the Board may consider an interlocutory appeal in accordance with Supreme Court Rule
308. (Ill. S. Ct. Rule 308.)
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE A: GENERAL PROVISIONS
CHAPTER I: POLLUTION CONTROL BOARD
PART 102
REGULATORY AND INFORMATIONAL HEARINGS AND PROCEEDINGS
SUBPART A: GENERAL PROVISIONS
Section
102.100
Applicability
102.102
Severability
102.104
Definitions
102.106
Types of Regulatory Proposals
102.108
Public Comments
102.110
Waiver of Requirements
102.112
Other Proceedings
SUBPART B: REGULATIONS OF GENERAL APPLICABILITY, RESOURCE CONSERVATION AND RECOVERY
ACT (RCRA) AMENDMENTS, AND SITE-SPECIFIC REGULATIONS
Section
102.200
Proposal for Regulations of General Applicability
102.202
Proposal Contents for Regulations of General Applicability
102.204
Proposal of RCRA Amendments
102.206
Notice of Site-Specific RCRA Proposals
102.208
Proposal for Site-Specific Regulations
102.210
Proposal Contents for Site-Specific Regulations
102.212
Dismissal
SUBPART C: CLEAN AIR ACT AMENDMENTS (CAAA) FAST TRACK RULEMAKING
Section
102.300
Applicability
102.302
Agency Proposal
102.304
Hearings
102.306
Prefiled Testimony
36
SUBPART D: SERVICE AND FILING OF DOCUMENTS, MOTIONS, PRODUCTION OF INFORMATION,
SUBPOENAS, PREHEARING CONFERENCES, AND HEARINGS
Section
102.400
Service and Filing of Documents
102.402
Motions, Production of Information, and Subpoenas
102.404
Initiation and Scheduling of Prehearing Conferences
102.406
Purpose of Prehearing Conference
102.408
Prehearing Order
102.410
Authorization of Hearing
102.412
Scheduling of Hearings
102.414
Hearings on the Economic Impact of New Proposals
102.416
Notice of Hearing
102.418
Record
102.420
Authority of the Hearing Officer
102.422
Notice and Service Lists
102.424
Prehearing Submission of Testimony and Exhibits
102.426
Admissible Information
102.428
Presentation of Testimony and Order of Hearing
102.430
Questioning of Witnesses
SUBPART E: CERTIFICATION OF REQUIRED RULES
Section
102.500
Agency Certification
102.502
Challenge to Agency Certification
102.504
Board Determination
SUBPART F: BOARD ACTION
Section
102.600
Revision of Proposed Regulations
102.602
Adoption of Regulations
102.604
First Notice of Proposed Regulations
102.606
Second Notice of Proposed Regulations
102.608
Notice of Board Final Action
102.610
Adoption of Identical In Substance Regulation
102.612
Adoption of Emergency Regulations
102.614
Adoption of Peremptory Regulations
SUBPART G: MOTION FOR RECONSIDERATION AND APPEAL
Section
102.700
Filing of Motion for Reconsideration
102.702
Disposition of Motions for Reconsideration
102.704
Correction of Publication Errors
102.706
Appeal
Appendix A Comparison of Former and Current Rules
AUTHORITY: Implementing Sections 5, 7.2, 13(c), 13.3, 17.5, 22.4(a), 22.4(d), 22.7(d), 27, 28, 28.2, 29, and 41 of the
Environmental Protection Act (Act) [415 ILCS 5/5, 7.2, 13(c), 13.3, 17.5, 22.4(a), 22.4(d), 22.7(d), 27, 28, 28.2, 29,
and 41] and authorized by Sections 26 and 27 of the Act [415 ILCS 5/26 and 27].
37
SOURCE: Originally adopted as Chapter 1: Procedural Rules, Part II: Regulatory and Other Nonadjudicative
Hearings and Proceedings, in R70-4, 1 PCB 43, October 8, 1970; codified at 6 Ill. Reg. 8357; amended in R84-10 at 9
Ill. Reg. 1398, effective January 16, 1985; Part repealed, new Part adopted in R88-5(B) at 14 Ill. Reg. 9210, effective
May 24, 1990; amended in R90-16 at 14 Ill. Reg. 20472, effective December 11, 1990; old Part repealed, new Part
adopted in R00-20 at 24 Ill. Reg.______, effective____.
SUBPART A: GENERAL PROVISIONS
Section 102.100
Applicability
a)
This Part applies to all regulatory and informational hearings and proceedings, and must be read
in conjunction with 35 Ill. Adm. Code 101. Hearings conducted pursuant to this Part are quasi-
legislative in nature and the purpose of thesuch hearings is to gather information and comments to
guide the Board in its rulemaking process. All testimony must be sworn.
b)
All persons taking part in these hearings are participants, rather than parties as in contested cases.
Non-attorneys may represent themselves and others at regulatory hearings and may ask questions
of witnesses or give testimony or comment as allowed by the hearing officer.
Section 102.102
Severability
If any provision of this Part, or its application to any person is adjudged invalid, thesuch adjudication does not affect
the validity of this Part as a whole or of any portion not adjudged invalid.
Section 102.104
Definitions
For the purpose of this PartSubp, words and terms will have the meaning as defined in 35 Ill. Adm. Code
101.Subpart B unless otherwise provided, or unless the context clearly indicates otherwise.
Section 102.106
Types of Regulatory Proposals
a)
The Act provides for 4 types of regulatory proposals:
1)
Identical in substance rulemakings, as defined in Sections 7.2, 13.3 , 28.2 and 28.4 of the
Act [415 ILCS 5/7.2, 13.3., 28.2, and 28.4];
2)
Federally required rules, as defined in Section 28.2 of the Act [415 ILCS 5/28.2];
3)
Other regulatory proposals, both of general applicability and not of general applicability
as allowed by Sections 26, 27 and 28 of the Act [415 ILCS 5/26, 27, and 28]; and
4)
Clean Air Act fast track rulemakings as defined by Section 28.5 of the Act [415 ILCS
5/28.5].
b)
The IAPA provides for three types of rulemakings:
1)
General rulemaking pursuant to Section 5-40 of the IAPA [5 ILCS 100/5-40];
2)
Emergency rulemaking pursuant to Section 5-45 of the IAPA [5 ILCS 100/5-45]; and
3)
Peremptory rulemaking pursuant to Section 5-50 of the IAPA [5 ILCS 100/5-50].
Section 102.108
Public Comments
38
a)
The Board will accept written comments from any person concerning a regulatory proposal during
the first notice period as defined in Section 102.604 of this Part. However, when adopting
identical-in-substance regulations, the Board will accept written comments from USEPA and other
persons for at least 45 days after the date of publication of the proposed regulations or
amendments in the Illinois Register in accordance with Section 102.610 of this Part.
b)
Any person may submit written comments on any proposal within 14 days after the receipt of the
hearing transcript in Board offices unless otherwise specified by the hearing officer or the Board.
c)
Comments must be filed with the Clerk and served in accordance with 35 Ill. Adm. Code
101.Subpart C, upon the Environmental Protection Agency (Agency), Department of Natural
Resources (DNR), the Attorney General (if a participant), the proponent, and the participants on
any service list established by the hearing officer pursuant to Section 102.422 of this Part unless
otherwise specified by the hearing officer or the Board.
d)
Comments that are not timely filed or properly served will not be considered, except as allowed by
the hearing officer or the Board to prevent material prejudice.
Section 102.110
Waiver of Requirements
The Board may waive any of the non-statutory requirements of this Part upon a showing by a person that a
particular requirement would create an undue burden on that person such as where the burden of compliance
imposes financial costs that would preclude further participation, or where compliance would result in the provision
of information already provided in that proceeding.
Section 102.112
Other Proceedings
Pursuant to Section 5(d) of the Act or other applicable law, the Board may conduct such other noncontested or
informational hearings as may be necessary to accomplish the purposes of the Act or other applicable law. TheSuch
hearings may include, but are not limited to inquiry hearings to gather information on any subject the Board is
authorized to regulate.
SUBPART B: REGULATIONS OF GENERAL APPLICABILITY, RESOURCE CONSERVATION AND
RECOVERY ACT (RCRA) AMENDMENTS, AND SITE-SPECIFIC REGULATIONS
Section 102.200
Proposal for Regulations of General Applicability
Any person may submit a regulatory proposal for the adoption, amendment, or repeal of a regulation. The original
and 9 copies of each proposal must be filed with the Clerk and one copy each with the Attorney General, the
Agency, and DNR.
Section 102.202
Proposal Contents for Regulations of General Applicability
Each proponent must set forth the following in its proposal:
a)
The language of the proposed rule, including any existing regulatory language proposed to be
amended or repealed. Language being added must be indicated by underscoring, and language
being deleted must be indicated by strike-outs. The proposed rule must be drafted in accordance
with 1 Ill. Adm. Code 100.Subpart C;
b)
A statement of the reasons supporting the proposal, including a statement of the facts that support
the proposal, and a statement of the purpose and effect of the proposal, including environmental,
technical, and economic justification. The statement must discuss the applicable factors listed in
39
Section 27(a) of the Act. The statement must include, to the extent reasonably practicable, all
affected sources and facilities and the economic impact of the proposed rule;
c)
A synopsis of all testimony to be presented by the proponent at hearing;
d)
Copies of any material to be incorporated by reference within the proposed rule pursuant to
Section 5-75 of the IAPA [5 ILCS 100/5-75];
e)
Proof of service upon all persons required to be served pursuant to Section 102.422 of this Part;
f)
Unless the proponent is the Agency or DNR, a petition signed by at least 200 persons, pursuant to
Section 28 of the Act and Section 102.410(b) of this Part;
g)
When the Agency proposes a rule it believes is federally required, a certification in accordance with
Section 102.500 of this Part;
h)
When the proponent is a State agency, aFor a proposed rule that amends an existing Board rule, a
written statement or certification that the proposal amends the most recent version of the rule as
published on the Board’s Web site or as obtained from the Clerk;. When the proponent is a State
agency, the proposed rule must be submitted to the Board electronically diskette containing the
information required under subsection (a) of this Section; and
i)
When any information required under this Section is inapplicable or unavailable, a complete
justification for thesuch inapplicability or unavailability.
Section 102.204
Proposal of RCRA Amendments
In addition to satisfying the requirements of Section 102.202 of this Part, any proposal to amend the RCRA
regulations must:
a)
Indicate whether it is made pursuant to the provisions of Section 22.4(a), 22.4(b) or 22.4(c) of the
Act;
b)
Include a listing of all amendments to the corresponding federal regulations since the period
encompassed by the last amendment of the Board's RCRA rules; and
c)
Include a certificate of service indicating that a copy of the proposal has been served on the
USEPA. Service must be made at the following address:
Director, Waste Management Division
USEPA, Region V
77 W. Jackson Street
Chicago, Illinois 60604
Section 102.206
Notice of Site-Specific RCRA Proposals
a)
Public notice of hearings on site-specific RCRA proposals will be given at least 30 days before the
date of the hearing.
b)
In addition to the requirements of Section 28 of the Act, the Board, at a minimum, will give notice
of hearings on a site-specific RCRA proposal to the following persons:
1)
Federal agencies as designated by the USEPA;
40
2)
Illinois Department of Transportation;
3)
Illinois Department of Natural Resources;
4)
Illinois Department of Public Health;
5)
The Governor of any other state adjacent to the county in which the facility is located;
and
6)
Elected officials of any counties, in other states, adjacent to the county in which the
facility is located, and elected officials in any municipality, in another state, if it is the
closest population center to the facility.
c)
In addition to the methods of notice by publication of Section 28 of the Act and Section 102.416 of
this Part, the Board will give notice by broadcast over at least one radio station in the area of the
facility containing the information required by subsections (d)(2) and (d)(4) through (d)(8) of this
Section.
d)
A hearing notice on a site-specific RCRA proposal will include the following information:
1)
The address of the Board office;
2)
Name and address of the proponent and, if different, of the facility for which the
site-specific rule is sought;
3)
A brief description of the business conducted at the facility and the activity described in
the proposal;
4)
A description of the relief requested in the proposal;
5)
Name, address and telephone number of the Clerk of the Board, from whom interested
persons may obtain further information, including copies of the proposal;
6)
The name, address and telephone number of the Agency's representative in the
rulemaking;
7)
A description of any written comment period or a statement that a comment period will
be established in the future;
8)
A statement that the record in the rulemaking is available at the Board office for
inspection, except those portions that are claimed or determined to be trade secrets, and
that procedures are available whereby disclosure may be sought by the public. Any such
claim must be made in accordance with 35 Ill. Adm. Code 130;
9)
A statement that site-specific rules may be adopted pursuant to 415 ILCS 5/27 et seq. and
Section 102.202 of this Part, and a citation to the Board regulations sought to be modified;
and
10)
Any additional information considered necessary or proper.
Section 102.208
Proposal for Site-Specific Regulations
41
Any person may submit a written proposal for the adoption, amendment or repeal of a substantive site-specific
regulation. The original and 9 copies of each proposal must be filed with the Clerk of the Board and one copy each
served upon the Agency, DNR, and the Attorney General.
Section 102.210
Proposal Contents for Site-Specific Regulations
Proponents of site-specific regulations other than those relating to RCRA must comply with the requirements of
Section 102.202 of this Part in addition to the following requirements:
a)
The proposal must set forth the language of the proposed site-specific rule, including any existing
regulatory language proposed to be amended or repealed. Language being added must be
indicated by underscoring and language being deleted must be indicated by strike-outs. If the
proposed site-specific rule seeks an exemption from or modification of a rule of general
applicability, the proposed site-specific rule may not be proposed as an amendment to the general
rule. Instead, the site-specific rule must be proposed as its own Ssection;
b)
In the event that the proposed rule would replace the applicability of a general rule to the pollution
source, the proposal must specify, with supporting documentation, the reasons why the general
rule is not technically feasible or economically reasonable for the person or site. TheSuch
documentation must include relevant information on other similar persons' or sites' ability to
comply with the general rule. Where relevant to the Board’s consideration, the proposal must also
include information pertaining to
existing physical conditions, the character of the area involved,
including the character of surrounding land uses, zoning classifications,
and
the nature of the existing
air quality or receiving body of water
(Section 27(a) of the Act)
;
c)
The proposal must describe the person or site for which regulatory change is sought and the area
affected by the proposed change. The proposal must also include a detailed assessment of the
environmental impact of the proposed change, and include a description of available treatment or
control options;
d)
The proposal must demonstrate that the Board may grant the requested relief consistent with
federal law governing the subject of the proposal (e.g., Underground Injection Control program,
Resource Conservation and Recovery Act, etc.);
e)
When the proponent is a State agency, the proponent also must provide an electronic version
diskette containing the information required under subsection (a) of this Section; and
f)
When any information required under this Section is inapplicable or unavailable, the proposal
must provide a complete justification for thesuch inapplicability or unavailability.
Section 102.212
Dismissal
a)
Failure of the proponent to satisfy the content requirements for proposals under this Subpart or
failure to respond to Board requests for additional information will render a proposal subject to
dismissal for inadequacy.
b)
Failure of the proponent to pursue disposition of the proposal in a timely manner will render a
proposal subject to dismissal. In making this determination, the Board will consider factors
including the history of the proceeding and the proponent's compliance with any Board or hearing
officer orders.
c)
A proposal will be dismissed for inadequacy in cases in which the Board, after evaluating the
proposal, cannot determine the statutory authority on which the proposal is made. In all such
cases, a statement informing the proponent of the Board's basis for dismissal will be made.
42
Dismissal of a proposal will not bar a proponent from re-submitting a proposal in the absence of
any deadline imposed by applicable law or Board regulations.
d)
Any person may file a motion challenging the statutory authority or sufficiency of the proposal
pursuant to 35 Ill. Adm. Code 101.Subpart E.
SUBPART C: CLEAN AIR ACT AMENDMENTS (CAAA) FAST TRACK RULEMAKING
Section 102.300
Applicability
This Ssubpart applies to
the adoption of rules proposed by the Agency and required to be adopted by the State under the
Clean Air Act as amended by the Clean Air Act Amendments of 1990 (CAAA). A “fast-track” rulemaking proceeding is
a proceeding to promulgate a rule that the CAAA requires to be adopted. For purposes of this Section, “requires to be
adopted” refers only to those regulations or parts of regulations for which the United States Environmental Protection
Agency is empowered to impose sanctions against the State for failure to adopt such rules
. [415 ILCS 5/28.5(a), (c)]
Section 102.302
Agency Proposal
a)
When proposing a regulation required by the CAAA, the Agency must meet the following
requirements:
1)
The proposal must set forth the proposed rule, which must be drafted in accordance with
1 Ill. Adm. Code 100.Subpart C;
2)
The proposal must have a cover sheet that prominently states that the Agency proposes
the rule under Section 28.5 of the Act,
unless another provision of theis Act specifies the
method for adopting a specific rule
[415 ILCS 5/28.5(c)];
3)
The proposal must
clearly identify the provisions and portions of the federal statute,
regulations, guidance, policy statement, or other documents upon which the rule is based
[415
ILCS 5/28.5(e)(3)];
4)
The proposal must include
supporting documentation for
the rule that summarizes the basis
of the rule
[415 ILCS 5/28.5(e)(4)];
5)
The proposal must
describe in general
the alternative selected and the basis for the alternative
[415 ILCS 5/28.5(e)(5)];
6)
The proposal must summarize the economic and technical data that the Agency relied
upon in drafting the proposed rule;
7)
The proposal must include a list of any documents that the Agency directly relied upon in
drafting the proposed rule or that the Agency intends to rely upon at hearing, and copies
of the documents;
8)
The proposal must set forth
a description of the geographical area to which the rule is intended
to apply, a description of the process or processes affected, and identification by classes of the
entities expected to be affected, and a list of sources expected to be affected by the rule to the
extent known to the Agency
[415 ILCS 5/28.5(e)(8)]; and
9)
The proposal must include a diskette containing the information required under
subsection (a)(1) of this Section.
43
b)
If the proposal fails to meet any of the requirements of subsection (a) of this Section, the Board may
decide not to accept the proposal for filing.
Section 102.304
Hearings
a)
Within 14 days after the receipt of a rule the Board will file the proposed rule for first notice and
schedule all hearings. Additionally, the Board will send notice to the appropriate newspaper of
the scheduled hearing. TheSuch notice will be published by the newspaper at least 30 days prior
to the date of the hearing.
b)
The first hearing will be held within 55 days after receipt of the rule and is reserved for the
Agency’s testimony and questions of the Agency’s witnesses.
c)
Within 7 days after the first hearing, any person may request a second hearing. TheSuch a request
may be made on the record at the first hearing or in writing. If done in writing it must be filed
with the Board and served upon the service list.
d)
A second hearing will be held to hear comments on Department of Commerce and Community
Affairs’ economic impact study of the proposed rules.
At least 20 days before the hearing, the Board
shall notify the public of the hearing and make the economic impact study, or the Department of
Commerce and Community Affair’s explanation for not producing an economic impact study, available
to the public. Such public hearing may be held simultaneously or as part of any Board hearing
considering such new rules.
[415 ILCS 5/27(b)] See also Section 102.414 of this Part. The second
hearing must also permit the presentation of testimony, documents, and comments by affected
entities and all other interested parties. [415 ILCS 5/28.5(g)]
e)
The third hearing shall be scheduled to commence within 14 days after the first day of the second hearing
and shall be devoted solely to any Agency response to the material submitted at the second hearing and
to any response by other parties.
[415 ILCS 5/28.5(g)].
In order to cancel the third hearing, the
Agency must state on the record at hearing that it and the affected entities are in agreement or
notify the Board and the service list in writing.
f)
In order to meet statutory deadlines, hearing dates may be chosen by the assigned Board member
and hearing officer without consultation with the participants. CAAA hearings need only be held
in one affected area of the State.
Section 102.306
Prefiled Testimony
a)
The hearing officer will close the service list for purposes of prefiled testimony at 4:30 p.m. 16 days
before the date of hearing.
b)
Ten days before the hearing, copies of prefiled testimony must be filed with the Clerk and served
upon all people who are on the service list as closed pursuant to subsection (a) of this Section.
c)
The Board may grant a waiver of the prefiling deadline or service requirement for good cause.
d)
Participants who do not pre-file their testimony will only be allowed to testify if time remains in
that hearing day. The hearing will not be continued from day to day to accommodate participants
who do not prefile.
SUBPART D: SERVICE AND FILING OF DOCUMENTS, MOTIONS, PRODUCTION OF INFORMATION,
SUBPOENAS, PREHEARING CONFERENCES, AND HEARINGS
Section 102.400
Service and Filing of Documents
44
All documents must be served and filed in accordance with 35 Ill. Adm. Code 101.Subpart C.
Section 102.402
Motions, Production of Information, and Subpoenas
Motion practice, production of information and the issuance of subpoenas in regulatory proceedings is governed by
35 Ill. Adm. Code 101. All motions and responses must be filed with the Board and served upon the hearing officer,
the proponent, the Agency, and all persons on any service list established pursuant to Sectionsubs 102.422(b) of this
Part.
Section 102.404
Initiation and Scheduling of Prehearing Conferences
a)
To the extent consistent with any deadline for adoption of any regulations mandated by State or federal
law, prior to initiating any hearing on a regulatory proposal, the Board may assign a qualified hearing
officer who may schedule a prehearing conference between the proponents and any or all of the
potentially affected persons
. [415 ILCS 5/27(d)].
b)
The hearing officer may schedule a prehearing conference on his or her own motion, or on the
motion of the proponent or any potentially affected person. A “proponent” or “potentially
affected person” is any person, as defined by the Act and 35 Ill. Adm. Code 101.202, who
demonstrates any nexus to the source of the pollutant to be controlled by the proposal or who
shows some impact from the pollutant to be controlled by the proposal. A motion to schedule a
prehearing conference must be directed to the hearing officer.
c)
In accordance with Section 27(d) of the Act, the notice requirements of Section 28 of the Act and
Section 102.416 will not apply to such prehearing conferences. However, the hearing officer will
give notice to the proponents and any person who is included on the notice list of that proposal.
Section 102.406
Purpose of Prehearing Conference
The purpose of a prehearing conference is:
a)
To maximize understanding of the intent and application of the proposal;
b)
To reach agreement on aspects of the proposal, if possible; and
c)
To attempt to identify and limit the issues of disagreement among the participants to promote efficient
use of time at hearing.
[415 ILCS 5/27(d).].
Section 102.408
Prehearing Order
a)
No record need be kept of the prehearing conference, nor shall any participant or the Board be bound by
any discussions conducted at the prehearing conference.
[415 ILCS 5/27(d)].
b)
Notwithstanding subsection (a) of this Section,
with the consent of all participants in the prehearing
conference
, the hearing officer may enter a
prehearing order delineating issues to be heard, agreed
facts, and other matters.
[415 ILCS 5/27(d)].
c)
If the participants in the prehearing conference agree to have a prehearing order entered pursuant
to subsection (b) of this Section, the hearing officer may require that those participants furnish a
draft of a proposed order setting forth the substance of the agreements reached at the prehearing
conference. The hearing officer will enter that order if he agrees that it sets forth the substance of
the agreement. The order will identify which participants have agreed to the substance of the
order.
45
d)
A prehearing
order will not be binding on non-participants in the prehearing conference.
[415 ILCS
5/27(d)].
Section 102.410
Authorization of Hearing
a)
The Clerk will assign a docket number to any proposal. All regulatory proposals will be placed on
the Board agenda for determination of adequacy under the applicable law and this Part. The
proponent must cure any inadequacy identified by Board order before the proposal will proceed to
hearing.
b)
The Board will schedule a hearing on a proposal if it finds that thesuch proposal is
supported by an
adequate statement of reasons, is accompanied by a petition signed by at least 200 persons, is not plainly
devoid of merit and does not deal with a subject on which a hearing has been held within the preceding
six months.
[415 ILCS 5/28(a)].
c)
In accordance with Section 28(a) of the Act, if a proposal is made by the Agency, or DNR
, the
Board shall schedule a public hearing without regard to the above conditions
in subsection (b) of this
Section as soon as practicable. [415 ILCS 5/28(a)].
d)
Pursuant to Section 28 of the Act,
the Board
may also in its discretion schedule a public hearing upon
any proposal without regard to the above conditions
in subsection (b) of this Section. [415 ILCS
5/28(a)].
e)
If the Board determines that a proposal meets the requirements of subsection (b) of this Section or is
otherwise adequate under applicable law, and if any required filing fee has been paid, the Board
will issue an order accepting the proposal for hearing. Such an order will be construed as starting
the time clock for purposes of any first notice publication deadlines pursuant to Sections 28.2 and
28.5 of the Act. [415 ILCS 5/28(a)]
f)
When the Board authorizes a hearing, the Chairman will designate one or more attending Board
members and a qualified hearing officer. A member of the Board may serve as hearing officer if
otherwise qualified.
g)
The Board may consolidate proposals for hearing or decision.
Section 102.412
Scheduling of Hearings
a)
Except as otherwise provided by applicable law,
no substantive regulation shall be adopted, amended,
or repealed until after a public hearing within the area of the State concerned
. In the case of site-
specific rules, a public hearing will be held in the affected county
.
Except as otherwise provided by
applicable law,
in the case of state-wide regulations, hearings shall be held in at least two areas
. [415
ILCS 5/28(a)]
b)
If the proponent or any participant wishes to request a hearing beyond the number of hearings
specified by the hearing officer, that person must demonstrate, in a motion to the hearing officer,
that failing to hold an additional hearing would result in material prejudice to the movant. The
motion may be oral, if made at hearing, or written. The movant must show that he exercised due
diligence in his participation in the proceeding and why an additional hearing, as opposed to the
submission of written comments pursuant to Section 102.108 of this Part, is necessary.
Section 102.414 Hearings on the Economic Impact of New Proposals
46
a)
In accordance with Section 27(b) of the Act, except as otherwise provided by applicable law,
before the adoption of any proposed rules,
the Board shall request that the Department of Commerce
and Community Affairs conduct a study of the economic impact of the proposed rules. The Board shall
conduct at least one public hearing on the economic impact of those new rules
.
At least 20 days before
the hearing, the Board shall notify the public of the hearing and make the economic impact study, or the
Department of Commerce and Community Affair’s explanation for not producing an economic impact
study, available to the public. Such public hearing may be held simultaneously or as a part of any Board
hearing considering such new rules. In adopting any such new rule, the Board shall, in its written
opinion, make a determination, based upon the evidence in the public hearing record, including, but not
limited to, the economic impact study, as to whether the proposed rule has any adverse economic impact
on the people of the State of Illinois.
[415 ILCS 5/27(b)]
b)
If information of the economic impact of a proposed regulation is given at a general hearing on the
proposal, the Board need not hold a special hearing on only the economic impact.
Section 102.416
Notice of Hearing
a)
The hearing officer will set a time and place for hearing. The Clerk will give notice of the date of
the hearing as follows or as otherwise required by applicable law:
1)
By notice in the Board's Environmental Register and on the Board’s Web site;
2)
At least 20 days prior to the scheduled date of the hearing the Board shall give notice of such
hearing by public advertisement in a newspaper of general circulation in the area of the Sstate
concerned
. The notice will include,
the date, time, place and purpose of such hearing
[415
ILCS 5/28(a)]; and
3)
Where required by federal law, including air pollution and RCRA proposals, newspaper
notice will be published at least 30 days prior to the hearing date.
b)
In accordance with Section 28(a) of the Act or as otherwise required by applicable law, the Clerk
will give notice by mail to the proponent and to all persons who are on the notice list in accordance
with Section 102.422 of this Part.
c)
Hearings that are continued on the hearing record for a period of 45 days or less do not require
notice that complies with subsections (a) and (b) of this Section.
Section 102.418
Record
All oral testimony will be recorded stenographically. The proposal and all attachments, the transcript, all written
testimony, all exhibits admitted in connection with the hearing, and all written submissions filed with the Clerk
under Section 102.108 of this Part before or after the close of the hearing will constitute the record.
Section 102.420
Authority of the Hearing Officer
As necessary to conduct the regulatory hearing, tThe hearing officer will have the same authorities in rulemaking
proceedings as those set forth granted for adjudicatory matters in 35 Ill. Adm. Code 101.Subpart F.
Section 102.422
Notice and Service Lists
a)
The hearing officer will maintain a notice list for each regulatory proceeding. The notice list will
consist of those persons who have furnished their names and addresses to the hearing officer or the
Clerk’s office concerning the proposal. Notice of all Board actions and hearing officer orders will
be given to all persons included on the notice list.
47
b)
The hearing officer may establish a service list for any regulatory proceeding, in addition to the
notice list. The hearing officer may direct participants to serve copies of all documents upon the
persons listed on the service list. In deciding whether to establish a service list, the hearing officer
will consider factors including the complexity of the proceeding and the number of participants.
For purposes of fast-track rulemakings under Section 28.5 of the Act, participants of record will be
the individuals on the service list.
c)
The Board will not accept general requests to appear on all notice lists. Interested persons must
submit their names for each proceeding in accordance with subsection (a) of this Section.
Section 102.424
Prehearing Submission of Testimony and Exhibits
a)
The proponent must submit all written testimony and any related exhibits 21 days prior to the
hearing at which the witness testifies, unless the hearing officer directs otherwise to prevent
material prejudice or undue delay.
b)
The hearing officer may require the prehearing submission of testimony, questions, responses,
answers, and any related exhibits by the proponent or participants other than the proponent if the
hearing officer determines that such a procedure will provide for a more efficient hearing.
c)
The original and 9 copies of any prehearing pre-submittedtestimony, questions, answers,
responses, or exhibits must be filed with the Clerk. The hearing officer, the Agency, and, if a
participant, the Attorney General and DNR must each be served with one copy of each prehearing
pre-submittedtestimony, questions, answers, responses, or exhibits. One copy of any
prehearingpre-submitted testimony, questions, answers, responses, or exhibits must also be served
upon the proponent and each participant on any service list, unless otherwise specified or limited
by the hearing officer. TheSuch service must be initiated on or before the date that copies are filed
with the Clerk.
d)
All testimony, questions, answers, responses, and exhibits must be served and submitted in the
form required by 35 Ill. Adm. Code 101.Subpart C and labeled with the docket number of the
proceeding, the name of the witness submitting the material or exhibit, and the title of the material
or exhibit.
e)
The proponent and each participant who has filedpre-submitted testimony, questions, answers, or
responses, or exhibits before hearing must bring the number of copies designated by the hearing
officer of that materialtestimony and any exhibits to the hearing.
f)
Testimony, questions, answers, responses, and exhibits submitted prior to hearing will be entered
into the record as if read, unless the hearing officer determines that it will aid public understanding
to have the material or exhibittestimony read. All persons testifying will be sworn and will be
subject to examination. Modifications to previously submitted materialtestimony and exhibits may
be allowed by the hearing officer at hearing provided that thesuch modifications are either non-
substantive in nature or would not materially prejudice another person’s participation at hearing.
Objections to thesuch modifications are waived unless raised at hearing.
g)
Where prehearing submission of testimony, questions, answers, responses, or exhibits, is required
pursuant to subsections(a) orand(b) of this Section, any material or exhibittestimony that is not
prefiledpre-submitted in a timely manner will be allowed only as time permits pursuant to Section
102.420 of this Part,and only where its submission will not materially prejudice the proponent or
any other participant.
Section 102.426
Admissible Information
48
All information that is relevant and not repetitious or privileged will be admitted by the hearing officer.
Section 102.428
Presentation of Testimony and Order of Hearing
a)
All witnesses at hearings must be sworn;
b)
Testimony must be in narrative form; and
c)
Proponents must present testimony in support of the proposal first. Any questions or testimony in
support of or opposition to the proposal must follow as directed by the hearing officer.
Section 102.430
Questioning of Witnesses
All witnesses willmust be subject to questioning by any person. Repetitious, irrelevant, harassing, or cumulative
questioning will be prohibited by the hearing officer. The Board will not consider as substantive evidence any
unsworn information that is presented in the form of a question during questioning of any witness.
SUBPART E: CERTIFICATION OF REQUIRED RULES
Section 102.500
Agency Certification
a)
When the Agency proposes a rule which it believes to be a required rule,
as defined by Section 28.2(a)
of the Act
the Agency shall so certify in its proposal, identifying the federal law to which the proposed
rule will respond and the rationale upon which the certification is based
. [415 ILCS 5/28.2(b)]
TheSuch certification must include a citation to the specific section of the specific federal law to
which the proposed rule will respond.
b)
The Board shall either accept or reject the certification within 45 days and shall reference the
certification in the first notice of the proposal published in the Illinois Register as provided by the Illinois
Administrative Procedure Act.
[415 ILCS 5/28.2(b)]
Section 102.502
Challenge to Agency Certification
a)
If any person wishes to challenge the Agency's certification that a proposed rule is a required rule,
that person must file an objection to that certification within 21 days after the date of the Board's
order accepting a proposal for hearing. TheSuch objection must state the reasons that the objector
believes that the proposed rule is not a required rule, and must include all arguments that the
objector wishes the Board to consider. A copy of the objection must be served upon the Agency
and DNR.
b)
The Agency may file a response to any objection within 14 days after the service of that objection.
No reply by the objector will be allowed, unless the Board orders otherwise to avoid material
prejudice.
c)
No hearing will be held on any objection filed pursuant to this Section.
Section 102.504
Board Determination
a)
The Board will rule upon any objection filed pursuant to this Subpart within 60 days after the date
that the Board accepts a proposal for hearing.
49
b)
In ruling upon an objection to an Agency certification, the Board will consider all information in
the record of that proceeding, including the proposal, the objection, and the Agency response to
the objection. The burden of proof is on the objector.
c)
The Board will give notice of its determination to the objector, the Agency, DNR, and any person
who has asked to be placed on the notice list pursuant to Section 102.422 of this Part for that
proposal.
d)
Orders entered pursuant to this Section are interlocutory in nature and may be appealed only
pursuant to 35 Ill. Adm. Code 101.308.
SUBPART F: BOARD ACTION
Section 102.600
Revision of Proposed Regulations
a)
The Board may revise the proposed regulations before adoption upon its own motion or in
response to suggestions made at hearing and in written comments made prior to second notice.
No additional hearing on the revisions need be held.
b)
Unless otherwise provided by applicable law,
the Board may revise the proposed regulations after
hearing in response to objections or suggestions made by the Joint Committee on Administrative Rules
(JCAR)
pursuant to subsection (b) of Section 5.40 and subsection (a) of Section 5.110 of the Illinois
Administrative Procedure Act
. The Board may make thesuch revision where it finds:
1)
That such objections or suggestions relate to the statutory authority upon which the regulation
is based, whether the regulation is in proper form, or whether adequate notice was given; and
2)
That the record before the Board is sufficient to support such a change without further hearing.
[415 ILCS 5/28(a)]
Section 102.602
Adoption of Regulations
The Board adopts first notice, second notice and final opinions and orders in regulatory matters. Only the first notice
proposal and the final adopted rules are published by the Secretary of State in accordance with the IAPA. In
adopting any new regulation, except a required rule or an identical in substance regulation or as applicable law
otherwise provides,
the Board shall, in its written opinion, make a determination, based upon the evidence in the public
hearing record, including, but not limited to, the economic impact study, as to whether the proposed rule has any adverse
economic impact on the people of the State of Illinois
. [415 ILCS 5/27(b)]
Section 102.604
First Notice of Proposed Regulations
Except when otherwise directed by applicable law, the Board will give first notice of its proposed adoption,
amendment, or repeal of regulations pursuant to Section 5-40 of the IAPA. [5 ILCS 100/5-40]. The first notice period
will be at least 45 days, and will begin on the day that first notice is published in the Illinois Register. The Board will
accept written comments from any person concerning the proposed regulations during the first notice period.
Section 102.606
Second Notice of Proposed Regulations
a)
Except when otherwise directed by applicable law, the Board will give second notice of its
proposed adoption, amendment, or repeal of regulations to JCAR. The second notice period will
begin on the date written notice is received by JCAR, and will expire 45 days after thate date,
except as provided by Section 5-40 of the IAPA. [5 ILCS 100/5-40]. The Board will accept
comments only from JCAR during the second notice period.
50
b)
After the beginning of the second notice period, no substantive changes will be made to the
proposed regulation, except in response to objections or suggestions from JCAR. ThoseSuch
changes will be made pursuant to Section 102.600 of this Part.
Section 102.608
Notice of Board Final Action
The Board will give notice of its final action on a proposal to the proponent, the Agency, DNR, the Attorney General,
and all persons on the notice list. The Board will publish notice of its final action in the Environmental Register and
on its Web site, and will enter a written opinion stating the reasons in support of its final action.
Section 102.610
Adoption of Identical In Substance Regulation
a)
Prior to adopting iIdentical iIn sSubstance regulations, the Board will:
1)
Make available to the public a proposed opinion and order containing the text of the rules
at the Board’s Chicago Office and on the Board’s Web site;
2)
Publish the proposed regulations in the Illinois Register;
3)
Serve a copy of the proposed opinion and order on USEPA; and
4)
Solicit comments from USEPA, the Agency, the Attorney General and the public Receive
written comments from USEPA and other persons for at least 45 days after the date of
publication in the Illinois Register.
b)
After consideration of comments from USEPA, the Agency, the Attorney General and the public,
the Board will adopt the verbatim text of thesuch USEPA regulations as are necessary and
appropriate for authorization of the program. AsExcept a provided in Section 7.2 of the Act, the
Board may also make only
changes
that may be made by the Board to the federal regulations are
those changes
that are necessary for compliance with the Illinois Administrative Code, and technical
changes that in no way change the scope or meaning of any portion of the regulations
. [415 ILCS
5/7.2(a)] Also, wherever appropriate, the Board regulations will
reflect any consistent, more
stringent regulations adopted pursuant to the rulemaking requirements of Title VII of the Act and
Section 5-35 of the Illinois Administrative Procedures Act
[415 ILCS 5/7.2(a)(6)].
c)
As provided by Sections 13(c), 13.3, 17.5, 22.4(a), 22.4(d), and 22.7(d) of the Act, the provisions of
Title VII of the Act and Section 5-35 of the IAPA [5 ILCS 100/5-35] will not apply to iIdentical iIn
sSubstance rRulemakings. [415 ILCS 5/13(c), 13.3, 17.5, 22.4(a), 22.4(d), and 22.7(d)]
Section 102.612
Adoption of Emergency Regulations
a)
W
hen the Board finds that a situation exists which reasonably constitutes a threat to the public interest,
safety, or welfare, the Board may adopt regulations pursuant to and in accordance with Section 5-45 of
the
IAPA. [415 ILCS 27(c)]
b)
When the Board finds that a severe public health emergency exists, the Board may, in relation to any
proposed regulation, order that such regulation shall take effect without delay
. The Board will proceed
with any required hearings while the regulation continues in effect. [415 ILCS 5/27(c)]
Section 102.614
Adoption of Peremptory Regulations
a)
When the Board finds that a peremptory rulemaking is necessary pursuant to Section 5-50 of the
IAPA, and states in writing its reasons for that finding, the Board will adopt thatsaid peremptory
51
rulemaking upon filing a notice of rulemaking with the Secretary of State pursuant to Section 5-70
of the IAPA.
b)
Notice of thesuch peremptory rulemaking will be published in the Illinois Register in accordance
with Section 5-50 of the IAPA.
SUBPART G: MOTION FOR RECONSIDERATION AND APPEAL
Section 102.700
Filing of Motion for Reconsideration
Motion for reconsideration or modification of any Board order taking substantive action on a regulatory proposal
must be filed in accordance with 35 Ill. Adm. Code 101.91002. The contents of such motions are governed by 35 Ill.
Adm. Code 101.Subpart IJ.
Section 102.702
Disposition of Motions for Reconsideration
a)
After commencement of the second notice period, no substantive changes may be made to a
proposed rulemaking unless they are made in response to an objection or suggestion of JCAR in
accordance with Section 5-40(c) of the IAPA. [5 ILCS 100/5-40(c)] Therefore, submission of
second notice of a proposal to JCAR will preclude the Board from revising that proposal in
response to a motion for reconsideration. However, the Board may resubmit a rule for first notice
if necessary to prevent material prejudice.
b)
An adopted rule becomes effective upon the filing of that rule with the Secretary of State.
Therefore, the Board is precluded from allowing a motion for reconsideration of a final order
adopting a rule, if that rule has been filed with the Secretary of State.
Section 102.704
Correction of Publication Errors
The Board may make technical corrections to proposed or adopted rules, published in the Illinois Register or filed
with the Secretary of State, only in accordance with 1 Ill. Adm. Code 100.240. No hearing need be held on such
corrections.
Section 102.706
Appeal
Any final Board order may be appealed to the appellate court within 35 days afterofthe service of that order,
pursuant to Sections 29 and 41 of the Act. [415 ILCS 5/29 and 41].
52
APPENDIX A Comparison of Former and Current Rules
The following appendix compares the former procedural rules (in effect on December 31, 2000) with the current
procedural rules (effective January 1, 2001).
FORMER PART 102
CURRENT SECTION
102.100
102.100
102.101
102.104
102.102
102.106
102.103
102.110
102.104
102.112
102.120
102.200
102.121
102.202
102.122
102.212
102.123
102.204
102.124
102.206
102.140
102.208
101.141
102.210
102.142
102.212
102.160
102.410
102.161
102.412
102.162
102.416
102.163
102.206
102.164
102.418
102.180
102.414
102.200
102.500
102.201
102.502
102.202
102.504
102.220
102.420
102.221
102.422
102.240
102.404
102.241
102.406
102.242
102.408
102.260
102.402
102.261
102.402
102.262
102.402
102.280
102.424
102.281
102.418
102.282
102.426
102.283
102.428
102.284
102.430
102.285
102.418
102.320
102.108
102.341
102.602
102.342
102.604
102.343
102.606
102.344
102.608
102.345
102.610
102.346
102.612
102.347
102.614
102.360
102.700
53
102.361
102.702
102.362
102.704
102.363
102.706
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE A: GENERAL PROVISIONS
CHAPTER I: POLLUTION CONTROL BOARD
PART 103
ENFORCEMENT
SUBPART A: GENERAL PROVISIONS
Section
103.100
Applicability
103.102
Severability
103.104
Definitions
103.106
General
SUBPART B: COMPLAINT, REQUEST FOR INFORMAL AGENCY INVESTIGATION, SERVICE, AND
AUTHORIZATION OF HEARING
Section
103.200
Who May File
103.202
Parties
103.204
Notice, Complaint, and Answer
103.206
Adding Parties
103.208
Request for Informal Agency Investigation
103.210
Notice of Complaint
103.212
Hearing on Complaint
SUBPART C: SETTLEMENT PROCEDURE
Section
103.300
Request for Relief from Hearing Requirement in State Enforcement Proceeding
103.302
Contents of Proposed Stipulation and Settlement Agreement
103.304
Hearing on Proposed Stipulation and Settlement Agreement
103.306
Board Order on Proposed Stipulation and Settlement Agreement
SUBPART D: PROCEEDINGS INVOLVING RCRA PERMITS
Section
103.400
Purpose, Scope, and Applicability
103.402
Interim Order
103.404
Joinder of the Agency
103.406
Draft Permit or Statement
103.408
Stipulated Draft Remedy
103.410
Contents of Public Notice
103.412
Public Comment
103.414
Hearing
103.416
Contents of Board Order
SUBPART E: IMPOSITION OF PENALTIES, FEES, AND COSTS
54
Section
103.500
Default
103.502 Civil Penalties
103.5042
Civil Penalties Method of Payment
APPENDIX A Comparison of Former and Current Rules
AUTHORITY: Implementing Sections 5, 7.2, 13(c), 13.3, 17.5, 22.4(a), 22.4(d), 22.7(d), 27, 28, 28.2, 29, 30, 31,
and41, and 42 of the Environmental Protection Act (Act) [415 ILCS 5/5, 7.2, 13(c), 13.3, 17.5, 22.4(a), 22.4(d),
22.7(d), 27, 28, 28.2, 29, 30, 31,and 41, and 42] and authorized by Sections 26 and 27 of the Act [415 ILCS 5/26 and
27].
SOURCE: Procedural rules adopted at 3 Ill. Reg. 23, p. 96, effective May 29, 1983; repealed by operation of law
effective October 1, 1984; new rules adopted at 9 Ill. Reg. 107, effective December 21, 1984; oOld Part repealed, new
Part adopted in R00-20 at 24 Ill. Reg._____, effective____.
SUBPART A: GENERAL PROVISIONS
Section 103.100
Applicability
a)
This Part applies to proceedings before the Illinois Pollution Control Board (Board) concerning
complaints alleging violations of the Environmental Protection Act (Act), regulations, and orders of
the Board pursuant to Section 31 of the Act.
b)
This Part must be read in conjunction with 35 Ill. Adm. Code 101, which contains procedures
generally applicable to all of the Board’s adjudicatory proceedings. In the event of a conflict
between the requirements of 35 Ill. Adm. Code 101 and those of this Part, the provisions of this
Part apply.
Section 103.102
Severability
If any provision of this Part or its application to any person is adjudged invalid, thesuch adjudication does not affect
the validity of this Part as a whole or of any portion not adjudged invalid.
Section 103.104
Definitions
For the purpose of this Part, words and terms will have the meaning as defined in 35 Ill. Adm. Code 101.Subpart B
unless otherwise provided, or unless the context clearly indicates otherwise.
Section 103.106
General
Enforcement proceedings may be initiated by the Attorney General of the State of Illinois or
any person may file with
the Board a complaint. . .against any person allegedly violating this Act or any rule or regulation thereunder or any permit
or term or condition thereof.
[415 ILCS 5/31(d)]. Complaints filed by persons other than the Attorney General or a
State’s Attorney will be known as citizen’s complaints.
SUBPART B: COMPLAINT, REQUEST FOR INFORMAL AGENCY INVESTIGATION, SERVICE, AND
AUTHORIZATION OF HEARING
Section 103.200
Who May File
Pursuant to Section 31 of the Act, an enforcement proceeding may be commenced by any person.
55
Section 103.202
Parties
a)
The person initiating an enforcement proceeding must be named the complainant. Any adverse
party must be named the respondent. If the Agency is requested by the Board to conduct an
investigation pursuant to Section 30 of the Act, the Board will name the Agency as a “party in
interest” pursuant to 35 Ill. Adm. Code 101.404. Upon motion of the Agency, the Board may align
the Agency with any other party or parties as appropriate.
b)
With leave of the Board and in accordance with Section 103.206 of this Part, cross-complainants,
and counter-complainants, and third-party complainants may be named appear as parties.
c)
Misnomer of a party is not a ground for dismissal; the name of any party may be corrected at any
time.
Section 103.204
Notice, Complaint, and Answer
a)
An enforcement proceeding will be commenced by the service of a notice and complaint by
registered or certified mail, messenger service, or personal service upon all respondents and the
filing of 1 original and 9 copies of the notice and complaint with the Clerk.
b)
The notice must be directed to the respondents notifying them of the filing of the accompanying
complaint and that they may be required to attend a hearing at a date set by the Board.
c)
The complaint filed by the Attorney General on behalf of the People of the State of Illinois must be
captioned in accordance with 35 Ill. Adm. Code 101.Appendix A, Illustration A and contain:
1)
A reference to the provision of the Act and regulations thatwhich the respondents are
alleged to be violating;
2)
The dates, location, events, nature, extent, duration, and strength of discharges or
emissions and consequences alleged to constitute violations of the Act and regulations.
The complaint must advise respondents of the extent and nature of the alleged violations
to reasonably allow preparation of a defense; and
3)
A concise statement of the relief thatwhich the complainant seeks.
d) A citizen’s complaint may be filed in conformance with subsection (c) of this Section.
de)
Except as provided in subsection (ef) of this Section, the respondent maymust file an answer within
60 days after receipt of the complaint if respondent wants to deny any allegations in the complaint.
All material allegations of the complaint will be taken as admitted if no answer is filed or if not
specifically denied by the answer, unless respondent asserts a lack of knowledge sufficient to form
a belief. Any facts constituting an affirmative defense must be plainly set forth before hearing in
the answer or in a supplemental answer, unless the affirmative defense could not have been
known before hearing.
ef)
If the respondent timely files a motion under Section 103.212(b) or 35 Ill. Adm. Code 101.506, the
60-day period to file an answer described in subsection (de) of this Section will be stayed. The stay
will begin when the motion is filed and end when the Board disposes of the motion.
fg)
Any party serving a complaint upon another party must include the following language in the
noticecomplaint: “Failure to file an answer to this complaint within 60 days may have severe
consequences. Failure to answer will mean that all allegations in the complaint will be taken as if
56
admitted for purposes of this proceeding. If you have any questions about this procedure, you
should contact the hearing officer assigned to this proceeding, the Clerk’s Office or an attorney.”
Section 103.206
Adding Parties
a) The Board, on its own motion or the motion of a respondent, may order a person to be added as a
respondent if a complete determination of a controversy cannot be had without the presence of the
person who is not already a party to the proceeding.
b) If the Board orders a person to be added as a respondent pursuant to subsection (a) of this Section,
the Board will grant the complainant leave to file an amended complaint that sets forth a claim
against the added respondent. The amended complaint must meet the requirements of Section
103.204 of this Subpart.
c) Misjoinder and nonjoinder of parties with respect to enforcement proceedings are governed by 35
Ill. Adm. Code 101.403(b).
d) If a party wishes to file a counter-complaint, cross-complaint, or third-party complaint, the party
must move the Board for leave to file the pleading. If a party wishes to file an amendment to a
complaint, counter-complaint, cross-complaint, or third-party complaint that sets forth a new or
modified claim against another person, the party who wishes to file the pleading must move the
Board for leave to file the pleading.
e) The pleading sought to be filed pursuant to subsection (d) of this Section must:
1)
Set forth a claim that arises out of the occurrence or occurrences that are the subject of the
proceeding; and
2) Meet the requirements of Section 103.204 of this Subpart.
a) If a complete determination of the controversy cannot be had without the presence of a person who is
not already a party to the proceeding, the Board, on the motion of a respondent, may order the person to be
added as a respondent.
1) The movant must serve, personally or by certified mail, return receipt requested, the
person sought to be added with a copy of the complaint, all Board orders and hearing
officer orders to date, and the motion to add a respondent. The movant also must serve
the complainant with a copy of the motion to add a respondent.
2) The person sought to be added and the complainant each may file a response to the
motion to add a respondent within 14 days after the respective service described in
subsection (a)(1) of this Section.
b) If a complete determination of a controversy cannot be had without the presence of a person who is not
already a party to the proceeding, the Board, on its own motion, may order the person to be added as a
respondent.
c) If the Board orders a person to be added as a respondent pursuant to subsection (a) or (b) of this
Section, the Board will grant the complainant leave to file an amended complaint that sets forth a claim in
the complainant’s favor against the added respondent. The complainant must serve the added respondent,
personally or by certified mail, return receipt requested, with the amended complaint. The amended
complaint must meet the requirements of Section 103.204 of this Subpart. The added respondent may file
an answer under Section 103.204(e) of this Subpart or a responsive motion under Section 103.212(b) of this
Subpart or 35 Ill. Adm. Code 101.506. Failure of the complainant to file an amended complaint in
57
accordance with the Board’s grant of leave to file an amended complaint under this subsection may subject
the complainant’s action to dismissal.
d) With respect to a counter-complaint, cross-complaint or third party complaint, subsections (a), (b) and
(c) of this Section apply to adding, as a counter-respondent, cross-respondent or third-party respondent,
respectively, a person who is not already a party to the proceeding.
e) If a party wishes to file a counter-complaint, cross-complaint or third-party complaint, the party must
move the Board for leave to file the document. If a party wishes to file an amendment to a complaint,
counter-complaint, cross-complaint or third-party complaint that sets forth a new or modified claim in its
favor against another person, whether or not the person against whom the claim is made is already a party
to the proceeding, the party who wishes to file the document must move the Board for leave to file the
document.
1) The document sought to be filed must:
A) set forth a claim that arises out of the occurrence or occurrences that are the subject of the
proceeding; and
B) meet the requirements of Section 103.204.
2) The movant must serve the person against whom the claim is made with a copy of the
document and the motion for leave to file the document. If the person against whom the
claim is made is not already a party to the proceeding, the movant must serve the person
personally or by certified mail, return receipt requested.
3) The person against whom the claim is made may file a response to the motion for leave to
file the document within 14 days after the service described in subsection (e)(2) of this
Section.
f) If the Board grants a motion for leave to file a document pursuant to subsection (e) of this Section, the
time period for the person against whom the claim is made to file an answer under Section 103.204(e) or a
responsive motion under Section 103.212 (b) or 35 Ill. Adm. Code 101.506 will begin when the Board serves
the person with a copy of the Board’s order that grants the motion for leave to file the document.
Section 103.208
Request for Informal Agency Investigation
a)
Any person may Torequest an informal Agency investigation by submitting a request to the Board.,
a citizen may submit to the Board an informal investigation request.
b)
The Board will forward the request to the Agency with a copy to the person requesting the
investigation. The Agency must send an acknowledgment of receipt of the informal investigation
request to the Board., must inform the citizen and the Board of the results of the investigation or its
decision not to investigate
c)
The Board will take no further action upon the request for informal investigation beyond the action
described in subsection (b) of this Section.
Section 103.210
Notice of Complaint
a)
In addition to the notice of hearing requirements set forth in 35 Ill. Adm. Code 101., tThe Office of
the Attorney General or the State’s Attorney of the county in which the alleged violation
occurredAgency, when complainant, must give notice of each complaint and hearing at least 21
days before the hearing to:
58
1)
any person that has complained to the Agency respecting the respondent within the six
months preceding the date of the complaint
;
and
2)
to any person in the county in which the offending activity occurred that has requested notice
of enforcement proceedings.
[415 ILCS 5/31(c)(1)].
b)
Failure to comply with the provisions of this Section may not be used as a defense to an
enforcement proceeding, but any person adversely affected by thesuch failure of compliance may
upon motion to the hearing officer have the hearing postponed if prejudice is shown.
Section 103.212
Hearing on Complaint
a)
Any person may file with the Board a complaint. . . against any person allegedly violating theis Act or
any rule or regulation thereunder or any permit or term or condition thereof
. Such a complaint is
known as a citizen’s complaint. When the Board receives a citizen’s complaint,
unless the Board
determines that such complaint is duplicitous or frivolous, it shall schedule a hearing.
[415 ILCS
5/31(d)]. The definition for duplicitous and frivolous can be found at 35 Ill. Adm. Code
101.Subpart B.
b)
Motions made by respondents alleging that a citizen’s complaint is duplicitous or frivolous must be
filed no later than 30 days following the date of service of the complaint upon the respondent.
Motions under this subsection may be made only with respect to citizen’s enforcement
proceedings. Timely filing the motion will, pursuant to Section 103.204(ef) of this Subpart, stay the
60 day period for filing an answer to the complaint.
c)
The Board will automatically set for hearing all complaints filed by the Attorney General or a
State’s Attorney on behalf of the People of the State of Illinois.
d)
The Board in its discretion may hold a hearing on the violation and a separate hearing on the
remedy.
SUBPART C: SETTLEMENT PROCEDURE
Section 103.300
Request for Relief from Hearing Requirement in State Enforcement Proceeding
a)
Whenever a complaint has been filed on behalf of the Agency or by the People of the State of Illinois, the
parties may file with the Board a proposed stipulation and settlement agreement accompanied by a
request for relief from the requirement of a hearing
pursuant to Section 31(c)(2) of the Act. [415 ILCS
5/31(c)(2)]. The proposed stipulation and settlement agreement must conform to the statement
required for settlement submissions at hearing in Section 103.302 of this Part.
b)
Unless the Board, in its discretion, concludes that a hearing will be held, the Board will cause
notice of the proposed stipulation and settlement, and request for relief, to be published and sent,
in the same manner as is required for hearing, by the Clerk’s office. The notice will include a
statement that any person may file with the Clerk of the Board a written demand for a hearing
within 21 days after publication of the notice. TheSuch written demand for hearing must clearly
state that a public hearing is requested and should indicate the assigned Board Docket number and
respondent’s name in the matter.
c)
If any person files a timely written demand for a hearing, the Board will deny the request for relief
from a hearing and will hold a hearing in accordance with the notice provisions of Section 31(c)(1)
of the Act. [415 ILCS 5/31(c)(2)] A copy of the proposed stipulation and settlement will be
entered into and presented for the record.
59
d) If a hearing is scheduled pursuant to subsection (c) of this Section, the complainant(s) do not have
to present a
prima facie case before the hearing officer. A copy of the proposed stipulation and
settlement will be entered into and presented for the record.
1) A
ll such hearings shall be open to the public, and any person may submit written statements to
the Board in connection with the subject thereof. In addition, the Board may permit any
person to offer oral testimony
. [415 ILCS 5/32]
2) In addition to their statutory participation rights, members of the public present at the
hearing may participate as provided in 35 Ill. Adm. Code 101.110.
Section 103.302
Contents of Proposed Stipulation and Settlement Agreement
No proceeding pending before the Board will be disposed of or modified without an order of the Board. A proposed
stipulation and settlement agreement must contain a written statement, signed by the parties or their authorized
representatives, outlining the nature of, the reasons for, and the purpose to be accomplished by the settlement.
TheSuch written statement must include:
a)
A full stipulation of all material facts pertaining to the nature, extent, and causes of the alleged
violations proposed to be settled;
b)
The nature of the relevant parties' operations and control equipment;
c)
Facts and circumstances bearing upon the reasonableness of the emissions, discharges, or deposits
involved including:
1)
the character and degree of injury to, or interference with the protection of the health, general
welfare and physical property of the people
; [ILCS 5/33(c)(I)]
2)
the social and economic value of the pollution source;
3)
the suitability or unsuitability of the pollution source to the area in which it is located,
including the question of priority of location in the area involved;
4)
the technical practicability and economic reasonableness of reducing or eliminating the
emissions, discharges or deposits resulting from such pollution source; and
5)
any subsequent compliance.
[415 ILCS 5/33(c)]
d) Details as to future plans for compliance, including a description of additional control measures
and the dates for their implementation, if any; and
e) The proposed penalty, if any.
Section 103.304
Hearing on Proposed Stipulation and Settlement Agreement
When the parties submit a proposed stipulation and settlement agreement to the hearing officer at hearing, or when
the Board orders that a hearing be held in accordance with Section 103.300(c) of this Part, the hearing officer will
conduct a hearing in which interested persons may make statements with respect to the nature of the alleged
violation and its impact on the environment, together with their views on the proposed stipulation and settlement
agreement. TheSuch statements must be in accordance with 35 Ill. Adm. Code 101.628.
Section 103.306
Board Order on Proposed Stipulation and Settlement Agreement
60
a)
The Board will consider thesuch proposed settlement and stipulation agreement and the hearing
record. The Board may accept, suggest revisions in, reject the proposed settlement and stipulation
agreement, or direct further hearings as it deems appropriate. Where a National Pollutant
Discharge Elimination System (NPDES) permit is involved in the settlement, notice of settlement
must be published in the Environmental Register at least 30 days prior to thesuch settlement.
b)
If the Board determines that a settlement involves or may involve the issuance or modification of a
Resource Conservation Recovery Act (RCRA) permit , it will enter an interim order pursuant to
Section 103.402 of this Part.
SUBPART D: PROCEEDINGS INVOLVING RCRA PERMITS
Section 103.400
Purpose, Scope, and Applicability
a)
This Subpart applies when the Board finds in an interim order that an enforcement proceeding
involves issuance or modification of a RCRA permit.
b)
Enforcement proceedings that involve issuance or modification of a RCRA permit include those in
which, to grant complete relief, it appears that the Board will have to:
1)
Revoke a RCRA permit;
2)
Order a RCRA permit issued or modified;
3)
Enter an order that could require actions thatwhich would be different from the
conditions of a RCRA permit or 35 Ill. Adm. Code 724 or 725; or
4)
Enter an order directing facility closure or modification after a finding that a facility was
operating without a RCRA permit and that one was required.
c)
These procedures provide methods by which the Board will formulate a compliance plan, and, if
necessary, direct the issuance or modification of a RCRA permit.
Section 103.402
Interim Order
a)
The Board will enter an interim order invoking the procedures of this Subpart on its own motion or
on the motion of any party. Before the Board enters an interim order the parties must develop,
through hearings or admissions pursuant to 35 Ill. Adm. Code 101.Subpart F, a sufficient record to
support the findings thatwhich the Board must make in subsection (b) of this Section.
b)
An interim order invoking the procedures of this Subpart will include:
1)
A finding or proposed finding of violation and any penalty or proposed monetary
penalty;
2)
A finding that the proceeding is an enforcement action that involves or may involve the
issuance or modification of a RCRA permit;
3)
Joinder of the Agency if it is not already a party; and
4)
A time schedule for filing by the Agency of a partial draft permit.
c)
The interim order is not a final order and may be appealed only with leave of the Board.
61
Section 103.404
Joinder of the Agency
If the Board directs that the Agency be joined, the Clerk will send, by messenger or by certified mail addressed to the
Agency, a copy of the Board Order requiring joinder. TheSuch mailing will constitute service of process upon the
Agency.
Section 103.406
Draft Permit or Statement
a)
Within 60 days after entry of an interim order, the Agency must file and serve on all parties either
a partial draft permit or a statement that no RCRA permit needs to be issued or modified.
b)
The partial draft permit must be in compliance with the requirements of 35 Ill. Adm. Code 705.141
and must include such conditions as the Agency finds are necessary to correct the violations found
in the interim order.
c)
The Agency may confer with other parties and enter into agreements as to the substance of the
partial draft permit thatwhich it will recommend to the Board. The Agency must disclose any
such conferences or agreements in the proposed draft permit. TheSuch agreements do not bind the
Board.
d)
If the Agency issues a statement that no RCRA permit needs to be issued or modified, the
remaining procedures of this Ssubpart will not be followed, unless the Board determines otherwise.
Section 103.408
Stipulated Draft Remedy
a)
The parties may agree to a stipulated draft remedy.
b)
A stipulated draft remedy must include the following:
1)
Proposed mandatory orders that the parties agree should be included in the Board's final
order, which may include one or more of the following:
A)
An order to cease and desist conducting regulated activities;
B)
An order to close a facility or unit;
C)
An order to execute a post-closure care plan;
D)
A compliance plan, including a time schedule to assure compliance with
regulations in the shortest possible time;
E)
An order to provide a performance bond or other financial assurance;
F)
An order to apply for a permit or permit modification; and
G)
An order revoking a permit.
2)
A partial draft permit or statement as provided by Section 103.406 of this Part.
3)
A statement as to whether or not the stipulation is divisible for purposes of Board
determinations.
62
c)
All parties, including the Agency, must sign the stipulated draft remedy before notice is given
pursuant to Section 103.410 of this Part.
Section 103.410
Contents of Public Notice
a)
In addition to all parties, the Agency must serve a copy of any partial draft permit on USEPA at
the address listed in 35 Ill. Adm. Code 101.Subpart C.
b)
In addition to the requirements of the Act and Section 103.2108 of this Part, the Agency must, at a
minimum, give notice of the filing of a partial draft permit to the following persons:
1)
Federal agencies as designated by USEPA;
2)
Illinois Department of Transportation;
3)
Illinois Department of Natural Resources;
4)
Illinois Department of Public Health;
5)
The Governor of any other state adjacent to the county in which the facility is located;
and
6)
Elected officials of any counties, in other states, adjacent to the county in which the
facility is located, and elected officials in any municipality, in another state, if it is the
closest population center to the facility.
c)
In addition to the methods of notice by publication of Section 103.208 of this Part, the Agency must
give notice by broadcast over at least one radio station in the area of the facility containing the
information required by subsections (d)(2), (d)(4) and (d)(6) through (d)(8).
d)
A notice of a partial draft permit must include the following information:
1)
The address of the Board office;
2)
Name and address of the respondent and, if different, of the facility subject to the
enforcement proceeding;
3)
A brief description of the business conducted at the facility and the activity thatwhich is
the subject of the enforcement proceeding;
4)
A statement of the violations the Board has found or has proposed to find;
5)
A statement that the Agency has filed a partial draft permit;
6)
Name, address and telephone number of the Clerk of the Board, from whom interested
persons may obtain further information, including copies of the partial draft permit or
stipulated remedy;
7)
A notice of a hearing, the address of the Board, a statement that a hearing will be held
and that the record will remain open for 45 days after the filing of the partial draft or
stipulated remedy for written comments;
8)
A statement that the record in the proceeding is available at the Board office for
inspection, except those portions thatwhich are claimed or determined to be trade secrets,
63
and that procedures are available whereby disclosure may be sought by the public in
accordance with 35 Ill. Adm. Code 130;
9)
A statement that enforcement proceedings are considered pursuant to 415 ILCS 5/30
et
seq
.; and
10)
Any additional information considered necessary or proper.
Section 103.412
Public Comment
Any person, including USEPA, may comment on the partial draft permit or stipulated draft remedy within 45 days
after it has been filed with the Board and notice given pursuant to Section 103.410 of this Part. Parties will receive
distributions from the Clerk’s Office in accordance with 35 Ill. Adm. Code 101.628(c)(3).
Section 103.414
Hearing
a)
The hearing officer, after appropriate consultation with the parties, will set a time and place for the
hearing to be held not less than 30 days after the filing of the partial draft permit or stipulated
remedy.
b)
The hearing will be held in the county in which the facility is located, in the population center in
thesuch county closest to the facility.
c)
The Clerk in consultation with the hearing officer will give notice of the hearing to the persons
entitled to notice in Sections 103.2108 and 103.410 of this Part, and to any other persons who have
commented, requested to comment or requested notice, and to any persons on a mailing list
provided by the Agency.
d)
Notice will be mailed not less than 30 days before the hearing.
e) Failure to comply with the provisions of this Section may not be used as a defense to an
enforcement proceeding, but any person adversely affected by such failure of compliance may
upon motion to the hearing officer or Board have the hearing postponed if prejudice is shown.
f) Whenever a proceeding before the Board may affect the right of the public individually or
collectively to the use of community sewer or water facilities provided by a municipality owned or
publicly regulated, the Board will, at least 30 days prior to the scheduled date for the first hearing
in such proceeding, give notice of the date, time, place, and purpose of such hearing by public
advertisement in a newspaper of general circulation in the area of the state concerned.
Section 103.416
Contents of Board Order
a)
The Board will not enter an order that would require the issuance or modification of a RCRA
permit unless the public notice, public comment and hearing procedures of this Ssubpart have been
followed.
b)
If the Board determines that, to grant complete relief, it must order the issuance or modification of
a RCRA permit, its final order will include an order directing the Agency to issue or modify the
RCRA permit, which may take one of the following forms:
1)
An order to issue or modify a permit in conformance with a draft permit;
2)
An order to issue or modify a permit in conformance with a draft permit as modified by
the Board order; or
64
3)
Guidelines for issuance or modification of a permit in conformance with the order and
other applicable regulations.
c)
If the order specifies a schedule leading to compliance with the Act and Board rules:;
1)
TheSuch schedule will require compliance as soon as practicable; and
2)
The order may require the posting of sufficient performance bond or other security to
assure correction of thesuch violation within the time prescribed.
SUBPART E: IMPOSITION OF PENALTIES, FEES, AND COSTS
Section 103.500
Default
The procedures for default can be found at 35 Ill. Adm. Code 101.608.
Section 103.502 Civil Penalties
Civil penalties will be determined pursuant to Sections 33(c) and 42 of the Act. [415 ILCS 5/33(c) and 42]
Section 103.5042
Civil Penalties Method of Payment
a)
Payment of the penalty must be made by certified or cashier’s check, money order, or in
installments by the foregoing means after execution of a promissory note containing an agreement
for judgment.
b)
All remittances must be made payable to the Environmental Protection Trust Fund or such other
fund as specified by the Board.
c)
Any such penalty not paid within the time prescribed in the Board order will incur interest at the
rate set forth in subsection (a) ofSection 1003(a) of the Illinois Income Tax Act [35 ILCS 5/1003(a)].
65
APPENDIX A Comparison of Former and Current Rules
The following appendix compares the former procedural rules (in effect on December 31, 2000) with the current
procedural rules (effective January 1, 2001).
FORMER PART 103
CURRENT SECTION
103.101
102.100
103.120
103.200
103.121
103.202
103.122
103.204
103.123
101.204
103.124
103.212
103.125
101.600
101.602
103.140
101.Subpart E
103.141
101.406
101.408
103.206
103.142
101.502
101.510
103.161
101.616
103.162
101.618
103.163
101.622
103.180
103.Subpart C
103.200
101.610
103.204
101.626
103.206
101.630
103.207
101.632
103.208
101.626
103.209
101.624
103.220
103.500
101.608
103.221
101.604
103.224
103.416
103.Subpart H
101.Subpart I
103.Subpart I
103.Subpart D
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE A: GENERAL PROVISIONS
CHAPTER I: POLLUTION CONTROL BOARD
PART 104
REGULATORY RELIEF MECHANISMS
SUBPART A: GENERAL PROVISIONS
Section
104.100
Applicability
104.102
Severability
104.104
Definitions
SUBPART B: VARIANCES
66
Section
104.200
General
104.202
Filing Requirements
104.204
Petition Content Requirements
104.206
Resource Conservation and Recovery Act (RCRA) Variance Petition Contents
104.208
Consistency with Federal Law
104.210
Petition for Extension of Variance
104.212
Motion for Modification of Internal Variance Compliance Dates
104.214
Agency’s Notice of Petition
104.216
Agency Investigation and Recommendation
104.218
Agency Recommendation to RCRA Variance
104.220
Response to Agency Recommendation
104.222
Stipulations
104.224
Objections to Petition, Written Comments and Request for Hearing
104.226
Amended Petition and Amended Recommendation
104.228
Insufficient Petition
104.230
Dismissal of Petition
104.232
Calculation of Decision Deadline
104.234
Hearing
104.236
Hearing Procedures
104.238
Standard of Review
104.240
Certificate of Acceptance
104.242
Term of Variance
104.244
Variance Conditions
104.246
Performance Bonds
104.248
Objection to Conditions
104.250 Revocation
SUBPART C: PROVISIONAL VARIANCES
Section
104.300
Applicability
104.302
Board Action
104.304
Initiating a Request
104.306
Notice
104.308
Term
104.310
Simultaneous Variance Prohibition
SUBPART D: ADJUSTED STANDARDS
Section
104.400
General
104.402
Initiation of Proceeding
104.404
Request to Agency to Join as Co-Petitioner
104.406
Petition Content Requirements
104.408
Petition Notice Requirements
104.410
Proof of Petition Notice Requirements
104.412
Effect of Filing a Petition: Stay
104.414
Dismissal of Petition
104.416
Agency Recommendation and Petitioner Response
104.418
Amended Petition, Amended Recommendation, and Amended Response
104.420
Request for Public Hearing
104.422
Public Hearing
67
104.424
Hearing Notice
104.426
Burden of Proof
104.428 Board Action
APPENDIX A Comparison of Former and Current Rules
AUTHORITY: Subparts B and C: Implementing Sections 5, 35, 36, 37 and 38 of the Environmental Protection Act
(Act) [415 ILCS 5/5, 35, 36, 37, and 38] and authorized by Sections 26 and 27 of the Act [415 ILCS 5/26 and 27].
Subparts D through I: Implementing Sections 5, 14.2(c), 22.4, 27, 28, 28.1, 28.5 and 39.5 of the Act [415 ILCS 5/5,
14.2(c), 22.4, 27, 28, 28.1, 28.5, 26 and 39.5] and authorized by Sections 26 and 27 of the Act [415 ILCS 5/26 and
27].
SOURCE: Subpart B: Originally adopted as Chapter I: Procedural Rules, Part IV: Variances, in R70-4, at 1 PCB 43,
October 8, 1970; amended in R77-16, 29 PCB 503, at 2 Ill. Reg. 16, p. 3, effective May, 1978, amended in R79-9, 35
PCB 433, at 3 Ill. Reg. 51, p. 128, effective December 7, 1979; amended in R80-12, 40 PCB 451, at 5 Ill. Reg. 2763,
effective March 2, 1981; codified at 6 Ill. Reg. 8357; amended in R84-10, 62 PCB 87, at 9 Ill. Reg. 1409, effective
January 16, 1985; Old Part repealed, new Part adopted in R00-20 at 24 Ill. Reg. _____, effective ______________.
SUBPART A: GENERAL PROVISIONS
Section 104.100
Applicability
a)
This Part applies to adjudicatory proceedings before the Board that provide relief from
environmental regulations under certain circumstances as set forth in Titles VII and IX of the Act.
Specifically, this Part applies to regulatory relief mechanisms, meaning variances, provisional
variances and adjusted standards.
b)
This Part must be read in conjunction with 35 Ill. Adm. Code 101, which contains procedures
generally applicable to all of the Board’s adjudicatory proceedings. In the event of a conflict
between the requirements of 35 Ill. Adm. Code 101 and those of this Part, the provisions of this
Part apply.
Section 104.102
Severability
If any provision of this Part or its application to any person is adjudged invalid, thesuch adjudication does not affect
the validity of this Part as a whole or of any portion not adjudged invalid.
Section 104.104
Definitions
For the purpose of this PartSubpart, words and terms will have the meanings as defined in 35 Ill. Adm. Code
101.Subpart B unless otherwise provided, or unless the context clearly indicates otherwise.
SUBPART B: VARIANCES
Section 104.200
General
a)
Description:
1)
General Variance. A variance is a temporary exemption from any specified rule,
regulation, requirement or order of the Board, which may be granted by the Board with
or without conditions for a period of time not to exceed five years,
upon presentation of
adequate proof,
by the petitioner
that compliance with any rule, regulation, requirement or
order of the Board would impose an arbitrary or unreasonable hardship.
[415 ILCS 5/35(a)].
68
2)
Resource Conservation and Recovery Act (RCRA) Variance. A RCRA variance is an
exemption from 35 Ill. Adm. Code 703, 720, 721, 722, 723, 724 or 725 or which allows the
Illinois Environmental Protection Agency (Agency) to issue or modify any provision of a
RCRA permit required pursuant to Section 21(f) of the Act.
b)
Effect of Filing:
1)
The filing of a petition for a variance does not stay enforcement of a regulation except as
provided in subsection (b)(2) of this Section.
2)
If any person files a petition for variance from a rule or regulation within 20 days after the
effective date of such rule or regulation, the operation of such rule or regulation shall be stayed
as to such person pending the disposition of the petition; provided, however, that the operation
of any rule or regulation adopted by the Board which implements, in whole or in part, a State
RCRA,
Underground Injection Control (UIC), or National Pollutant Discharge
Elimination System (NPDES
) program shall not be stayed. The Board may hold a hearing
upon said petition 5 days from the date of notice of such hearing or thereafter
. [415 ILCS
5/38(b)]
Section 104.202
Filing Requirements
a)
Who May File. Any person seeking a variance from any rule or regulation, requirement or order of
the Board that would otherwise be applicable to that person may file a variance petition.
b)
General Filing and Service Requirements. All general filing and service requirements for Board
filings, including the form of filing and the fee requirements for filing, apply to the filing of a
petition for variance. These general requirements are found at 35 Ill. Adm. Code 101.Subpart C.
c)
Special Filing and Service Requirements. In addition to the general requirements found at 35 Ill.
Adm. Code 101.Subpart C, a person filing a petition for variance must meet the following
requirements:
1)
One copy of the petition and all related documents must be served on the Agency.
TheSuch service on the Agency must be initiated on or before the date the petition is filed
with the Board. Additionally, all RCRA variance petitions must be served on the United
States Environmental Protection Agency (USEPA) Region V Director of Waste
Management. An affidavit of service of the petition and related documents must
accompany the filing with the Board; and
2)
The petition must contain all information or documents necessary to satisfy the petition
contents requirements found in Sections 104.204, 104.206, and 104.208 of this Part.
Section 104.204
Petition Content Requirements
The petition must include the information required by subsections (a) through (n) of this Section. Additionally, there
are specific content requirements set forth at Section 104.206 of this Part for RCRA variance petitions. If the
petitioner believes that any of these requirements are not applicable to the specific variance requested, the petitioner
must so state and explain the reasoning.
a)
A statement describing the regulation, requirement, or order of the Board from which a variance is
sought. If variance from a regulation is sought, the statement must include the Illinois
Administrative Code citation to the regulation as well as the effective date of that regulation. If
variance from a requirement or order of the Board is sought, the statement must include the
69
citation to that requirement or order of the Board promulgating that requirement, including docket
number;
b)
A complete and concise description of the nature of petitioner's activity that is the subject of the
proposed variance, including:
1)
The location of, and area affected by, the petitioner's activity;
2)
The location of points of discharge, and, as applicable, the identification of the receiving
waterway or land, or, if known, the location of the nearest air monitoring station
maintained by the Agency;
3)
An identification, including docket number, of any prior variance issued to the petitioner
and, if known, the petitioner’s predecessors, concerning similar relief;
4)
An identification, including number, of the environmental permits held by petitioner for
the activity which may be affected by grant of variance;
5)
The number of persons employed by the petitioner's facility at issue and the age of that
facility;
6)
The nature and amount of the materials used in the process or activity for which the
variance is sought and a full description of the particular process or activity in which the
materials are used;
7)
A description of the relevant pollution control equipment already in use; and
8)
The nature and amount of emissions, discharges or releases of the constituent in question
currently generated by the petitioner's activity;
c)
Data describing the nature and extent of the present or anticipated failure to meet the regulation,
requirement, or order of the Board from which variance is sought and facts that support
petitioner’s argument that compliance with the regulation, requirement, or order of the Board was
not or cannot be achieved by any required compliance date;
d)
A description of the efforts that would be necessary for the petitioner to achieve immediate
compliance with the regulation, requirement, or Board order at issue. All possible compliance
alternatives, with the corresponding costs for each alternative, must be set forth and discussed. The
discussion of compliance alternatives must include the availability of alternate methods of
compliance, the extent that the methods were studied, and the comparative factors leading to the
selection of thesuch control program proposed for compliance. The discussion of the costs of
immediate compliance may include, but is not limited to, the overall capital costs and the
annualized capital and operating costs;
e)
Facts that set forth the reasons the petitioner believes that immediate compliance with the
regulation, requirement, or order of the Board would impose an arbitrary or unreasonable
hardship;
f)
A detailed description of the compliance plan, including:
1)
A discussion of the proposed equipment or proposed method of control to be undertaken
to achieve full compliance with the regulation, requirement, or order of the Board;
70
2)
A time schedule for the implementation of all phases of the control program from
initiation of design to program completion; and
3)
The estimated costs involved for each phase and the total cost to achieve compliance;
g)
A description of the environmental impact of the petitioner's activity including:
1)
The nature and amount of emissions, discharges, or releases of the constituent in question
if the requested variance is granted, compared to that which would result if immediate
compliance is required;
2)
The qualitative and quantitative description of the impact of petitioner's activity on
human health and the environment if the requested variance is granted, compared to the
impact of petitioner's activity if immediate compliance is required. Cross-media impacts,
if any, must be discussed; and
3)
A statement of the measures to be undertaken during the period of the variance to
minimize the impact of the discharge of contaminants on human, plant, and animal life in
the affected area, including the numerical interim discharge limitations that can be
achieved during the period of the variance;
h)
Citation to supporting documents or legal authorities whenever theysuch are used as a basis for
the petition. Relevant portions of thesuch documents and legal authorities other than Board
decisions, reported state and federal court decisions, or state and federal regulations and statutes
must be appended to the petition;
i)
If the requested variance involves an existing permit or a pending permit application, a copy of the
material portion of the permit or permit application must be appended to the petition;
j)
Any conditions petitioner suggests for the requested variance;
k)
A proposed beginning and ending date for the variance. If the petitioner requests that the term of
the variance begin on any date other than the date on which the Board takes final action on the
petition, a detailed explanation and justification for the alternativee beginning date;
l)
A discussion of consistency with federal law, including an analysis of applicable federal law and
facts that may be necessary to show compliance with federal law as set forth in Section 104.208 of
this Part;
m)
An affidavit verifying any facts submitted in the petition; and
n)
A statement requesting or denying that a hearing should be held in this matter.
Section 104.206
Resource Conservation and Recovery Act (RCRA) Variance Petition Contents
In addition to the requirements of Sections 104.204 and 104.208 of this Part, a petition for a RCRA variance must
meet the following requirements:
a)
All petitions for RCRA variances must include a showing that the Board can grant the requested
relief consistent with, and establish RCRA permit conditions no less stringent than, those that
would be required by RCRA, and the regulations thereunder promulgated by USEPA (40 CFR 260,
261, 262, 263, 264, 265, 266, 267, 268 and 270). Petitions must indicate whether any federal
provisions authorize the relief requested, and must include any facts necessary to show that the
petitioner would be entitled to the requested relief pursuant to federal law;
71
b)
Persons who have, or are required to have, a RCRA permit and who seek a RCRA variance that
could result in modification or issuance of the RCRA permit must have on file with the Agency a
RCRA permit application reflecting the requested variance prior to filing the variance petition;
c)
Petitioner must attach to the variance petition a copy of the RCRA permit application, or such
portion as may be relevant to the variance request; and
d)
Petitioner must attach to the variance petition proof of service on USEPA as required by Section
104.202 of this Part.
Section 104.208
Consistency with Federal Law
a)
All petitions for variances from Title II of the Act or from 35 Ill. Adm. Code.Subtitle B, Ch. I “Air
Pollution,”, must indicate whether the Board may grant the requested relief consistent with the
Clean Air Act (CAA) (42 USC 7401 et seq.) and the federal regulations adopted pursuant thereto.
If granting a variance would require revision of the State Implementation Plan, the petition must
indicate whether the requirements of Section 110(a) of the CAA (42 USC 7410(a)) and 40 CFR 51
will be satisfied.
b)
All petitions for variances from Title III of the Act, from 35 Ill. Adm. Code.Subtitle C, Ch. I “Water
Pollution,”, or from water pollution related requirements of any other Ttitle of the Act or Cchapter
of the Board's regulations, must indicate whether the Board may grant the relief consistent with
the Clean Water Act (CWA) (33 USC 1251 et seq.), USEPA effluent guidelines and standards, any
other federal regulations, or any area-wide waste treatment management plan approved by the
Administrator of USEPA pursuant to Section 208 of the CWA (33 USC 1288).
c)
All petitions for variances from Title IV of the Act or from 35 Ill. Adm. Code.Subtitle F, Ch. I
“Public Water Supplies,”, and to the extent applicable, from Title V of the Act or from 35 Ill. Adm.
Code.Subtitle D, Ch. I “Mine Related Water Pollution,”, must indicate whether the Board may
grant the relief consistent with the Safe Drinking Water Act (42 USC 300(f) et seq.), the federal
National Primary Drinking Water Regulations (40 CFR 141) and Underground Injection Control
Program and other federal regulations adopted pursuant thereto.
d)
All petitions for variances from Title V of the Act or from 35 Ill. Adm. Code.Subtitle G, Ch. I
“Waste Disposal” must indicate whether the Board may grant the requested relief consistent with
theRCRA, and the federal regulations adopted pursuant thereto.
e)
For all petitions for RCRA variances, petitioner should consult the federal RCRA rules which
contain procedures that are referred to as “Variances” (40 CFR 260, 261, 262, 263, 264, 265, 266,
267, 268 and 270) The petitioner should consult the comparable Board regulations to decide
whether the variance procedures of this Part need to be followed.
Section 104.210
Petition for Extension of Variance
a)
A variance extension pursuant to Section 36(b) of the Act
may be extended from year to year by
affirmative action of the Board, but only if satisfactory progress has been shown
by the petitioner. [415
ILCS 5/36(b)]
b)
A petition to extend a variance granted by the Board is a new petition for variance before the
Board, and must be filed in accordance with this Subpart and 35 Ill. Adm. Code 101.Subpart C,
including payment of the filing fee pursuant to Section 104.202(b) of this Part and 35 Ill. Adm.
Code 101.302(ef)(2).
72
c)
If the petitioner desires to have the term of the variance extension be sequential with the term of
the prior variance, the petition to extend the variance must be filed with the Board no later than
120 days prior to the termination of the variance, unless the petitioner can demonstrate that the
petition for variance extension was filed as soon as practicable after the petitioner learned that it
could not meet the compliance timeframe under the existing variance.
d)
In addition to the requirements of this Subpart, the petition for extension of variance must contain:
1)
A detailed statement showing that
satisfactory progress
toward compliance has been or
will have been achieved during the term of the prior variance [415 ILCS 5/36(b)];
2)
A statement that the conditions of the prior variance have been fully met, or, if any
condition or conditions have not been fully met, a detailed explanation of the reason or
reasons that the condition or conditions have not been fully met; and
3)
A motion to incorporate any material from the record of the prior variance proceeding in
accordance with 35 Ill. Adm. Code 101.306.
Section 104.212
Motion for Modification of Internal Variance Compliance Dates
a)
The petitioner may request, by written motion, modification of internal dates within a compliance
schedule of an existing variance, so long as the modification does not extend the length of the
existing variance period. TheSuch written motion will not be considered to be an extension of the
prior variance. The motion must be filed under the docket number of the existing variance, and
must be filed with the Clerk and served upon the Agency, and any joined parties pursuant to 35
Ill. Adm. Code 101.Subpart D. The Agency must, and any joined parties may, file a response to
that motion. Any response must be filed within 14 days after receipt of the motion.
b)
A motion for modification that would extend the length of the existing variance period constitutes
a Petition for Extension of Variance and must be filed in accordance with Section 104.210 of this
Part.
Section 104.214
Agency’s Notice of Petition
a)
Within 14 days after the petition is filed, the Agency must receipt of the petition the Agency shall.
publish a single notice of such petition in a newspaper of general circulation in
the county where the
facility or pollution source is located. [415 ILCS 5/37(a)].
b)
Upon receipt of a petition for variance,
the Agency shall promptly give written notice of such petition
to
:
1)
Any person in the county in which the installation or property for which variance is sought is
located who has in writing requested notice of variance petitions,
2) the State's attorney of such county
;
32)
The Chairman of the County Board of such county
; and
43)
Each member of the General Assembly from the legislative district in which that installation or
property is located
. [415 ILCS 5/37(a)]
c)
Upon receipt of a petition for RCRA variance, the Agency must promptly give notice of thesuch
petition to:
73
1)
Federal agencies as designated by USEPA;
2)
Illinois Department of Transportation;
3)
Department of Natural Resources;
4)
Illinois Department of Public Health;
5)
The Governor of any other state adjacent to the county in which the facility or pollution
source is located; and
6)
Elected officials of any counties, in other states, adjacent to the county in which the
facility or pollution source is located, and elected officials in any municipality, in another
state, if it is the closest population center to the facility or pollution source.
d)
In addition to the methods of notice stated in subsection (c) of this Section in a RCRA variance the
Agency must also give notice by broadcast over at least one local radio station in the area of the
facility or pollution source containing the information required by subsections (e) and (f) of this
Section.
e)
AllThe notices required by this Section must include the following:
1)
The street address of the facility or pollution source, and if there is no street address then
the legal description or the location with reference to any well known landmark,
highway, road, thoroughfare or intersection;
2)
A description of the requested relief;
3)
An indication that any person may request a hearing by filing with the Board a written
objection to the grant of thesuch variance within 21 days after the publication of the
Agency’s notice, together with a written request for hearing; and
4)
The Clerk of the Board’s address and phone number and a statement that a copy of the
variance may be obtained through the Clerk’s Office;.
5) A statement that the Agency is preparing a recommendation, the date on which the
recommendation is to be filed, and the name, address and telephone number of the
Agency employee responsible for the recommendation;
6) A statement that a hearing may be held after the filing of the recommendation and that
the record will remain open for written comments for 45 days after filing of the
recommendation. The notice will include the address of the Board to which the
comments must be mailed;
7) A statement that the record in the variance proceeding is available at the Board office for
inspection, except those portions that are protected from disclosure under 35 Ill. Adm.
Code 130, and that procedures are available whereby disclosure may be sought by the
public;
8) A statement that variances may be granted pursuant to Section 35 of the Act [415 ILCS
5/35] and 35 Ill. Adm. Code 104, and a reference to the Board regulations or order from
which a variance is sought; and
9) Any additional information considered necessary or proper.
74
f)
Within 21 days after the publication of the notice, tThe Agency must file with the Board a
certification of publication which states the date on which the notice was published and must
attach a copy of the published notice. within 21 days after the publication of the notice.
Section 104.216
Agency Investigation and Recommendation
a)
Upon receipt of a petition for variance,
the Agency shall promptly investigate such petition and
consider the views of persons who might be adversely affected by the grant of a variance.
[415 ILCS
5/37(a)].
b)
The Agency shall make a recommendation to the Board as to the disposition of the petition.
[415 ILCS
5/37(a).]. Unless otherwise ordered allowed by the hearing officer or the Board, the
recommendation must be filed with the Board within 45 days after the filing of the petition or
amended petition, or where there has been a hearing scheduled, at least 30 days before hearing,
whichever is earlier. The Agency must serve a copy of its recommendation by First Class mail on
the petitioner, joined parties, and assigned hearing officer, if applicable. At a minimum, the
recommendation must include:
1)
A description of the efforts made by the Agency to investigate the facts as alleged and to
ascertain the views of persons who might be affected, and a summary of the views so
ascertained;
2)
The location of the nearest air monitoring station maintained by the Agency where
applicable;
3)
A statement of the degree to which, if at all, the Agency disagrees with the facts as
alleged in the petition, including facts refuting any allegations in the petition for variance;
4)
Allegations of any other facts the Agency believes relevant to the disposition of the
petition, including any past or pending enforcement actions against petitioner;
5)
The Agency's estimate of the costs that compliance would impose on the petitioner and on
others;
6)
The Agency's estimate of the injury that the grant of the variance would impose on the
public, including the effect that continued discharge of contaminants will have upon the
environment;
7)
The Agency's analysis of applicable federal laws and regulations and an opinion
concerning the consistency of the petition with such federal laws and regulations;
8)
The status of any permits or pending permit applications that are associated with or
affected by the requested variance;
9)
Allegation of any facts that the Agency believes are relevant to whether the Board should
condition a grant of variance on the posting of a performance bond pursuant to Section
104.246 of this Part;
10)
Citation to supporting documents or legal authorities whenever theysuch are used as a
basis for the Agency's recommendation. Relevant portions of thesuch documents and
legal authorities other than Board decisions, reported state and federal court decisions,
state and federal regulations and statutes, must be appended to the recommendation if
not already in the record of the proceeding;
75
11)
The Agency's recommendation of what disposition should be made of the petition, deny
or grant, and suggested conditions. If the Agency recommends that variance be granted,
a recommended beginning and end date of the requested variance, and any
recommended conditions on the variance; and
12)
An affidavit verifying any facts outside the record referenced in the recommendation.
Section 104.218
Agency Recommendation to RCRA Variance
In addition to the recommendation requirements stated in Section 104.216 of this Part, the Agency recommendation
on petitions for RCRA variances must also include the following and, in addition to the service requirements of
Section 104.216 of this Part, the Agency must serve its recommendation on USEPA and all persons who have
notified the Agency that they intend to comment or have otherwise asked to be served a copy of the
recommendation.
a)
The recommendation must include a fact sheet or statement of basis as provided in 35 Ill. Adm.
Code 705.141 through 705.143, where relevant.
b)
If the Agency recommends that the variance be granted, a partial draft permit reflecting the
variance and recommended conditions must be included with the recommendation.
Section 104.220
Response to Agency Recommendation
a)
Within 14 days after service of the Agency recommendation the petitioner may file a response to
the Agency recommendation or an amended petition. The petitioner must serve a copy of the
response or amended petition upon the hearing officer, the Agency, and any other parties to the
proceeding.
b)
The response or amended petition may include a request for hearing. New information in a
response or amended petition must be verified by oath or affidavit.
c)
Any amended petition or request for hearing under this Section recommences the decision period
pursuant to Section 104.232 of this Subpart.
Section 104.222
Stipulations
Filing of a stipulation in a variance proceeding is permissible to the extent that the stipulation conveys to the Board
those facts upon which the parties agree. However, the Board is not bound to accept as fact any stipulation to
findings of ultimate fact or conclusion of law, such as, stipulating that it would impose an arbitrary or unreasonable
hardship if petitioner were to immediately comply with the applicable rule or regulation.
Section 104.224
Objections to Petition, Written Comments and Request for Hearing
a)
A person who files an objection, request for hearing, or acomment is a “participant” as defined in
35 Ill. Adm. Code 101.Subpart B.
b)
Except as provided in subsection (e) of this Section for RCRA variances, any person may file with
the Clerk, within 21 days after the publication of the Agency’s notice pursuant to Section 104.214
of this Part, a written objection to the grant of variance. The Clerk will mail a copy of the objection
to the petitioner, the Agency, the hearing officer, and any joined parties by First Class mail.
c)
Any person may also file a written request for hearing. The written request must be filed within 21
days after the publication of the Agency’s notice pursuant to Section 104.214 of this Part in order
76
for a hearing to be held in accordance with Section 104.236 of this Part and 35 Ill. Adm. Code
101.Subpart F.
d)
Any person may file written comments in a variance proceeding. If a hearing is held, public
comments must be filed within 14 days after the close of the hearing unless the hearing officer
specifies a different date. If there is no hearing, comments must be filed no later than 30 days
before the decision date, unless the hearing officer orders otherwise to prevent material prejudice.
(See 35 Ill. Adm. Code 101.628(c)(1).)
e)
In RCRA variances, subsections (b) and (c) of this Section do not apply. However, persons may file
written comments within 45 days after the Agency files its recommendation.
Section 104.226
Amended Petition and Amended Recommendation
a)
The petitioner may amend the petition prior to the close of the hearing, if a hearing is held, or prior
to the Board's decision, if a hearing is not held, by filing a motion pursuant to 35 Ill. Adm. Code
101.Subpart E. Amended petitions subsequent to hearing will be accepted only with leave of the
Board. Amended petitions must be in writing and filed with the Board and served in accordance
with 35 Ill. Adm. Code 101.Subpart C. If the petitioner substantively amends the petition, the that
the amendment is a substantive change, tThe filing of an amended petition recommences the
decision period, pursuant to Section 104.232 of this Part., and requires additional notice pursuant
to Section 104.214 of this Part.
b)
If the petitioner amends the petition, the Agency must file or give an amended recommendation in
writing or orally at hearing, but in any event not later than 4530 days after the filing of an
amended petition. The Agency may amend its recommendation even if the petitioner has not
amended its petition. In such an instance, a recommendation may be amended prior to close of the
hearing, if a hearing is held, or 40 days prior to the Board's decision date if a hearing is not held.
The petitioner may file a response to an Agency recommendation pursuant to Section 104.220 of
this Part.
c)
Written amendments to the petition or recommendation need not repeat the entire unchanged
portion of the original filing provided that a sufficient portion of the original filing is repeated so
that the context of the amendment is made clear.
Section 104.228
Insufficient Petition
If the Board finds the petition fails to contain information as required by Sections 104.204, 104.206, and 104.208 of
this Part, the Board may order the petitioner to supplement the information contained in the petition. Filings made
in response to thesuch order constitute an amended petition for the purposes of calculating the decision deadline
pursuant to Section 104.232 of this Part. Alternatively, pursuant to Section 104.230 of this Part, the Board may
dismiss the petition for lack of sufficient information. Failure of the Board to require supplemental information does
not preclude a later finding that the information provided is insufficient to support grant of variance, or constitute a
Board decision on the merits of the petition.
Section 104.230
Dismissal of Petition
A petition is subject to dismissal if the Board determines that:
a)
The petition requests relief that the Board is not empowered to grant;
b)
The petition fails to comply with the requirements of 35 Ill. Adm. Code 101.Subpart C and Sections
104.202, 104.204, 104.206 and 104.208 of this Part;
77
c)
The petitioner fails to timely comply with any order issued by the Board or the hearing officer,
including an order requiring additional information pursuant to Section 104.228 of this Part; or
d)
The petitioner is not subject to the rule or regulation, requirement, or order of the Board at issue.
Section 104.232
Calculation of Decision Deadline
a)
Pursuant to Section 38(a) of the Act the Board will render its final decision on the petition within
120 days after the date of filing of the petition, except:
1)
When the petitioner waives its right to a decision within the prescribed decision period in
accordance with 35 Ill. Adm. Code 101.Subpart C;
2)
When the petitioner files an amended petition for variance pursuant to this Subpart or
files a request for hearing after filing the original petition, the decision period
recommences from the date of filing of the amended petition or the request for hearing; or
3)
When a hearing is canceled pursuant to 35 Ill. Adm. Code 101.510.
b)
Time will be computed in accordance with 35 Ill. Adm. Code 101.Subpart C.
Section 104.234
Hearing
The Board will order a hearing on a variance petition if:
a)
A hearing is requested by the petitioner at the time of initial filing on the associated form or in
writing, which is filed and served in accordance with 35 Ill. Adm. Code 101.Subpart C;
b)
A hearing is requested in a response or amended petition;
c)
The Board, in its discretion, concludes that a hearing would be advisable
[415 ILCS 5/37(a)];
d)
The Agency or any other person files a written objection to the grant of such variance within 21 days
after the publication of the Agency’s notice pursuant to Section 104.214 of this Part,
together with a
written request for hearing;
[415 ILCS 5/37(a)];
e) The variance request, if granted, would require an amendment to the State Implementation Plan for a
criteria pollutant under the CAA; or
ef)
The request concerns a RCRA variance.
Section 104.236
Hearing Procedures
Hearings will be conducted pursuant to 35 Ill. Adm. Code 101.Subpart F, except that:
a)
All hearings are to be held in the county where the petitioner’s facility or pollution source is located
unless otherwise ordered by the hearing officer (see 35 Ill. Adm. Code 101.600);
b)
Hearings may be canceled pursuant to a motion filed in accordance with 35 Ill. Adm. Code
101.510 at the discretion of the hearing officer; and
c)
If all parties and participants who have requested a hearing pursuant to this Subpart have
withdrawn their requests for a hearing, the hearing will not be held unless the Board in its
discretion deems it advisable.
78
d)
The hearing officer shall give notice of RCRA hearings to the following persons:
1)
Any person in the county in which the installation or property for which variance is
sought is located who has in writing requested notice of variance petitions, and the State's
attorney of thesuch county;
2)
The Chairman of the county board of thesuch county;
3)
Each member of the General Assembly from the legislative district in which that
installation or property is located;
4)
Federal agencies as designated by USEPA;
5)
Illinois Department of Transportation;
6)
Department of Natural Resources;
7)
Illinois Department of Public Health;
8)
The Governor of any other state adjacent to the county in which the facility or pollution
source is located;
9)
Elected officials of any counties, in other states, adjacent to the county in which the
facility or pollution source is located, and elected officials in any municipality, in another
state, if it is the closest population center to the facility or pollution source; and
10)
USEPA’s Region V Director of Waste, Pesticides and Toxics Division.
Section 104.238
Standard of Review
a)
The Board may grant individual variances beyond the limitations prescribed by the Act, whenever it is
found, upon presentation of adequate proof, that compliance with any rule or regulation, requirement or
order of the Board would impose an arbitrary or unreasonable hardship
. [415 ILCS 5/35(a)] The
burden of proof in a variance proceeding is on the petitioner.
b)
In addition to subsection (a) of this Section the Board may grant a RCRA variance only to the
extent consistent with, and with conditions no less stringent than, those that would be required by
RCRA and 40 CFR 260, 261, 262, 263, 264, 265, 266, 267, 268, and 270. Variances must require
compliance with the regulations in the shortest practicable time.
Section 104.240
Certificate of Acceptance
The Board’s order granting a variance will include a certificate of acceptance. The petitioner’s filing with the Board,
which must be served on the Agency, will include a certificate of acceptance in all variances. The certificate
constitutes acceptance of the variance and its conditions by the petitioner. A variance and its conditions are not
binding upon the petitioner until the executed certificate is filed with the Board and served onthe Agency. Failure to
timely file the executed certificate with the Board and serve on the Agency renders the variance void. However,
execution of the certificate is not necessary prior to seeking reconsideration pursuant to 35 Ill. Adm. Code
101.Subpart IJ, or appeal pursuant to Section 104.244 of this Part.
Section 104.242
Term of Variance
79
Except as provided
by Section 38(a) of the Act
,
any variance granted pursuant to the provisions of this Ppart shall be for
such period of time, not exceeding five years, as shall be specified by the Board at the time of the grant of such variance, and
upon the condition that the person who receives such variance shall make such periodic progress reports as the Board shall
specify. Such variance may be extended from year to year by affirmative action of the Board, but only if satisfactory
progress is shown
. [415 ILCS 5/36(b)]
Section 104.244
Variance Conditions
In granting a variance the Board may impose such conditions as the policies of the Act may require.
[415 ILCS 5/36(a)].
In a RCRA variance the Board may direct the Agency to issue or modify a RCRA permit with conditions that may be
set forth specifically in the order, or that may consist of general guidelines to be followed by the Agency, together
with applicable regulations, in issuing a permit.
Section 104.246
Performance Bonds
If the hardship complained of consists solely of the need for a reasonable delay in which to correct a violation of theis Act or
of the Board regulations, the Board shall condition the grant of such variance upon the posting of sufficient performance
bond or other security to assure the completion of the work covered by the variance. The original amount of such
performance bond shall not exceed the reasonable cost of the work to be completed pursuant to the variance. The obligation
under such bond shall at no time exceed the reasonable cost of work remaining pursuant to the variance
. [415 ILCS
5/36(a)]
Section 104.248
Objection to Conditions
Notwithstanding this subsection, Tthe Board may include such conditions in granting a variance and may adopt such
rules and regulations as the policies of theis Act may require. If an objection is made to a variance condition, the Board
shall reconsider the condition within not more than 75 days from the date of the objection
. [415 ILCS 5/41(b)] An
objection to a specific variance condition may be made by filing a motion pursuant to 35 Ill. Adm. Code 101.Subpart
E, within 35 days after the receipt of the Board’s opinion and order containing the objectionable condition.
Section 104.250 Revocation
The Board has the authority to, upon its own motion or upon a motion filed pursuant to 35 Ill. Adm. Code
101.Subpart E by petitioner, Agency or any person , revoke or vacate any variance or any condition of any variance.
The Board will vacate or revoke a variance or any condition in a variance for reasons including non-compliance with
the variance or any conditions of the variance. Upon petitioner’s or the Agency’s request, or upon its own motion,
the Board will hold a hearing pursuant to 35 Ill. Adm. Code 101.Subpart F if necessary to determine whether the
variance or any condition of a variance should be revoked or vacated.
SUBPART C: PROVISIONAL VARIANCES
Section 104.300
Applicability
This Subpart applies to any person seeking a provisional variance pursuant to Title IX of the Act. This Subpart must
be read in conjunction with 35 Ill. Adm. Code 101 and this Part. In the event of conflict between this Subpart and
the requirements of 35 Ill. Adm. Code 101, the requirements of this Subpart apply.
Section 104.302
Board Action
The Board shall grant provisional variances only upon notification from the Agency that compliance on a short term basis
with any rule or regulation, requirement or order of the Board, or with any permit requirement would impose an arbitrary
or unreasonable hardship. Such provisional variances shall be issued within 2 working days of notification from the
Agency
. [415 ILCS 5/35(b)]
80
Section 104.304
Initiating a Request
Any person seeking a provisional variance pursuant to
Section 104.401 of this Part
shall make a request to the Agency.
The Agency shall promptly investigate and consider the merits of the request. The Agency may notify the Board of its
recommendation. If the Agency fails to take final action within 30 days after receipt of the request,
or if the Agency denies
the request,
the person may initiate
a
variance proceeding pursuant to Subpart BSsection 104.120 of this Part. [415
ILCS 5/37(b)]
Section 104.306
Notice
The Board shall give prompt notice of its action on provisional variance requests to the public by issuing a press release for
distribution to newspapers of general circulation in the county
. [415 ILCS 5/37(b)]
Section 104.308
Term
Any provisional variance granted by the Board pursuant to subsection (b) of Section 35 shall be for a period of time not to
exceed 45 days. Upon receipt of a recommendation from the Agency to extend this time period, the Board shall grant up to
an additional 45 days. The provisional variances granted to any one person shall not exceed a total of 90 days during any
calendar year
. [415 ILCS 5/36(c)]
Section 104.310
Simultaneous Variance Prohibition
The Board will not grant a provisional variance pursuant to this Subpartto the extent that the petitioner already
holds a variance pursuant to Subpart B of this Partfrom the same regulation or Board order of the Board for the same
time period.
SUBPART D: ADJUSTED STANDARDS
Section 104.400
General
a)
Description. An adjusted standard has the effect of an environmental regulation that would apply
to petitioner, if granted, in lieu of the general regulation that would otherwise be applicable to a
petitioner and the regulated community.
b)
Applicability. This Subpart will apply to any person seeking an adjusted standard pursuant to
Section 28.1 of the Act. This includes an adjusted standard sought pursuant to 35 Ill. Adm. Code
212.126 (CAA) and 35 Ill. Adm. Code 700 through 750 (RCRA). This Subpart must be read in
conjunction with 35 Ill. Adm. Code Part 101 which contains procedures generally applicable to all
adjudicatory proceedings before the Board. In the event of a conflict between the requirements of
35 Ill. Adm. Code 101 and those of this Subpart, the provisions of this Subpart apply.
Section 104.402
Initiation of Proceeding
A person may initiate an adjusted standard proceeding by filing a petition that meets the requirements of Section
104.406 of this Part. A petition for an adjusted standard (petition) may be filed either jointly with the Agency or
singly pursuant to the filing requirements of 35 Ill. Adm. Code 101. If filed singly the petitioner shall also serve the
petition upon the Agency in accordance with 35 Ill. Adm. Code 101. Additionally, a person may file a petition and
request the Agency to join as a co-petitioner as set forth in Section 104.404 of this Part.
Section 104.404
Request to Agency to Join as Co-Petitioner
a)
The Agency may, in its discretion, act as a co-petitioner in any adjusted standard proceeding.
81
b)
Any person may request Agency assistance in initiating a petition for adjusted standard. The
Agency may require the person to submit to the Agency any background information in the
person's possession relevant to the adjusted standard which is sought. The Agency shall promptly
notify the person in writing of its determination either to join as a co-petitioner, or to decline to join
as a co-petitioner. If the Agency declines to join as a co-petitioner, the Agency must state the basis
for this decision.
c)
Discretionary decisions made by the Agency pursuant to this Section are not appealable to the
Board.
d)
Subsequent to the filing of the petition and prior to hearing, the Board will grant the Agency co-
petitioner status upon joint motion of the Agency and the petitioner who originally filed the
petition.
Section 104.406
Petition Content Requirements
If the Agency is a co-petitioner, the petition must so state. The petition must contain headings corresponding to the
informational requirements of each subsection of this Section. If the petitioner believes that any of the informational
requirements are not applicable to the specific adjusted standard requested, the petitioner must so state and explain
his reasoning. The following information must be contained in the petition:
a)
A statement describing the standard from which an adjusted standard is sought. This must
include the Illinois Administrative Code citation to the regulation of general applicability imposing
the standard as well as the effective date of that regulation;
b)
A statement that indicates whether the regulation of general applicability was promulgated to
implement, in whole or in part, the requirements of the CWA (33 USC 1251 et seq.), Safe Drinking
Water Act (42 U.S.C. 300(f) et seq.), Comprehensive Environmental Response, Compensation and
Liability Act (42 USC 9601 et seq.), CAA (42 USC 7401 et seq.), or the State programs concerning
RCRA, UIC, or NPDES [415 ILCS 5/28.1];
c)
The level of justification as well as other information or requirements necessary for an adjusted
standard as specified by the regulation of general applicability or a statement that the regulation of
general applicability does not specify a level of justification or other requirements [415 ILCS
5/28.1] (See Section 104.426);
d)
A description of the nature of the petitioner's activity that is the subject of the proposed adjusted
standard. The description must include the location of, and area affected by, the petitioner's
activity. This description must also include the number of persons employed by the petitioner's
facility at issue, age of that facility, relevant pollution control equipment already in use, and the
qualitative and quantitative description of the nature of emissions, discharges or releases currently
generated by the petitioner's activity;
e)
A description of the efforts that would be necessary if the petitioner waswere to comply with the
regulation of general applicability. All compliance alternatives, with the corresponding costs for
each alternative, must be discussed. The discussion of costs must include the overall capital costs
as well as the annualized capital and operating costs;
f)
A narrative description of the proposed adjusted standard as well as proposed language for a
Board order that would impose the standard. Efforts necessary to achieve this proposed standard
and the corresponding costs must also be presented;
82
g)
The quantitative and qualitative description of the impact of the petitioner's activity on the
environment if the petitioner were to comply with the regulation of general applicability as
compared to the quantitative and qualitative impact on the environment if the petitioner were to
comply only with the proposed adjusted standard. To the extent applicable, cross-media impacts
must be discussed. Also, the petitioner must compare the qualitative and quantitative nature of
emissions, discharges or releases that would be expected from compliance with the regulation of
general applicability as opposed to that which would be expected from compliance with the
proposed adjusted standard;
h)
A statement which explains how the petitioner seeks to justify, pursuant to the applicable level of
justification, the proposed adjusted standard;
i)
A statement with supporting reasons that the Board may grant the proposed adjusted standard
consistent with federal law. The petitioner must also inform the Board of all procedural
requirements applicable to the Board's decision on the petition that are imposed by federal law and
not required by this Subpart. Relevant regulatory and statutory authorities must be cited;
j)
A statement requesting or waiving a hearing on the petition (pursuant to Section 104.422(a)(4) of
this Part a hearing will be held onin all petitions for adjusted standards filed pursuant to 35 Ill.
Adm. Code 212.126 (CAA));
k)
The petition must cite to supporting documents or legal authorities whenever theysuch are used as
a basis for the petitioner's proof. Relevant portions of thesuch documents and legal authorities
other than Board decisions, State regulations, statutes, and reported cases must be appended to the
petition;
l)
Any additional information which may be required in the regulation of general applicability.
Section 104.408
Petition Notice Requirements
a)
The petitioner shall submit to the Board proof that, within 14 days after the filing of the petition, it has
published notice of the filing of the petition by advertisement in a newspaper of general circulation in the
area likely to be affected
by the petitioner's activity that is the subject of the adjusted standard
proceeding. [415 ILCS 5/28.1.].
b)
The title of the notice must be in the form as follows: “Notice of Petition by [petitioner's name] for
an Adjusted Standard before the Illinois Pollution Control Board.” The notice must contain the
name and address of the petitioner and the statement that the petitioner has filed with the Board a
petition for an adjusted standard. The notice must also provide the date upon which the petition
was filed, the Board docket number, the regulatory standard (with appropriate Administrative
Code citation) from which an adjusted standard is sought, the proposed adjusted standard, and a
general description of the petitioner's activity that is the subject of the adjusted standard
proceeding, and the location of that activity. This information must be presented so as to be
understood in accordance with the context of this Section's requirements. The concluding portion
of the notice must read as follows:
“Any person may cause a public hearing to be held in the above-described adjusted standard
proceeding by filing a hearing request with the Illinois Pollution Control Board within 21 days after
the date of the publication of this notice. The hearing request should clearly indicate the docket
number for the adjusted standard proceeding, as found in this notice, and must be mailed to the
Clerk of the Board, Illinois Pollution Control Board, 100 W. Randolph Street, Suite 11-500,
Chicago, Illinois 60601.”
Section 104.410
Proof of Petition Notice Requirements
83
Within 30 days after the filing of the petition, the petitioner must file a certificate of publication, issued by the
publisher of the petition notice certifying the publication of that notice. The certificate must be issued in accordance
with Section 1 of the “Notice by Publication Act” [715 ILCS 5/1].
Section 104.412
Effect of Filing a Petition: Stay
a)
If any person files a petition for an individual adjusted standard in lieu of complying with the applicable
regulation within 20 days after the effective date of the regulation, the operation of the regulation shall be
stayed as to such person pending the disposition of the petition; provided, however, that the operation of
any regulation shall not be stayed if that regulation was adopted by the Board to implement, in whole or
in part, the requirements of the federal Clean Air Act, Safe Drinking Water Act or Comprehensive
Environmental Response, Compensation, and Liability Act, or the Sstate RCRA, UIC or NPDES
programs
. [415 ILCS 5/28.1(e)]
b)
Within 20 days after the effective date of any regulation that implements in whole or in part the
requirements of the Clean Air Act, if any person files a petition for an individual adjusted standard in
lieu of complying with the regulation, such source will be exempt from the regulation until the Board
makes a final determination on the petition. If the regulation adopted by the Board from which the
individual adjusted standard is sought replaces a previously adopted Board regulation, the source shall
be subject to the previously adopted Board regulation until final action is taken by the Board on the
petition
. [415 ILCS 5/28.1(f)]
Section 104.414
Dismissal of Petition
The Board may at any time dismiss a petition for any of the following reasons:
a)
The Board determines that the petition is frivolous, duplicative, or deficient with respect to the
requirements of Sections 104.406, 104.408, and 104.410 of this Part; or
b)
The Board determines that the petitioner is not pursuing disposition of the petition in a timely
manner.
Section 104.416
Agency Recommendation and Petitioner Response
a)
Unless otherwise ordered by the hearing officer or the Board, the recommendation must be filed
with the Board within 45 days after the filing of the petition or amended petition, or where a . If a
hearing has been scheduled, the recommendation must be filed at least 30 days before hearing,
whichever is earlier. The recommendation must set forth the rationale for the Agency’s position
and may present any information which the Agency believes is relevant to the Board's
consideration of the proposed adjusted standard. If the Agency recommends a denial of the
petition due to informational deficiencies within the petition, the recommendation must identify
the types of information needed to correct the deficiencies.
b)
At a minimum, the Agency must address and respond to the petition with respect to each issue
raised by the requirements of subsections (a) through (j) of Section 104.406 of this Part.
c)
The recommendation must cite to supporting documents or legal authorities whenever such are
used as a basis for the Agency's conclusion. Relevant portions of thesuch documents and legal
authorities other than Board decisions, State regulations, statutes and reported cases must be
appended to the recommendation if not already in the record of the proceeding.
d)
The petitioner may file a response to the recommendation within 14 days after the date of service
of the recommendation.
84
Section 104.418
Amended Petition, Amended Recommendation, and Amended Response
a)
Amended Petition. The petitioner may amend its petition at any time. TheSuch an amendment
must be in writing and filed with the Board unless made orally at hearing. If the petitioner amends
the petition such that the amendment is a substantive change to the requested relief in that it
requests additional or alternative relief, petitioner must re-notice the amended petition pursuant to
Section 104.408 of this Part.
b)
Amended Recommendation. The Agency may amend its recommendation at any time, even if the
petitioner has not amended its petition, if thesuch amendment does not cause material prejudice.
TheSuch an amendment must be in writing and filed with the Board unless made orally at hearing.
c)
Amended Response. The petitioner may file a reply to a written amended recommendation within
14 days after the date of receipt of the amended recommendation or within 14 days after the
hearing when the Agency orally amended its recommendation.
d)
Written amendments to the petition or recommendations need not repeat the entire unchanged
portion of the original filing provided that a sufficient portion of the original filing is repeated so
that the context of the amendment is made clear.
Section 104.420
Request for Public Hearing
a)
Any person can request that a public hearing be held in an adjusted standard proceeding.
TheSuch requests must be filed not later than 21 days after the date of the publication of the
petition notice in accordance with subsections (a) and (b) ofSection 104.408 of this Part. Requests
for hearing should make reference to the Board docket number assigned to the proceeding. A
copy of each timely hearing request will be mailed to the petitioner and Agency by the Clerk of
the Board. Participation by the public at thesuch hearing must be in accordance with 35 Ill. Adm.
Code 101.110 and 101.628.
b)
Where all parties and participants who have requested a hearing pursuant to this Subpart have
withdrawn their requests for a hearing, the hearing will not be held unless the Board in its
discretion deems it advisable.
Section 104.422
Public Hearing
a)
A public hearing will be held and the Board will assign a hearing officer to an adjusted standard
proceeding when:
1)
The petitioner requests a hearing be held; or
2)
The Board receives a hearing request by any person pursuant to Section 104.420 of this
Part, not later than 21 days after the date of the publication of the petition notice in
accordance with Section 104.408 of this Part; or
3)
The Board
in its discretion determines that a hearing would be advisable.
[415 ILCS 5/28.1];
or
4)
The adjusted standard is sought pursuant to 35 Ill. Adm. Code 212.126 (CAA).
b)
The hearing officer will set a time and place for the hearing. The hearing officer will make an
attempt to consult with the petitioner and the Agency prior to the scheduling of a hearing.
85
Hearings are to be held in the county
likely to be affected by the petitioner's activity that is the
subject of the proposed adjusted standard.
Section 104.424
Hearing Notice
After receiving notification from the hearing officer of the scheduled hearing date made pursuant to Section 104.422
of this Part, the Clerk will cause the publication of a hearing in accordance with Section 28.1 of the Act [415 ILCS
5/28.1] and 35 Ill. Adm. Code 101. [415 ILCS 5/28.1]
Section 104.426
Burden of Proof
The burden of proof in an adjusted standard proceeding is on the petitioner. A petitioner must justify an adjusted
standard consistent with subsection (a) of Section 27(a) of the Act.
a)
If the regulation of general applicability does not specify a level of justification required of a petitioner to
qualify for an adjusted standard, the Board may grant individual adjusted standards whenever the
Board determines, upon adequate proof by petitioner, that:
1)
factors relating to that petitioner are substantially and significantly different from the factors
relied upon by the Board in adopting the general regulation applicable to that petitioner
;
2)
the existence of those factors justifies an adjusted standard
;
3)
the requested standard will not result in environmental or health effects substantially and
significantly more adverse than the effects considered by the Board in adopting the rule of
general applicability; and
4)
the adjusted standard is consistent with any applicable federal law.
[415 ILCS 5/28.1(c)].
b)
If the regulation of general applicability specifies a level of justification for an adjusted standard,
the Board may adopt the proposed adjusted standard, if the petitioner proves the level of
justification specified by the regulation of general applicability.
Section 104.428
Board Action
a)
In adopting adjusted standards the Board may impose such conditions as may be necessary to
accomplish the purposes of the Act.
b)
Subsequent to the Board's adoption of an adjusted standard, the Board will publish, in the
Environmental Register, the name of the petitioner, date of the Order that adopted the adjusted
standard, and a brief narrative description of the adopted adjusted standard.
c)
Board orders and opinions shall be maintained for public inspection by the Clerk of the Board and a
listing of all determinations made pursuant to
Section 28.1 of the Act
shall be published in the Illinois
Register and the Environmental Register at the end of each fiscal year.
[415 ILCS 5/28.1(d)]
Board
opinions and orders will also be available from the Board’s Web site.
Appendix A Comparison of Former and Current Rules
The following appendix compares the former procedural rules (in effect on December 31, 2000) with the current
procedural rules (effective January 1, 2001).
86
FORMER PART 104
CURRENT SECTION
104.102
104.200
104.104
104.206
104.120
104.202
104.121
104.204
104.122
104.208
104.123
104.210
104.124
104.234
104.236
104.125
104.228
104.230
104.126
104.206
104.140
104.214
104.141
104.224
104.142
104.214
104.160
104.228
104.234
104.236
104.232
104.230
104.180
104.216
104.181
104.220
104.182
104.218
104.183
104.224
104.200
104.236
104.201
104.238
101.Subpart F
104.221
104.238
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE A: GENERAL PROVISIONS
CHAPTER I: POLLUTION CONTROL BOARD
PART 105
APPEALS OF FINAL DECISIONS OF STATE AGENCIES
SUBPART A: GENERAL PROVISIONS
Section
105.100
Applicability
105.102
Severability
105.104
Definitions
105.106
Computation of Time, Filing and Service Requirements
105.108
Dismissal of Petition
105.110
Hearing Process
105.112
Burden of Proof
105.114
Calculation of Decision Deadline
105.116
Record Filing
105.118
Sanctions for Untimely Filing of the Record
SUBPART B: APPEAL OF AGENCY PERMIT DECISIONS AND OTHER FINAL DECISIONS OF THE AGENCY
87
Section
105.200
Applicability
105.202
Parties
105.204
Who May File a Petition for Review
105.206
Time to File the Petition orn Request for Extension
105.208
Extension of Time to File a Petition for Review
105.210
Petition Content Requirements
105.212
Agency Record and Notification
105.214
Board Hearing
SUBPART C: CAAPP PERMIT APPEALS
105.300
Applicability
105.302
General Requirements
105.304
Petition Content Requirements
SUBPART D: APPEAL OF AGENCY LEAKING UNDERGROUND
STORAGE TANK (LUST) DECISIONS
Section
105.400
Parties
105.402
Who May File a Petition for Review
105.404
Time for Filing the Petition
105.406
Extension of Time to File a Petition for Review
105.408
Petition Content Requirements
105.410
Agency Record
105.412
Board Hearing
SUBPART E: APPEAL OF OSFM LUST DECISIONS
Section
105.500
Applicability
105.502
General Overview
105.504
General Requirements
105.506
Petition Content Requirements
105.508
OSFM Record and Appearance
105.510
Location of Hearing
SUBPART F: APPEALS OF OTHER FINAL DECISIONS OF STATE AGENCIES
Section
105.600 Applicability
105.602 Parties
105.604 Burden of Proof
105.606 Who May File a Petition for Review
105.608 Time to File the Petition; Service
105.610 Petition Content Requirements
105.612 State Agency Record
105.614 Board Hearing
Illustration A: Agency LUST Final Decisions that are Reviewable
APPENDIX A Comparison of Former and Current Rules
88
AUTHORITY: Authorized by Sections 26 and 27 of the Environmental Protection Act (Act) [415 ILCS 5/26 and 27]
and implementing Sections 5, 39, 39.5, 40, 40.1, 40.2, and 57 of the Act [415 ILCS 5/5, 39, 39.5, 40, 40.1, 40.2 and
57].
SOURCE: Filed with Secretary of State January 1, 1978; amended 4 Ill. Reg. 52, page 41, effective December 11,
1980; codified 6 Ill. Reg. 8357; amended in R93-24 at 18 Ill. Reg. 4244, effective March 8, 1994; amended in R94-11 at
18 Ill. Reg. 16594, effective November 1, 1994;. oOld Part repealed, new Part adopted in R00-20 at 24 Ill. Reg. __,
effective____.
SUBPART A: GENERAL PROVISIONS
Section 105.100
Applicability
a)
This Part applies to appeals of final decisions of the Agency and the OSFM to the Board as
described in this Part. State agencies to the Board as authorized by law.
b)
This Part must be read in conjunction with 35 Ill. Adm. Code 101, which contains procedures
generally applicable to all of the Board’s adjudicatory proceedings. In the event of a conflict
between the requirements of 35 Ill. Adm. Code 101 and those of this Part, the provisions of this
Part apply.
Section 105.102
Severability
If any provision of this Part or its application to any person is adjudged invalid, thesuch adjudication does not affect
the validity of this Part as a whole or of any portion not adjudged invalid.
Section 105.104
Definitions
For the purpose of this Part, words and terms will have the meanings as defined in 35 Ill. Adm. Code 101.Subpart B
unless otherwise provided, or unless the context clearly indicates otherwise.
Section 105.106
Computation of Time, Filing and Service Requirements
Unless applicable law orthis Part provides otherwise, service, filing, and computation of time must be in accordance
with 35 Ill. Adm. Code 101.Subpart C.
Section 105.108
Dismissal of Petition
A petition is subject to dismissal if the Board determines that:
a)
The petition does not contain the informational requirements set forth in Section 105.210,
105.3048, 105.408, or 105.506 or 105.610of this Part;
b)
The petition is untimely pursuant to Section 105.206, 105.3024, 105.404, or 105.504 or 105.608of
this Part;
c)
The petitioner fails to timely comply with any order issued by the Board or the hearing officer,
including an order requiring additional information; or
d)
The petitioner does not have standing under applicable law to petition the Board for review of the
State agency’s final decision.; or
e) Other grounds exist that bar the petitioner from proceeding.
89
Section 105.110
Hearing Process
Unless applicable law orthis Part provides otherwise, proceedings held pursuant to this Part will be in accordance
with the rules set forth in 35 Ill. Adm. Code 101.Subpart F.
Section 105.112
Burden of Proof
Unless applicable law orthis Part provides otherwise:
a)
The burden of proof shall be on the petitioner
except as provided in subsection (b) of this Section. [415
ILCS 5/40(a)(1), 40(b) and (e)(3) and 40.2(a)]
b)
The burden of proof is on the Agency if
the Agency issues an NPDES permit that imposes limits
which are based upon a criterion or denies a permit based upon application of a criterion, then the
Agency shall have the burden of going forward with the basis for the derivation of those limits or
criterion which were derived under the Board’s rules
. [415 ILCS 5/40(a)(1)]
Section 105.114
Calculation of Decision Deadline
The Board will render its final decision on the petition within any applicable decision period (which commences
when the petition is filed in accordance with 35 Ill. Adm. Code 101.300(b)(4)), except:
a)
When the petitioner waives its right to a decision within the prescribed decision period in
accordance with 35 Ill. Adm. Code 101.Subpart C; or
b)
When the petitioner files an amended petition, in which casethe decision period recommences
when the amended petition is filed in accordance with 35 Ill. Adm. Code 101.300(b)(4).
Section 105.116
Record Filing
Unless applicable law or this Part provides otherwise, Tthe State agency must file the entire record of its decision
with the Clerk as within 30 days after the filing of the petition for review, unless this Part provides otherwise or the
Board or hearing officer orders a different filing date. directs, and in accordance with any applicable decision
deadline, but in no event later than If the State agency wishes to seek additional time to file the record, it must file a
request for extension before the date on which the record is due to be filed.
Section 105.118
Sanctions for Untimely Filing of the Record
If the State agency unreasonably fails to timely file the record on or before the date required under this Part, the
Board may sanction the State agency in accordance with 35 Ill. Adm. Code 101.Subpart H.
SUBPART B: APPEAL OF AGENCY PERMIT DECISIONS AND OTHER FINAL DECISIONS OF THE AGENCY
Section 105.200
Applicability
This Subpart applies to any appeal to the Board of the Agency’s final permit decisions and other final decisions of the
Agency, except:
a)
When the appeal is of a final CAAPP decision of the Agency, which is addressed in Subpart C of
this Part; and
b)
When the appeal is of a final leaking underground storage tank decision of the Agency, which is
addressed in Subpart D of this Part.
90
Section 105.202
Parties
a)
Petitioner. The person who files a petition for review of the Agency’s final decision must be named
the petitioner.
b)
Respondent(s). The Agency must be named the respondent. If a petition is filed pursuant to
Section 105.204(b), (c) or (d) by a person other than the permit applicant, the permit applicant
must be named as a respondent in addition to the Agency.
Section 105.204
Who May File a Petition for Review
a)
General.
If the Agency refuses to grant or grants with conditions a permit under Section 39 of the Act,
the applicant may. . . petition for a hearing before the Board to contest the decision of the Agency
. [415
ILCS 5/40(a)(1)]
b)
National Pollutant Discharge Elimination System (NPDES) Ppermit.
If the Agency grants or denies
a permit under subsection (b) of Section 39 of the Act, a third party, other than the permit applicant or
Agency, may petition the Board… for a hearing to contest the decision of the Agency.
[415 ILCS
5/40(e)(1)]
c)
Resource Conservation and Recovery Act (RCRA) Permit for a Hazardous Waste Disposal Site.
If
the Agency grants a RCRA permit for a hazardous waste disposal site, a third party, other than the
permit applicant or Agency, may petition the Board…for a hearing to contest the issuance
of the permit.
This subsection does not apply to the
granting of permits issued for the disposal or utilization of sludge
from publicly-owned sewage works.
[415 ILCS 5/40(b)]
d)
Hazardous Waste Permit.
Any party to an Agency proceeding conducted pursuant to Section 39.3 of
theis Act may petition as of right to the Board for review of the Agency’s decision.
[415 ILCS 5/40(c)]
e)
EMSAs. If the Agency terminates an EMSA under Section 52.3-4(b) of the Act, the sponsor may
petition the Board for review of the Agency’s final decision.
f)
Other Agency Final Decisions. If the Agency’s final decision is to deny or to conditionally grant or
approve, the person who applied for or otherwise requested the Agency decision, or the person to
whom the Agency directs its final decision, may petition the Board for review of the Agency’s final
decision. In addition, any third party authorized by law to appeal a final decision of the Agency to
the Board may file a petition for review with the Clerk.
Section 105.206
Time to File the Petition or Request fFor Extension
a)
Except as provided in subsection (b) of this Section, if a person who may petition the Board under
Section 105.204 of this Subpart wishes to appeal the Agency’s final decision to the Board under
this Subpart, the person must file the petition with the Clerk within 35 days after the date of
service of the Agency’s final decision.
b)
If a person with standing as described in Section 105.204(d) of this Subpart, or any third party
who is authorized by law to appeal a final decision of the Agency to the Board, wishes to appeal
the Agency’s final decision to the Board under this Subpart, the person must file a petition for
review with the Clerk within 35 days after the date of issuance of the Agency’s final decision.
c)
Except as provided in subsection (d) of this Section, if a person who may petition the Board under
Section 105.204 of this Subpart wishes to request an extension of time to file a petition for review
91
pursuant to Section 105.208(a) of this Subpart, the person must file the request within 35 days after
the date of service of the Agency’s final decision.
d)
If a person with standing as described in Section 105.204(d), or any third party who is authorized
by law to appeal a final decision of the Agency to the Board, wishes to request an extension of time
to file a petition for review pursuant to Section 105.208(b) of this Subpart, the person must file the
request within 35 days after the date of issuance of the Agency’s final decision.
Section 105.208
Extension of Time to File a Petition for Review
a)
Permit or Other Agency Final Decision. For appeals pursuant to Section 40(a)(1) of the Act,
the 35-
day period
described in Section 105.206(a) of this Subpart
for petitioning for a hearing may be
extended by the applicant for a period of time not to exceed 90 days by written notice provided to the
Board from the applicant and the Agency within the initial appeal period.
[415 ILCS 5/40(a)(1).].
1)
The applicant and the Agency must jointly file a request for extension within 35 days
after the date of service of the Agency’s final decision.
2)
The joint request described in subsection (a)(1) of this Section may seek an appeal period
not exceeding 125 days from the date of service of the Agency’s final decision to file a
petition for review under this Subpart.
b)
Hazardous Waste Permit. For appeals pursuant to Section 40(c) of the Act,
the 35-day period
described in Section 105.206(b) of this Subpart
for petitioning for a hearing may be extended by the
applicant for a period of time not to exceed 90 days by written notice provided to the Board from the
applicant and the Agency within the initial appeal period
.
If another person with standing to appeal a
hazardous waste disposal permit wishes to obtain an extension, there must be a written notice provided
to the Board by that person, the Agency, and the applicant, within the initial appeal period
. [415 ILCS
5/40(c).]
1)
If the applicant is the petitioner, the applicant and the Agency must jointly file a request
for extension within 35 days after the date of issuance of the Agency’s final decision.
2)
If a person with standing other than the applicant is the petitioner, the Agency, the
applicant and the other person must jointly file a request for extension within 35 days
after the date of issuance of the Agency’s final decision.
3)
The joint request described in subsection (b)(1) or (2) of this Section may seek an appeal
period not exceeding 125 days from the date of issuance of the Agency’s final decision to
file a petition for review under this Subpart.
c)
Any request for extension of time under this Section must be accompanied by written evidence that
the Agency joins in the request, e.g., affidavit of the petitioner or signature of the Agency’s
representative.
d)
Extensions of time to file petitions under Section 105.204(b), (c), or (e) of this Subpart are not
available.
Section 105.210
Petition Content Requirements
In addition to the requirements of 35 Ill. Adm. Code 101.Subpart C, the petition must include:
a)
The Agency’s final decision or issued permit;
92
b)
A statement specifying the date of issuance or service of the Agency’s final decision or issued
permit, as applicable pursuant to Section 105.206 of this Subpart;
c)
A statement specifying the grounds of appeal; and
d)
For petitions under Section 105.204(b) of this Subpart,
a demonstration that the petitioner raised the
issues contained within the petition during the public notice period or during the public hearing on the
NPDES permit application, if a public hearing was held, and a demonstration that the petitioner is so
situated as to be affected by the permitted facility.
[415 ILCS 5/40(e)(2)].
Section 105.212
Agency Record
a)
The Agency must file its entire record of its decision with the Clerk in accordance with Section
105.116 of this Part.
b)
The record must include:
1)
Any permit application or other request that resulted in the Agency’s final decision;
2)
Correspondence with the petitioner and any documents or materials submitted by the
petitioner to the Agency related to the permit application;
3)
The permit denial letter that conforms to the requirements of Section 39(a) of the Act or
the issued permit or other Agency final decision;
4)
The hearing file of any hearing that may have been held before the Agency, including any
transcripts and exhibits; and
5)
Any other information the Agency relied upon in making its final decision.
Section 105.214
Board Hearing
a)
Except as provided in subsections (b), (c) and (d) of this Section, the Board will conduct a public
hearing, in accordance with 35 Ill. Adm. Code 101.Subpart F, upon an appropriately filed petition
for review under this Subpart. The hearing will be based exclusively on the record before the
Agency at the time the permit or decision was issued, unless the parties agree to supplement the
record pursuant to Section 40(d) of the Act. If any party desires to introduce evidence before the
Board with respect to any disputed issue of fact, the Board will conduct a separate hearing and
receive evidence with respect to the issue of fact.
b)
The Board will not hold a hearing on a petition for review under this Subpart if the Board disposes
of the petition on a motion for summary judgment brought pursuant to 35 Ill. Adm. Code 101.516.
c)
The Board will not hold a hearing on a petition for review under Section 105.204(c) of this Subpart
if the Board determines that:
1)
The petition is duplicitous or frivolous; or
2)
The petitioner is so located as to not be affected by the permitted facility.
d)
The Board will not hold a hearing on a petition for review under Section 105.204(b) or (d) of this
Subpart if the Board determines that the petition is duplicitous or frivolous.
93
e)
If the Board determines to hold a hearing, the Clerk will give notice of the hearing pursuant to 35
Ill. Adm. Code 101.602.
SUBPARTC: CAAPP PERMIT APPEALS
Section 105.300
Applicability
This Subpart applies to proceedings before the Board concerning appeals from CAAPP final determinations made
pursuant to Section 39.5 of the Act.
Section 105.302
General Requirements
a)
The definitions of 35 Ill. Adm. Code 101.202 and Section 39.5 of the Act will apply to this Subpart
unless otherwise provided, or unless the context clearly indicates otherwise.
b)
If the Agency denies a CAAPP permit, permit modification, or permit renewal it shall provide to
USEPA, the permit applicant and, upon request, affected states, any person who participated in
the public comment process and any other person who could obtain judicial review under Section
40.2 and 41 of the Act a copy of each notification of denial pertaining to the permit applicant.
c)
In the case of a denial of a CAAPP permit, including a permit revision or permit renewal, or a
determination of incompleteness by the Agency regarding a submitted CAAPP application, or the
issuance by the Agency of a CAAPP permit with one or more conditions or limitations, or the
failure of the Agency to act on an application for a CAAPP permit, permit renewal, administrative
permit amendment or significant permit modification within the time frames specified in Section
39.5(5)(j) or Section 39.5(13) of the Act, as applicable, or the failure of the Agency to take final
action within 90 days after receipt of an application requesting minor permit modification
procedures (or 180 days for modifications subject to group processing requirements) pursuant to
Section 39.5(14) of the Act, to which the applicant, any person who participated in the public
comment process pursuant to Section 39.5(8) of the Act, or any other person who could obtain
judicial review pursuant to Section 41(a) of the Act objects, such persons may contest the decision
of the Agency by filing with the Clerk a petition for review of the Agency’s action in accordance
with this Section.
d)
For purposes of this Subpart, a person who participated in the public comment process is someone
who, during the public comment period, either commented on the draft permit, submitted written
comments, or requested notice of the final action on a specific permit application.
e)
The petition filed pursuant to subsection (c) of this Section must be filed within 35 days after the
Agency’s final permit action. Notwithstanding the above, if the petition is based solely on grounds
arising after the 35 day period expires, the petition may be filed within 35 days after the new
grounds for review arise. If the applicant is challenging the Agency’s failure to timely take final
action pursuant to Section 39.5 of the Act, the petition must be filed before the Agency takes
thesuch final action. Under no circumstances may a petition challenging the final permit action on
a Phase II acid rain permit be filed more than 90 days subsequent to thesuch final permit action.
f)
The Agency must appear as respondent at the hearing, and must file within 30 days after service
of the petition, an answer consisting of the entire Agency record of the CAAPP application
including the CAAPP permit application, the hearing record, the CAAPP permit denial or issuance
letter, and correspondence with the applicant concerning the CAAPP permit application.
g)
The Clerk will give notice of the petition and hearing in accordance with 35 Ill. Adm. Code 101.
h)
The proceeding will be conducted in accordance with 35 Ill. Adm. Code 101.
94
i)
The Agency shall notify USEPA, in writing, of any petition for hearing brought under this Part
involving a provision or denial of a Phase II acid rain permit within 30 days of the filing of the petition.
USEPA may intervene as a matter of right in any such hearing. The Agency shall notify USEPA, in
writing, of any determination or order in a hearing brought under this Section that interprets, voids, or
otherwise relates to any portion of a Phase II acid rain permit.
[415 ILCS 5/40.2(e)]
Section 105.304
Petition Content Requirements
a)
The petition must include:
1)
a concise description of the CAAPP source for which the permit is sought;
2)
a statement of the Agency’s decision or part thereof to be reviewed;
3)
a justification as to why the Agency’s decision or part thereof was in error; and
4)
thesuch other materials upon which the petitioner relies in its petition.
b)
The petition may include a request to stay the effectiveness of a denial of the CAAPP permit until
final action is taken by the Board pursuant to Section 40.2 of the Act.
SUBPART D: APPEAL OF AGENCY LEAKING UNDERGROUND
STORAGE TANK (LUST) DECISIONS
Section 105.400
Parties
a)
Petitioner. The person who files a petition for review of the Agency’s final decision made pursuant
to Sections 57.1
et seq
. of the Act (or under the former Section 22.18b(g) of the Act) must be named
as petitioner.
b)
Respondent. The Agency must be named as the respondent.
Section 105.402
Who May File a Petition for Review
Any owner or operator may file a petition for review pursuant to Section 40 of the Act of an Agency final
determination made pursuant to Sections 57.1
et seq.
of the Act (or under the former Section 22.18b(g) of the Act).
There are several Agency determinations that may be appealed pursuant to Section 40 of the Act. The Agency
determinations that may be appealed are included in Illustration A of this Part.
Section 105.404
Time for Filing the Petition
Petitions must be filed in accordance with this Section or the Board does not have the authority to review the
Agency’s decision and will dismiss the proceeding on its own motion or on the motion of any party. Within 35 days
after the date of service of the Agency’s final decision the petitioner may file with the Clerk of the Board:
a)
a petition for review that contains the requirements of Section 105.408 of this Part; or
b)
a request for an extension of time to file a petition for hearing pursuant to Section 105.406
of this Part.
Section 105.406
Extension of Time to File a Petition for Review
95
Pursuant to Section 40(a)(1) of the Act,
the 35-day period for petitioning for a hearing may be extended by the applicant
for a period of time not to exceed 90 days by written notice provided to the Board from the applicant and the Agency within
the initial appeal period.
[415 ILCS 5/40(c)]. The applicant and the Agency must jointly file a request for extension
with the Board within 35 days after the date of service of the Agency’s final decision. Upon an appropriately filed
request for an extension, the applicant has a period not exceeding 125 days after the date of service of the Agency’s
final decision to file a petition for review before the Board pursuant to Section 105.408 of this Part.
Section 105.408
Petition Content Requirements
In addition to the requirements of 35 Ill. Adm. Code 101.Subpart C the petition must contain:
a)
The Agency’s final decision;
b)
A statement specifying the date of service of the Agency’s final decision; and
c)
A statement specifying the grounds of appeal.
Section 105.410
Agency Record
a)
The entire Agency must file the entire record of its decision must be filed with the Board in
accordance with as directed by the Board or hearing officer pursuant to Section 105.116 of this
Part.
b)
The record must include:
1)
The plan or budget submittal or other request that requires an Agency decision;
2)
Correspondence with the petitioner and any documents or materials submitted by the
petitioner to the Agency related to the plan or budget submittal or other request;
3)
The final determination letter; and
4)
Any other information the Agency relied upon in making its determination.
Section 105.412
Board Hearing
The Board will conduct a public hearing, in accordance with 35 Ill. Adm. Code 101.Subpart F upon an appropriately
filed petition for review, unless a petition is disposed of by a motion for summary judgment brought pursuant to 35
Ill. Adm. Code 101.516. TheSuch hearing will be based exclusively on the record before the Agency at the time the
permit or decision was issued. [415 ILCS 5/40(d) and 5/40.2]
SUBPART E: APPEAL OF OSFM LUST DECISIONS
Section 105.500
Applicability
This Subpart applies to proceedings before the Board concerning appeals from OSFM final determinations made
pursuant to Section 57.9(c) of the Act.
Section 105.502
General Overview
OSFM final determinations are made either through the issuance of an “Eligibility and Deductibility Final
Determination” letter or by the failure of OSFM to act upon receipt of an “Eligibility and Deductibility
Determination” such form within 60 days pursuant to Section 57.9(c)(2) of the Act. The process before the Board for
review of final determinations by the OSFM includes, but is not limited to, the following steps. Upon receipt of a
96
petition for review, unless the Board determines that the petition is insufficient, a hearing date and location will be
assigned. Hearings will be publicly-noticed in the county where the underground storage tank site is located. Most
hearings will be held in either Chicago or Springfield. If the parties enter into a settlement agreement prior to or
during the hearing process, the parties may request that the Board accept and enter a final order adopting a
proposed settlement agreement; the such an order may be requested with or without a hearing.
Section 105.504
General Requirements
a)
Who Mmay Ffile. Any owner or operator of an underground storage tank who has been issued an
“Eligibility and Deductibility Final Determination” letter or who has not received an “Eligibility
and Deductibility Determination” letter from the OSFM within the time prescribed by Section415
ILCS 5/ 57.9(c)(2) of the Act, which is deemed to be a final decision appealable to the Board, may
file a petition with the Board seeking review of that final decision. The owner/operator must be
named as the petitioner, and the OSFM must be named as the respondent. Filing requirements are
set forth at 35 Ill. Adm. Code 101.Subpart C.
b)
Timely Petition. The petition for review must be filed with the Board within 35 days after the date
of the OSFM's “Eligibility and Deductibility Final Determination” letter or within 35 days from the
OSFM’s final decision due to its failure to act as required under Section 415 ILCS 5/57.9(c)(3) of
the Act. There will be a rebuttable presumption that petitioner received the OSFM's “Eligibility
and Deductibility Final Determination” letter four days from the date indicated on the letter.
c)
Service and Filing. The petitioner must serve all filings upon the OSFM at the address listed in 35
Ill. Adm. Code 101.Subpart C. All filings must be accompanied by a notice of filing. Methods and
proof of service, as well as the effective date of service, are governed by 35 Ill. Adm. Code
101.Subpart C.
Section 105.506
Petition Content Requirements
In addition to the requirements of 35 Ill. Adm. Code 101.Subpart C the petition must include:
a)
A copy of the OSFM's “Eligibility and Deductibility Final Determination” letter;
b)
A complete and precise description of the underground storage tank site, including the location of
the site, including the county, the number of underground storage tanks on-site, the substance(s)
stored in each tank, the date of the tank’s(s) registration; and the date of Illinois Emergency
Management Agency notification;
c)
A statement specifying the date of service of the OSFM’s final determination letter and
documentation to demonstrate the petition's timely filing;
d)
A statement specifying the grounds of appeal; and
e)
If the owner or operator is represented by counsel, an appearance must be filed in conjunction
with the petition.; and
f) A request to hold the hearing in either Springfield or Chicago, or a request to conduct the hearing
at a specified location other than Springfield or Chicago, specifying the reasons for that request. A
hearing will be held in an alternate location only to prevent material prejudice or undue delay.
Section 105.508
OSFM Record and Appearance
a)
Within 14 days after a petition for review of an OSFM eligibility or deductibility determination, the
attorney representing the OSFM must file an appearance with the Board.
97
b)
The entire OSFM must file the entire record of its decision must be filed with the Board as directed
by the Board or hearing officer in accordance with Section 105.116 of this Part. The record must
include:
1)
The request for OSFM determination of eligibility or deductibility;
2)
Correspondence with the petitioner;
3)
The denial letter; and
4)
Any other information the OSFM relied upon in making its determination.
Section 105.510
Location of Hearing
The hearing will be held in either Springfield or Chicago or in such other location as the hearing officer or the Board
may designate to prevent material prejudice or undue delay. Upon the proceeding being set for hearing, the Clerk
will cause notice of the hearing to be published. Public notice will be published at least 21 days before the hearing by
public advertisement in a newspaper of general circulation in the county in which the LUST site in question is
located.
SUBPART F: APPEALS OF OTHER FINAL DECISIONS OF STATE AGENCIES
Section 105.600 Applicability
This Subpart applies to any appeal of a State agency’s final decision to the Board when:
a) The appeal is authorized by law; and
b) The appeal is not otherwise addressed in this Part.
Section 105.602 Parties
a) Petitioner. The person who files a petition for review of the State agency’s final decision must be
named the petitioner.
b) Respondent(s). The State agency must be named the respondent. If the law authorizing the
appeal allows third-party appeals to the Board and such a petition is filed with the Clerk in
accordance with this Subpart, the person who applied for or otherwise requested the State
agency’s final decision, or the person to whom the State agency directs its final decision must be
named as a respondent in addition to the State agency.
Section 105.604 Burden of Proof
The burden of proof is as prescribed by the law authorizing the appeal. If that law does not address the burden of
proof, the petitioner has the burden of proof.
Section 105.606 Who May File a Petition for Review
Any person authorized by law to appeal a State agency’s final decision to the Board may file with the Clerk a
petition for review of the State agency’s final decision.
Section 105.608 Time to File the Petition; Service
98
a) Time to File. If a person who may petition the Board under Section 105.606 of this Subpart wishes
to appeal a State agency’s final decision to the Board under this Subpart, the person must file the
petition with the Clerk within the time prescribed by the law authorizing the appeal. If that law
does not address the time within which the person must file the petition for review, the petition
must be filed:
1) within 35 days after the date of service of the State agency’s final decision if the petitioner
is the person who applied for or otherwise requested the State agency’s final decision, or
the person to whom the State agency directs its final decision; or
2) within 35 days after the date of issuance of the State agency’s final decision if the
petitioner is a third party.
b) Service. In addition to any service requirements in the law authorizing the appeal, the petitioner
must serve a copy of the petition on all parties to the proceeding in accordance with Section
105.106 of this Part.
Section 105.610 Petition Content Requirements
In addition to any information or materials that the law authorizing the appeal may require to be included in the
petition, the petition must include:
a) The State agency’s final decision;
b) A statement specifying the date of issuance or service of the State agency’s final decision, as
applicable pursuant to Section 105.608(a) of this Subpart;
c) A statement specifying the grounds of appeal; and
d) Any filing fee prescribed by the law authorizing the appeal.
Section 105.612 State Agency Record
a) Time to File. The State agency must file with the Clerk the entire agency record of its decision
within the time prescribed by the law authorizing the appeal. If that law does not address the time
within which the State agency must file the record, the State agency must file the record in
accordance with Section 105.116 of this Part.
b) Contents. In addition to any information or materials that the law authorizing the appeal may
require to be included in the State agency’s record of its decision, the record must include:
1) Any application or other request that resulted in the State agency’s final decision;
2) Correspondence with the petitioner and any documents or materials that the petitioner
submitted to the State agency;
3) The State agency’s final decision;
4) The hearing file of any hearing that may have been held before the State agency,
including any transcripts and exhibits; and
5) Any other information that the State agency relied upon in making its final decision.
99
c) Service. In addition to any service requirements in the law authorizing the appeal, the State
Agency must serve a copy of the record on all parties to the proceeding in accordance with Section
105.106 of this Part.
Section 105.614 Board Hearing
a) The Board will conduct a public hearing as prescribed by the law authorizing the appeal. If that
law does not address the conduct of a public hearing, the Board will conduct a public hearing in
accordance with 35 Ill. Adm. Code 101.Subpart F.
b) The basis of a public hearing will be as prescribed in the law authorizing the appeal. If that law
does not address the basis for a public hearing, the hearing will be based exclusively on the record
before the State agency at the time it issued the final decision.
c) The Clerk will give notice of the hearing as prescribed in the law authorizing the appeal. If that
law does not address the notice of a public hearing, the Clerk will give notice of the hearing
pursuant to 35 Ill. Adm. Code 101.602
100
Illustration A: Agency LUST Final Decisions that are Reviewable
The following table includes Agency final determinations which may be appealed to the Board pursuant to the
Leaking Underground Storage Tank Program, Title XVI of the Act. Appealable determinations are listed in Title XVI,
so the reader should consult the Act for amendments to Title XVI which may affect this list.
Description of Final Determination
Section of the Act
Citation
35 Ill. Adm. Code
Citation
Agency’s determination concerning the owner’s or
operator’s physical soil classification and
groundwater investigation plan.
57.7(a)(1)(A)
732.305(a) and (c) and
732.503(b) and (f)
Agency’s determination as to a request for
reimbursement for costs associated with early action
pursuant to Section 57.6(b) of the Act.
57.7(a)(1)(B)
732.305(b)(1) and (c)
and 732.602
Agency’s determination concerning the owner’s or
operator’s budget for the physical soil classification
and groundwater investigation plan.
57.7(a)(2)
732.305(b)(2) and (c)
and 732.503 (b) and (f)
Agency’s determination concerning the site
classification.
57.7(b)
732.309, 732.500(a) and
732.503(b) and (f)
Agency’s determination concerning the corrective
action plan submitted for a high priority site.
57.7(c)(1)(A)
732.405(a) and
732.503(b) and (f)
Agency’s determination concerning the budget
associated with a corrective action plan submitted
for a high priority site.
57.7(c)(1)(B)
732.405(b) and
732.503(b) and (f)
Agency’s determination as to issuance of a no
further remediation letter in accordance with
Section 57.10 of the Act for a high priority site.
57.7(c)(1)(E)
732.410(a) and (d)
Agency’s determination concerning the
groundwater monitoring plan and associated
budget submitted for a low priority site.
57.7(c)(2)(B)
732.403(b) and (c) and
732.503(b) and (f)
Agency’s determination associated with a
groundwater monitoring completion report.
57.7(c)(2)(C)
732.403(g)
Agency’s determination as to issuance of a no
further remediation letter in accordance with
Section 57.10 of the Act for a low priority site.
57.7(c)(2)(E)
732.403(f) and
732.410(d)
Agency’s determination as to the site classification
for a no further action site.
57.7(c)(3)(B)
732.402 and 732.410(d)
Agency’s determination as to amount of
reimbursement.
57.8(i)
732.602(h)
Agency’s determination concerning the
completeness of plan or budget submittals by the
732.502(b), 732.503(f)
101
owner or operator.
Agency’s determination concerning the
completeness of reimbursement submittals by the
owner or operator.
732.602(a) and (b)
(Board Note: The above list was complete at time of adoption. However, the list is subject to subsequent changes in
the Act, the Board’s regulations and the interpretation of the corresponding law. By no means should this list be
interpreted to limit any right to appeal an Agency final determination before the Board. The list should only be used
as an aid for interpreting Title XVI and the corresponding law.)
102
Appendix A Comparison of Former and Current Rules
The following appendix compares the former procedural rules (in effect on December 31, 2000) with the current
procedural rules (effective January 1, 2001).
FORMER PART 105
CURRENT SECTION
105.102
105.202
105.204
105.206
105.212
105.Subpart C
105.103
105.204
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE A: GENERAL PROVISIONS
CHAPTER I: POLLUTION CONTROL BOARD
PART 106
PROCEEDINGS PURSUANT TO SPECIFIC RULES OR STATUTORY PROVISIONS
SUBPART A: GENERAL PROVISIONS
Section
106.100
Applicability
106.102
Severability
106.104
Definitions
SUBPART B: HEATED EFFLUENT, ARTIFICIAL COOLING LAKE, AND SULFUR DIOXIDE DEMONSTRATIONS
Section
106.200
General
106.202
Petition Requirements
106.204
Additional Petition Requirements in Sulfur Dioxide Demonstration
106.206
Notice
106.208
Agency Recommendation and Petitioner Response
106.210
Burden of Proof
SUBPART C: WATER WELL SETBACK EXCEPTION PROCEDURES
Section
106.300
General
106.302
Initiation of Proceeding
106.304
Petition Content Requirements
106.306
Response and Reply
106.308
Hearing
106.310
Burden of Proof
SUBPART D: REVOCATION AND REOPENING OF
CLEAN AIR ACT PERMIT PROGRAM (CAAPP) PERMITS
Section
106.400
General
106.402
Definitions
103
106.404
Initiation of Proceedings
106.406
Petition Content Requirements
106.408
Response and Reply
106.410
Hearing
106.412
Burden of Proof
106.414
Opinion and Order
106.416
USEPA Review of Proposed Determination
SUBPART E: MAXIMUM ACHIEVABLE CONTROL TECHNOLOGY DETERMINATIONS
Section
106.500
General
106.502
Definitions
106.504
Initiation of Proceedings
106.506
Petition Content Requirements
106.508
Response and Reply
106.510
Hearing
106.512
Burden of Proof
106.514
Board Action
SUBPART F: CULPABILITY DETERMINATIONS FOR PARTICULATE MATTER LESS THAN OR EQUAL TO 10
MICRONS (PM-10)
Section
106.600
General
106.602
Initiation of Proceeding
106.604
Petition Content Requirements
106.606
Response and Reply
106.608
Hearing
106.610
Burden of Proof
SUBPART G: INVOLUNTARY TERMINATION OF ENVIRONMENTAL MANAGEMENT SYSTEM AGREEMENTS
(EMSAs)
Section
106.700
Purpose
106.702
Applicability
106.704
Termination Under Section 52.3-4(b) of the Act
106.706
Who May Initiate, Parties
106.707
Notice, Statement of Deficiency, Answer
106.708
Service
106.710
Notice of Hearing
106.712
Deficient Performance
106.714
Board Decision
106.716
Burden of Proof
106.718
Motions, Responses
106.720
Intervention
106.722
Continuances
106.724
Discovery, Admissions
106.726
Subpoenas
106.728
Settlement Procedure
106.730
Authority of Hearing Officer, Board Members, and Board Assistants
106.732
Order and Conduct of Hearing
106.734
Evidentiary Matters
106.736
Post-Hearing Procedures
104
106.738
Motion After Entry of Final Order
106.740
Relief from Final Orders
APPENDIX A Comparison of Former and Current Rules
AUTHORITY: Implementing and authorized by Sections 5, 14.2(c), 22.4, 26, 27, 28, 28.1, 28.5, 35, 36, 37, 38, 39.5
and 52.3 of the Environmental Protection Act (the Act). [415 ILCS 5/5]
SOURCE: Subpart B: Originally adopted as Chapter I: Procedural Rules, Part IV: Variances, in R70-4, at 1 PCB 43,
October 8, 1970; amended in R77-16, 29 PCB 503, at 2 Ill. Reg. 16, p. 3, effective May 1978, amended in R79-9, 35
PCB 433, at 3 Ill. Reg. 51, p. 128, effective December 7, 1979; amended in R80-12, 40 PCB 451, at 5 Ill. Reg. 2763,
effective March 2, 1981; codified at 6 Ill. Reg. 8357; amended in R84-10, 62 PCB 87, at 9 Ill. Reg. 1409, effective
January 16, 1985; Old Part repealed, new Part adopted in R00-20 at 24 Ill. Reg. _____, effective ______________.
SUBPART A: GENERAL PROVISIONS
Section 106.100
Applicability
a)
This Part applies to adjudicatory proceedings pursuant to specific rules or statutory provisions.
Specifically, the Part applies to heated effluent, artificial cooling lake and sulfur dioxide
demonstrations, water well setback exception procedures, revocation and reopening of CAAPP
permits, maximum achievable control technology determinations, culpability determinations for
particulate matter less than or equal to 10 microns, and the involuntary termination of
environmental management system agreements.
b)
This Part must be read in conjunction with 35 Ill. Adm. Code 101 which contains procedures
generally applicable to all of the Board’s adjudicatory proceedings. In the event of a conflict
between the requirements of 35 Ill. Adm. Code 101 and those of this Part, the provisions of this
Part apply.
Section 106.102
Severability
If any provision of this Part or its application to any person is adjudged invalid thesuch adjudication does not affect
the validity of this Part as a whole or of any petition not adjudged invalid.
Section 106.104
Definitions
For the purpose of this Subpart, words and terms will have the meaning as defined in 35 Ill. Adm. Code 101.Subpart
B unless otherwise provided, or unless the context clearly indicates otherwise.
SUBPART B: HEATED EFFLUENT, ARTIFICIAL COOLING LAKE, AND SULFUR DIOXIDE DEMONSTRATIONS
Section 106.200
General
a)
Description
1)
Heated Effluent Demonstration
A)
The owner or operator of a source of heated effluent that discharges 150
megawatts (0.5 billion British thermal units per hour) or more must demonstrate
in an adjudicatory proceeding before the Board, pursuant to 35 Ill. Adm. Code
302.211(f), that discharges from that source have not caused and cannot be
reasonably expected to cause significant ecological damage to the receiving
waters.
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B)
The owner or operator must make the demonstration under subsection (a)(1)(A)
of this Section not less than 5 years nor more than 6 years after operations
commence.
C)
If the Board finds that the proof of the owner or operator under subsection
(a)(1)(A) of this Section is inadequate, the Board’s order will include, but not be
limited to, a requirement that the owner or operator perform appropriate
corrective measures within a reasonable time as determined by the Board.
2)
Artificial Cooling Lake Demonstration
A)
If a discharger wishes to have the Board establish specific thermal standards for
its discharge to an artificial cooling lake pursuant to 35 Ill. Adm. Code
302.211(j)(5) that would apply to the discharge in lieu of the applicable
provisions of the thermal water quality standards set forth in 35 Ill. Adm. Code
302.211 and 303, the discharger must demonstrate in an adjudicatory
proceeding before the Board, pursuant to 35 Ill. Adm. Code 302.211(j)(3), that
the artificial cooling lake receiving the heated effluent will be environmentally
acceptable and within the intent of the Act.
B)
If the Board finds that the proof of the discharger under subsection (a)(2)(A) of
this Section is adequate, the Board will establish, pursuant to 35 Ill. Adm. Code
302.211(j)(5), specific thermal standards to be applied to the discharge to the
artificial cooling lake in lieu of the applicable provisions of the thermal water
quality standards set forth in 35 Ill. Adm. Code 302.211 and 303.
C)
A Board order providing alternate thermal standards under subsection (a)(2)(B)
of this Section will include, but not be limited to, the following conditions:
i)
Pursuant to 35 Ill. Adm. Code 302.211(j)(1), all discharges from the
artificial cooling lake to other waters of the State must comply with the
applicable provisions of 35 Ill. Adm. Code 302.211(b) through (e); and
ii)
Pursuant to 35 Ill. Adm. Code 302.211(j)(2), the heated effluent
discharged to the artificial cooling lake must comply with all applicable
provisions of 35 Ill. Adm. Code Subtitle C, Chapter I, except 35 Ill.
Adm. Code 302.211(b) through (e).
3)
Sulfur Dioxide Demonstrations. Any owner or operator of a fuel combustion emission
source may petition the Board, pursuant to 35 Ill. Adm. Code 214.185 and this Subpart,
for approval of substitute standards from those set forth in 35 Ill. Adm. Code 214.183 and
214.184.
b)
Initiation of Proceeding. The owner or operator may initiate a heated effluent, artificial cooling
lake or sulfur dioxide demonstration by filing with the Clerk a petition in accordance with this
Subpart.
c)
Parties. The owner or operator must be named the petitioner and the Agency must be named the
respondent.
d)
Filing and Service. Filing and service must be in accordance with 35 Ill. Adm. Code 101.Subpart C.
Section 106.202
Petition Requirements
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a)
Heated Effluent Demonstration. The petition must include, where applicable, the following
information but may include additional information that the petitioner believes will be relevant to
the proceeding:
1)
General Plant Description:
A)
Generating capacity;
B)
Type of fuel used;
C)
Operating characteristics of the condenser cooling system;
D)
History of the load factor of the plant for the time during which the plant has
operated, but for no more than the last 5 years;
E)
Projected load factors for the life of the plant;
F)
Estimated date of retirement for each unit at the plant and any plans for
additional units at the plant;
G)
History of plant shutdowns; and
H)
Planned, emergency, and projected shutdowns with frequency and duration.
2)
Description of Method for Heat Dissipation:
A)
Type of system used (such as once-through, mechanical, and draft cooling
towers) in narrative form; and
B)
Summary information on temperature of discharge to receiving waters in
narrative form.
3)
Plume Studies:
A)
Actual plume studies in the last 5 years correlated with plant operation and
meteorological conditions;
B)
Theoretical plume studies for all four seasons for typical and worst case
conditions. Worst case conditions must be identified as worst conditions of plant
load factors, precipitation, ambient water temperature, and air temperature;
thesuch studies must consider the frequency of occurrence and their joint
probabilities of occurrence; and
C)
Theoretical plume studies that identify isotherms at 3
0
Fahrenheit (1.7
0
Centigrade) intervals down to ambient temperature indicating three-dimensional
effects.
4)
A demonstration that discharges from the source of heated effluent have not caused and
cannot be reasonably expected to cause significant ecological damage to the receiving
waters, including:
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A)
Biological studies in the last 5 years on receiving waters, including species
studied, location of studies, and conclusions reached, including conclusions as to
both the lethal and sublethal effects of the thermal discharge;
B)
The impact on other animal life (such as waterfowl and amphibians) in the area
as a result of the thermal discharge; and
C)
Secondary Considerations
i)
Possible and known impact on recreation from thermal discharges; and
ii)
Management practices employed or planned in order to limit the effect
of any environmental harm established under this subsection (a)(4).
D) The demonstration required under this subsection (a)(4) may take any of the
forms described in subsection (b)(2) of this Section.
5)
A citation to any prior proceedings, in which the petitioner was a party, brought
pursuant to 35 Ill. Adm. Code 302.211(f) or (j)(3).
b)
Artificial Cooling Lake Demonstration. The petition must include, where applicable, the following
information but may include additional information that the petitioner believes will be relevant to
the proceeding:
1)
A demonstration that the artificial cooling lake receiving the heated effluent will be
environmentally acceptable and within the intent of the Act, including:
A)
Provision of conditions capable of supporting shellfish, fish and wildlife, and
recreational uses consistent with good management practices; and
B)
Control of the thermal component of the discharger’s effluent by a
technologically feasible and economically reasonable method.
2)
The demonstration required under subsection (b)(1) of this Section may take the form of
any of the following:
A)
A final environmental impact statement;
B)
Pertinent provisions of environmental assessments used to prepare the final
environmental impact statement; or
C)
A showing pursuant to Section 316(a) of the Clean Water Act [33 USC 1326].
3)
A citation to any prior proceedings, in which the petitioner was a party, brought
pursuant to 35 Ill. Adm. Code 302.211(f) or (j)(3).
c)
Sulfur Dioxide Demonstration. The petition must include but not be limited to the following
information:
1)
An explicit statement of the site-specific emission limitation (in pounds of sulfur dioxide
per million British tThermal uUnits (btu) actual heat input and total pounds of sulfur
dioxide per hour) that is proposed for the facility.
2)
Emission Sources Description:
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A)
The diameter, height, exit gas temperature, and exit gas velocity for all stacks or
vents through which sulfur dioxide is emitted into the atmosphere;
B)
A description of the fuels used including type, ultimate analysis, sulfur content,
and heat content;
C)
A description of the type of fuel combustion equipment including method of
firing and size (in million btu per hour capacity);
D)
A topographic map of terrain within 30 miles of the emission source(s);
E)
A specific description of the location of the emission sources, including a plot
plan; and
F)
A specific description of the operating conditions which produce maximum
sulfur dioxide emissions.
3)
A summary of any and all ambient air quality data collected by the owner or operator of
the source(s) since January 1, 1973. The summary must include annual averages;
maximum and second-highest one-hour, three3-hour, and 24-hour averages for each
month; and the number of times the three3-hour and 24-hour sulfur dioxide standards
were exceeded during each month.
4)
A summary of any and all meteorological data collected by the owner or operator of the
source(s) since January 1, 1973, if thesuch data are used in the development of the site-
specific emission standard.
5)
A complete description of and justification for all dispersion models and plume rise
equations that are used to develop the site-specific emission limitation, including all model
equations.
6)
A description of and justification for the use of all data that were inputs to the dispersion
and plume rise formula used to establish the site-specific emission standard. The
description and justification must cover, as a minimum, the following input data:;
A)
Stack diameters, stack heights, exit gas temperatures, and exit gas velocities for
all stacks and vents emitting sulfur dioxide at the subject facility as well as for
any other sources of sulfur dioxide that were modeled;
B)
All sulfur dioxide emission sources that were modeled; and
C)
All meteorological data.
7)
Calculated maximum ground-level concentrations using the following method, or such
other method (or modification of the hereinafter stated method) that the petitioner proves
to the satisfaction of the Board to be acceptable.
A)
Selection of simulation model:
i)
Gaussian models that allow the input of hourly meteorological data
must be used which are appropriate for the specific location and type of
source(s) in question.
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ii)
Dispersion models presented in “Guidelines on Air Quality Models”
(EPA-450/2-78-027), as amended from time to time,or those deemed by
the Board to be equivalent to these models must be used for detailed air
quality studies.
B)
Selection of meteorological data and stack parameters:
i)
The most recent 5 years of hour-by-hour meteorological data reasonably
available, including wind speed, wind direction, atmospheric stability,
mixing height and surface temperature must be used, unless the
petitioner demonstrates that one of the 5 years causes substantially
higher concentrations than the other four, in which case detailed
analyses conducted for only that “worst case” year would be
acceptable. Notwithstanding the previous sentence, one year of on-site
data may be used in lieu of the 5-year data requirement;
ii)
Data must be from the nearest, representative, quality controlled
meteorological collecting site; and
iii)
Stack parameters (including emission rate, stack height, stack diameter,
exit velocity, and exit temperature) must reflect the maximum operating
rate for comparison with the 24-hour and 3-hour sulfur dioxide
standards.
C)
Receptors:
i)
Receptors must be located so as to ensure that the source's maximum
impact is detected; and
ii)
The determination of the receptor grid must be fully documented in the
modeling study;
D)
Special conditions:
i)
All special conditions that may affect the dispersion of the effluent
plume, including local terrain effects and aerodynamic downwash,
must be considered in the modeling study;
ii)
If terrain is a factor in the vicinity of the source, a model capable of
handling variable-height receptors must be used; and
iii)
If the computed height of the effluent plume is less than 2.5 times the
height of nearby buildings or local obstructions, aerodynamic
downwash must be studied and considered as a possible factor in the
dispersion of that effluent.
E)
Determination of violation: The determination of whether an
applicable air quality increment or standard is being violated must be
based on the second-highest predicted concentration over the receptor
grid for short-term averaging times and on the highest predicted
concentration for annual averaging times. However, if only one year of
meteorological data is used in the short-term analysis, then the highest-
predicted concentration may be compared to the applicable standard to
determine whether a violation has occurred.
110
F)
Other sources: Effects of other sources of sulfur dioxide must be taken
into account in the modeling study. Methods by which other sources of
sulfur dioxide may be accounted are as follows:
i)
An acceptable method is to estimate the “background” from monitoring
data which has been subjected to adequate quality control where
available. When monitored data is used, the background must be
estimated using monitoring days with meteorological conditions similar
to those identified as “worst case” for the source in question; or
ii)
If monitoring data is not available, then all sources of sulfur dioxide
having a significant impact in the area of the source's impact area must
be used in the simulation model. These sources of sulfur dioxide must
also be modeled at their maximum allowable emission rate for any
studies addressing 24-hour or 3-hour averaging times.
8)
Estimates of the frequency, characteristics, probable time of occurrence, and duration of
the meteorological conditions associated with the maximum ground-level concentration of
sulfur dioxide to which the facility under study contributes. A description of the
techniques used in arriving at the above estimates must be included.
9)
Background concentrations that were determined for all meteorological conditions
required to be examined under subsection (c)(7) of this Section and for any other
meteorological conditions considered in the development of the alternative standard.
10)
A description of the method that was used to determine background sulfur dioxide
concentrations in the vicinity of the subject facility for each of the meteorological
conditions required to be examined under subsection (c)(7) of this Section and for any
additional meteorological conditions considered in developing the alternative standard.
11)
An evaluation and calibration of the dispersion model if air quality monitoring data were
available to perform thesuch evaluation and calibration.
Section 106.204
Additional Petition Requirements in Sulfur Dioxide Demonstrations
In addition to meeting the petition contentds requirements of Section 106.202(c) of this Part the petitioner must
ensure that the procedural requirements of 40 CFR 51.4 (1977) are met and, at least 30 days prior to the date of the
hearing, petitioner must:
a)
Give notice to the public by prominent advertisement in the Air Quality Control Region affected
announcing the date, time and place of thesuch hearing;
b)
Make available a copy of the petition for public inspection in at least one location in the Air Quality
Control Region in which the source is located;
c)
Notify the Administrator of USEPA (through the appropriateRegion V Office);
d)
Notify each local air pollution control agency located within the affected Air Quality Control
Region; and
e)
Notify, in the case of an interstate Air Quality Control Region, any air pollution control agencies of
other states included, in whole or in part, in the Region.
111
Section 106.206
Notice
The Clerk will give notice of the petition and hearing in accordance with 35 Ill. Adm. Code 101.602. The
proceedings must be in accordance with 35 Ill. Adm. Code 101.Subpart F.
Section 106.208
AgencyRecommendation and Response
The Agency must file a recommendation on a petition under this Subpart as prescribed in this Sectionbelow. The
petitioner or any other party to the proceeding may file a response to the Agency recommendation within 14 days
after service of the petition. Any person other than a party to the proceeding may file a response to the Agency
recommendation within 14 days after the Agency files the recommendation.
a)
Heated Effluent Demonstration
1)
Within 60 days after the owner or operator files the petition, the Agency must make a
recommendation to the Board on the petition. The recommendation may include, but is
not limited to:
A)
A description of the Agency’s efforts in conducting its review of the petition;
B)
The Agency's conclusion as to whether discharges from the source have caused
or can reasonably be expected to cause significant ecological damage to the
receiving waters;
C)
The factual basis for the Agency's conclusion;
D)
Any corrective measures that the Agency recommends be taken and the
recommended time period to implement the measures; and
E)
The Agency's recommendation on how the Board should dispose of the petition.
b)
Artificial Cooling Lake Demonstration
1)
Within 60 days after the owner or operator files the petition, the Agency must make a
recommendation to the Board on the petition. The recommendation may include, but is
not limited to:
A)
A description of the Agency’s efforts in conducting its review of the petition;
B)
The Agency's conclusion as to whether the artificial cooling lake receiving the
heated effluent will be environmentally acceptable and within the intent of the
Act;
C)
The factual basis for the Agency's conclusion; and
D)
The Agency's recommendation on how the Board should dispose of the petition.
c)
Sulfur Dioxide Demonstration
1)
Within 90 days after the filing of the petition the Agency must make a recommendation to
the Board as to be proposed site-specific emission limitation. TheSuch recommendation
may include, but is not limited to the following:
A)
A description of the efforts made by the Agency in conducting its review;
112
B)
The Agency's conclusion as to whether the proposed site-specific emission
limitation is adequate to prevent violations of the Primary and Secondary Sulfur
Dioxide Ambient Air Quality Standards; and
C)
The Agency's conclusion as to what disposition should be made of the petition.
Section 106.210
Burden of Proof
The burden of proof will be on the petitioner.
SUBPART C: WATER WELL SETBACK EXCEPTION PROCEDURES
Section 106.300
General
a)
Description. This Subpart applies to any
owner of a new potential route, a new potential primary
source other than landfilling or land treating, or new potential secondary source
who files a petition for
an exception from the setback requirements of Sections 14.2 and 14.3(e) of the Act pursuant to
Section 14.2(c) of the Act and this Subpart. [415 ILCS 5/14.2(c)]
b)
Parties. The owner filing the petition for an exception must be named the petitioner and the
Agency must be named the respondent. Affected well owners who are not petitioners also must be
named respondents.
c)
Filing and service. The filing and service requirements of 35 Ill. Adm. Code 101.Subpart C will
apply to the proceedings of this Subpart.
Section 106.302
Initiation of Proceeding
a)
The petitioner must file the petition for exception with the Clerk of the Board, and must serve one
copy upon the Agency.
b)
The petitioner must notify and provide a copy of the petition to the owners of each potable water
supply for which the setback
requirements would be affected by the exception.
Section 106.304
Petition Content Requirements
The petition must contain the following information:
a)
A written statement, signed by the petitioner or an authorized representative, outlining the scope
of the evaluation, the nature of, the reasons for and the basis of the exception, consistent with the
burden of proof contained in Section 106.310 of this Part;
b)
The nature of the petitioner's operations and control equipment;
c)
Proof of service on owners required to be notified and provided with a copy of the petition as
required by Section 106.302(b) of this Part, 35 Ill. Adm. Code 101, and Section 14.2(c) of the Act;
and
d)
Any other information which may be required by Section 14.2 of the Act.
Section 106.306
Response and Reply
113
a)
Within 21 days after the filing of a petition, the Agency and any owner required to be notified may
file a response to any petition in which it has not joined as co-petitioner. The response must
include the comments concerning potential Board action on the petition.
b)
The petitioner may file a reply within 14 days after the service of any response.
Section 106.308
Hearing
The Board will hold at least one public hearing in an exception proceeding. The hearing officer will schedule the
hearing. The Clerk will give notice of hearing in accordance with 35 Ill. Adm. Code 101. The proceedings will be in
accordance with 35 Ill. Adm. Code 101.Subpart F.
Section 106.310
Burden of Proof
The burden of proof is on the petitioner. The petitioner must demonstrate that:
a)
Compliance with the setback requirements of Section 14.2 or 14.3(e) of the Act would pose an
arbitrary and unreasonable hardship;
b)
The petitioner will utilize the best available control technology economically achievable to
minimize the likelihood of contamination of the potable water supply well;
c)
The maximum feasible alternative setback will be utilized; and
d)
The location of thesuch potential route will not constitute a significant hazard to the potable water
supply well.
SUBPART D: REVOCATION AND REOPENING OF
CLEAN AIR ACT PERMIT PROGRAM (CAAPP) PERMITS
Section 106.400
General
a)
Description. The provisions of this Subpart will apply to:
1)
Any revocation proceeding initiated by the Agency when it determines that there are
grounds to revoke and reissue a Clean Air Act Permit Program (CAAPP) permit for
cause, pursuant to Section 39.5(15)(b) of the Act; and
2)
Any reopening proceeding initiated by the Agency pursuant to a notice that there are
grounds to terminate or revoke and reissue a CAAPP permit for cause, pursuant to
Section 39.5(16) of the Act.
b)
Parties.
1)
In a revocation proceeding initiated by the Agency, the Agency will be named as
petitioner and the holder of the CAAPP will be named as respondent.
2)
In a reopening proceeding initiated by the Agency, the Agency will be named as
petitioner and the holder of the CAAPP will be named as respondent.
c)
Filing and service. The filing and service requirements of 35 Ill. Adm. Code 101.Subpart C will
apply to the proceedings of this Subpart.
Section 106.402
Definitions
114
The definitions of 35 Ill. Adm. Code 101.Subpart B and Section 39.5 of the Act will apply to this Subpart unless
otherwise provided, or unless the context clearly indicates otherwise. If there is a conflict, the definitions of Section
39.5 of the Act will apply.
Section 106.404
Initiation of Proceedings
a)
Agency Rrevocation Pproceeding. The Agency may initiate a revocation proceeding before the
Board by serving a petition for revocation upon the respondent and filing the petition with the
Board.
b)
USEPA Rreopening Pproceeding. If the Agency receives from USEPA a notice to terminate or
revoke and reissue a CAAPP permit for cause, the Agency must, within 30 days after receipt of
USEPA's notice, serve a petition upon the respondent and file the petition with the Board.
Section 106.406
Petition Content Requirements
a)
Agency Rrevocation Pproceeding. The petition in a revocation proceeding must include:
1)
The grounds for the revocation of the CAAPP permit;
2)
The associated permit record; and
3)
Any other information necessary to establish that the CAAPP permit should be revoked.
b)
USEPA Rreopening Pproceeding. The petition in a reopening proceeding must include:
1)
USEPA notice to terminate or revoke and reissue a CAAPP permit that initiated the
matter for cause that initiated the matter;
2)
The associated permit record; and
3)
The Agency's proposed determination and the justification for the proposed
determination.
Section 106.408
Response and Reply
a)
The respondent may file a response to the Agency's petition within 21 days after service of the
petition.
b)
The Agency may file a reply within 21 days after filing of any response.
Section 106.410
Hearing
The Board will hold at least one public hearing in the county where the CAAPP source is located. The Clerk will
give notice of the petition and hearing in accordance with 35 Ill. Adm. Code 101.602. The proceeding must be
conducted in accordance with 35 Ill. Adm. Code 101.Subpart F.
Section 106.412
Burden of Proof
a)
Agency revocation proceeding. The burden of proof will be on the Agency to establish that the
permit should be revoked under the standards set forth in this Act and the Clean Air Act.
b)
USEPA reopening proceeding. The burden of proof will be on the Agency.
115
Section 106.414
Opinion and Order
a)
Agency Rrevocation Pproceeding:
1)
The Board will issue a written opinion and order within 120 days after the filing of the
petition that sets forth the Board's decision and supporting rationale.
2)
If the Board determines that the permit should be revoked and reissued, its final order will
direct the Agency to revoke and reissue the CAAPP permit consistent with Section 39.5 of
the Act.
b)
USEPA Rreopening Pproceeding:
1)
After due consideration of the written and oral statements, the testimony and arguments that
shall be submitted at hearing, the Board shall issue and enter an interim order for the proposed
determination
within 120 days after the filing of the petition,
which shall set forth all
changes, if any, required in the Agency's proposed determination. The interim order shall
comply with requirements for final order as set forth in Section 33 of theis Act. Issuance of an
interim order by the Board under this
subsection (b)],
however, shall not affect the permit
status and does not constitute a final action for purposes of theis Act or the Administrative
Review Law
. [415 ILCS 5/39.5(16)(b)(ii)]
2)
The Board shall cause a copy of its interim order to be served upon all parties to the proceeding
as well as upon USEPA. The Agency shall submit the proposed determination to USEPA in
accordance with the Board's interim order within 180 days after receipt of the notification from
USEPA
. [415 ILCS 5/39.5(16)(b)(iii)]
Section 106.416
USEPA Review of Proposed Determination
a)
If USEPA does not object to the proposed determination within 90 days after receipt, the Board
will, within 7 days after receipt of USEPA's final approval or within 21 days after expiration of the
90-day period, whichever is earlier, enter the interim order as a final order. The final order may be
appealed as provided by Title XI of the Act. The Agency must take final action in accordance with
the Board's final order.
b)
USEPA Objection.
1)
If USEPA objects to the proposed determination within 90 days after receipt,
the Agency
shall submit USEPA’s objection and the Agency's comments and recommendation on the
objection to the Board
and permittee upon receipt of the objection. Within 15 days after
receipt of USEPA's objection, the Agency must submit
the Agency's comments and
recommendation on the objection to the Board and permittee
. [415 ILCS 5/39.5(16)(c)(ii)]
2)
The Board shall review its interim order in response to USEPA's objection and the Agency's
comments and recommendation and issue a final order in accordance with Sections 32 and 33
of theis Act
within 60 days after receipt of the Agency's comments and recommendation
on USEPA's objection.
The Agency shall, within 90 days after receipt of such objection,
respond to USEPA's objection in accordance with the Board's final order
. [415 ILCS
5/39.5(16)(c)(ii)]
SUBPART E: MAXIMUM ACHIEVABLE CONTROL
TECHNOLOGY DETERMINATIONS
116
Section 106.500
General
a)
Description. The provisions of this Subpart will apply to any proceeding initiated by an owner or
operator of a CAAPP source pursuant to Section 39.5(19)(a) or (e) of the Act challenging the
Agency’s determination not to utilize the hazardous air pollutant emission limitation proposed by
the CAAPP source or the hazardous air pollutant limitation for a case-by-case maximum
achievable control technology (MACT) proposed by the CAAPP source.
b)
Parties. The owner or operator of the CAAPP source who initiates the proceeding must be named
as petitioner and the Agency must be named as respondent.
c)
Filing and service. The filing and service requirements of 35 Ill. Adm. Code 101.Subpart C will
apply to the proceedings of this Subpart.
Section 106.502
Definitions
The definitions of 35 Ill. Adm. Code 101.Subpart B and Section 39.5 of the Act will apply to this Subpart unless
otherwise provided, or unless the context clearly indicates otherwise. If there is a conflict, the definitions of Section
39.5 of the Act will apply.
Section 106.504
Initiation of Proceedings
The owner or operator of a CAAPP source may initiate a proceeding before the Board by serving a petition upon the
Agency and filing with the Clerk of the Board.
Section 106.506
Petition Content Requirements
A petition filed pursuant to Sections 39.5(19)(a) and (e) of the Act must include:
a)
A detailed description of and justification for the emission limitation that is being proposed for the
source and an explanation of how thesuch emission limitation provides for the level of control
required under Section 112 of the CAA (42 USC 7412);
b)
A petition filed pursuant to Section 39.5(19)(a) of the Act must also include justification for the
Board to determine whether the emission limitation proposed by the owner or operator of the
CAAPP source provides for the emission limitation equivalent to the emission limitation that would
apply to the source if USEPA had promulgated the applicable emission standard pursuant to
Section 112(d) of the CAA (42 USC 7412(d)) in a timely manner; and
c)
The Agency’s notification of its refusal to adopt the CAAPP source’s proposed emission limitation
or the CAAPP source’s MACT determination.
Section 106.508
Response and Reply
a)
The Agency may file a response to the petition of the owner or operator within 21 days after
service of the petition.
b)
The owner or operator may file a reply within 21 days after the filing of any response.
Section 106.510
Hearing
The Board will hold at least one public hearing in the county where the CAAPP source is located. The Clerk of the
Board will give notice of the petition and any hearing in accordance with 35 Ill. Adm. Code 101.602. The proceeding
will be conducted in accordance with 35 Ill. Adm. Code 101.Subpart F.
117
Section 106.512
Burden of Proof
The burden of proof will be on the petitioner to demonstrate that the emission limitation provides for the level of
control required under Section 112 of the Clean Air Act.
Section 106.514
Board Action
The Board shall determine whether the emission limitation proposed by the owner or operator or an alternative emission
limitation proposed by the Agency provides for the level of control required under Section 112 of the Clean Air Act, or shall
otherwise establish an appropriate emission limitation, pursuant to Section 112 of the Clean Air Act
. [415 ILCS
5/39.5(19)(a) and (e)]
SUBPART F: CULPABILITY DETERMINATIONS FOR PARTICULATE MATTER LESS THAN OR EQUAL TO 10
MICRONS (PM-10)
Section 106.600
General
a)
Description. The provisions of this Subpart will apply to any appeal initiated under 35 Ill. Adm.
Code 212.702 by an owner or operator of a source pursuant to a finding by the Agency of
culpability for an exceedence of the 24-hour ambient air quality standard for particulate matter less
than or equal to ten(10) microns (PM-10) at 35 Ill. Adm. Code 243.120 by the Agency.
b)
Parties. The owner or operator of a source who initiated the proceeding will be named as the
petitioner and the Agency will be named as respondent.
c)
Filing and service. The filing and service requirements of 35 Ill. Adm. Code 101.Subpart C will
apply to the proceedings of this Subpart.
Section 106.602
Initiation of Proceedings
The owner or operator of a source may initiate a proceeding before the Board by serving a petition for review of the
Agency culpability determination and filing the petition with the Clerk of the Board.
Section 106.604
Petition Content Requirements
A petition for review filed pursuant to this Subpart must include, but need not be limited to:
a)
A copy of the letter, or other written communication, setting forth the Agency's finding of
culpability;
b)
A clear identification of the county in which the source is located; and
c)
A detailed description of, and justification for, the source's position that the Agency's finding of
culpability is incorrect.
Section 106.606
Response and Reply
a)
The Agency must file a response to a petition appealing a determination of culpability within 21
days after service of the petition.
b)
The Agency's response must contain, at a minimum, the basis of its determination of the
petitioner's culpability, including any meteorological, monitoring, or sampling data upon which
the determination was made.
118
c)
The petitioner may file a reply within 7 days after the service of any response by the Agency.
Section 106.608
Hearing
a)
Within 14 days after a petition is filed, the Agency must publish notice of thesuch petition in a
newspaper of general circulation in the county in which the source is located. Within 30 days after
the filing of the petition, any person may file with the Clerk of the Board a request for hearing on
the petition.
b)
The hearing officer will schedule any hearing. The Clerk of the Board must give notice of the
hearing in accordance with 35 Ill. Adm. Code 101.602. The proceeding will be conducted in
accordance with 35 Ill. Adm. Code 101.Subpart F.
Section 106.610
Burden of Proof
The burden of proof will be on the petitioner to demonstrate that the Agency’s determination of culpability is
incorrect.
SUBPART G: INVOLUNTARY TERMINATION OF ENVIRONMENTAL MANAGEMENT SYSTEM AGREEMENTS
(EMSAs)
Section 106.700
Purpose
The purpose of this Subpart is to set forth the criteria and procedures under which the Board or the Agency may
terminate an EMSA, as defined in 35 Ill. Adm. Code 101.202.
Section 106.702
Applicability
a)
When the Agency terminates an EMSA under Section 52.3-4(b) of the Act, only Section 106.704 of
this Subpart applies.
b)
This Subpart, except for Section 106.704, applies to proceedings in which the Board will determine
whether to terminate an EMSA.
Section 106.704
Termination Under Section 52.3-4(b) of the Act
a)
To terminate an EMSA under Section 52.3-4(b) of the Act, the Agency must determine that the
sponsor’s performance under the EMSA has failed to:
1)
Achieve emissions reductions or reductions in discharges of wastes beyond the otherwise
applicable statutory and regulatory requirements through pollution prevention or other
suitable means; or
2)
Achieve real environmental risk reduction or foster environmental compliance by other persons
regulated under theis Act in a manner that is clearly superior to the existing regulatory
system.
[415 ILCS 5/52.3-1(b)]
b)
If the Agency terminates an EMSA under Section 52.3-4(b) of the Act, the sponsor may file an
appeal with the Board. Appeals to the Board will be pursuant to 35 Ill. Adm. Code 105. Subparts
A and B.
Section 106.706
Who May Initiate, Parties
119
a)
Only the Agency may commence a proceeding to terminate an EMSA under this Subpart.
b)
The Agency must be designated the complainant. The sponsor must be designated the respondent.
c)
Misnomer of a party is not a ground for a dismissal; the name of any party may be corrected at any
time.
Section 106.707
Notice, Statement of Deficiency, Answer
a)
A proceeding to terminate an EMSA will be commenced when the Agency serves a notice of filing
and a statement of deficiency upon the respondent and files 1 original plus 9 copies of the notice of
filing and statement of deficiency with the Clerk.
b)
The statement of deficiency must contain:
1)
The stated basis for the respondent’s alleged deficient performance under Section
106.7612(a) of this Subpart;
2)
The dates, location, nature, extent and duration of any act or omission, and amount and
other characteristics of any discharges or emissions, alleged to violate provisions of the
Act or regulations that apply to the pilot project that the EMSA does not address;
3)
The dates, location, nature, extent and duration of any act or omission, and amount and
other characteristics of any discharges or emissions, alleged to violate the EMSA; and
4)
With respect to subsections (b)(1) through (b)(3) of this Section, the statement of
deficiency must contain sufficient detail to advise the respondent of the extent and nature
of the alleged violations to reasonably allow the respondent to prepare a defense.
c)
The respondent must file an answer within 15 days after receipt of the statement of deficiency,
unless the Board or the hearing officer extends the 15-day period for good cause. All material
allegations of the statement of deficiency will be taken as admitted if not specifically denied by the
answer, or if no answer is filed. Any facts that constitute an affirmative defense that would be
likely to surprise the complainant must be plainly set forth in the answer before hearing.
Section 106.708
Service
a)
The Agency must serve a copy of the notice of filing and statement of deficiency either personally
on the respondent or the respondent’s authorized agent, or by registered or certified mail with
return receipt signed by the respondent or the respondent’s authorized agent. Proof must be made
by affidavit of the person who makes personal service, or by properly executed registered or
certified mail receipt. The Agency must file proof of service of the notice of filing and statement of
deficiency with the Clerk immediately upon completion of service.
b)
The Agency and the respondent must serve all motions and all other notices personally, by First
Class United States mail, with sufficient postage, or by overnight delivery by a nationally
recognized courier service. The Agency and the respondent must file an original and 9 copies of
the motions and notices with the Clerk with proof of service.
c)
Service is presumed complete upon personal service, four days after deposit in the United States
First Class mail, with sufficient postage, or the next business day upon deposit with a nationally
recognized courier service for overnight delivery.
Section 106.710
Notice of Hearing
120
a)
The Clerk will assign a docket number to each statement of deficiency filed. Any hearing will be
held not later than 60 days after the respondent files the answer, subject to any extensions ordered
under subsection (c) of this Section.
b)
The Chairman of the Board will designate a hearing officer and the Clerk will notify the parties of
the designation. The hearing officer may be a Member of the Board if otherwise qualified.
c)
The hearing officer, after reasonable efforts to consult with the parties, will set a time and place for
hearing. The Board or the hearing officer may extend the time for hearing if all parties agree or
there are extreme and unanticipated or uncontrollable circumstances that warrant a delay. The
Board or the hearing officer may delay the hearing more than once. In each event, the Board or
the hearing officer will not delay the hearing for more than 30 days.
d)
The hearing will be held in the county in which the pilot project is located, or in another county
that the hearing officer designates for cause.
e)
The hearing officer or the Clerk will give notice of the hearing, at least 30 days before the hearing,
to the parties under Section 106.708(b) of this Subpart, and to the public by public advertisement in
a newspaper of general circulation in the county in which the pilot project is located.
f)
The Agency must give notice of each statement of deficiency and hearing under Section
106.708(b) of this Part at least 10 days before the hearing to:
1)
All stakeholders named or listed in the EMSA; and
2)
Any person who submitted written comments on the respondent’s EMSA or participated
in the public hearing on the respondent’s EMSA by signing an attendance sheet or
signature card under the procedures set forth in 35 Ill. Adm. Code 187.404, if less than
100 persons attended the public hearing on the respondent’s EMSA as indicated by
signatures on the attendance sheet or signature cards.
g)
Failure to comply with this Section is not a defense to an involuntary termination proceeding
under this Subpart, but the hearing officer may postpone the hearing upon the motion of any
person prejudiced by a failure to comply with this Section.
Section 106.712
Deficient Performance
a)
For purposes of this Subpart, a respondent’s performance under its EMSA is deficient if the Agency
asserts and the Board finds that any of the following conditions exist:
1)
The respondent misrepresented the factual basis for entering into the EMSA.
2)
The respondent failed to provide access to the pilot project for the Agency to monitor
compliance with an EMSA.
3)
The respondent falsified any monitoring data, record-keeping information or reports
regarding the pilot project.
4)
The respondent or the owner or operator of the pilot project failed to comply with any
requirement of any federal or local environmental law or regulation that applies to the
pilot project and that the EMSA does not address, and for which a citizen’s complaint has
been filed with a court of competent jurisdiction or the appropriate authority has sent a
notice of violation, complaint or other notice of failure to comply to the respondent or the
121
owner or operator of the pilot project.
5)
The respondent or the owner or operator of the pilot project failed to comply with any
requirement of any State environmental law or regulation that applies to the pilot project
and that the EMSA does not address, and for which a citizen’s complaint has been filed
with the Board, or the Agency has mailed a notice of violation to the respondent or the
owner or operator of the pilot project under Section 31(a) or (b) of the Act.
6)
The respondent failed to comply with its EMSA, subject to any grace or cure periods or
rights contained in the EMSA.
b)
Any Board finding of deficient performance under subsection (a)(4) or (a)(5) of this Section will not
be binding for any purpose or in any other proceeding under the Act, other than under this
Subpart.
Section 106.714
Board Decision
a)
The Board will prepare a written opinion and order for all final determinations that will include
findings of fact (with specific page references to principal supporting items of evidence in the
record) and conclusions of law (supported by adequate reasoning) on all material issues.
b)
The Board will render its decision as expeditiously as practicable. The Board will render a decision
as an order that:
1)
Terminates the EMSA;
2)
Defers termination for a specified time, not to exceed 90 days from the date of the order,
during which the respondent may rectify the deficient performance; or
3)
Rejects termination of the EMSA.
c)
The Board may extend the time period under subsection (b)(2) of this Section for good cause.
d)
The Board may order any or all of the following:
1)
Direct the respondent to cease and desist from violating the Act, the Board’s regulations,
or the EMSA;
2)
Require the respondent to provide performance assurance compensation in appropriate
amounts;
3)
Require the respondent to post a sufficient performance bond or other security to assure
that the respondent corrects the violation within the time that the Board prescribes;
4)
Enforce any remedy provision of the EMSA; and
5)
Order other relief as appropriate.
e)
The Clerk will publish the order and opinion with the vote of each Board Member recorded and
will notify the parties required to be notified of the hearing from which the order arose of the order
and opinion.
Section 106.716
Burden of Proof
122
The Agency has the burden to prove, by a preponderance of the evidence, that there has been deficient performance
under the EMSA, as set forth in Section 106.712(a) of this Subpart.
Section 106.718
Motions, Responses
a)
All motions before a hearing must be presented to the hearing officer at least 10 days before the
date of the hearing.
b)
The complainant’s motion to voluntarily dismiss an action as to any or all claims must be directed
to the Board and may be made orally upon the hearing record, or may be made in writing at any
time before the Board issues its decision.
c)
All motions must be served on all parties, including the Agency and its representative and the
hearing officer, with proof of service.
d)
Unless made orally on the record during a hearing or unless the hearing officer directs otherwise, a
motion must be in writing, must state the reasons for and grounds upon which the motion is made,
and may be accompanied by any affidavits or other evidence relied on and, when appropriate, by
a proposed order.
e)
Within 7 days after a written motion is served, or another period that the Board or hearing officer
may prescribe, a party may file a response to the motion, accompanied by affidavits or other
evidence. If no response is filed, the parties will be deemed to have waived objection to the motion,
but the waiver of objection does not bind the Board. The moving party does not have the right to
reply, except as the hearing officer or the Board permits.
f)
No oral argument will be heard on a motion before the Board unless the Board directs otherwise.
A written brief may be filed with a motion or an answer to a motion.
g)
The hearing officer may rule upon all motions, except that the hearing officer has no authority to
dismiss, or rule upon a motion to dismiss or decide a proceeding on the merits, or for failure to
state a claim, or for want of jurisdiction, or to strike any claim or defense for insufficiency or want
of proof.
h)
No interlocutory appeal of a motion may be taken to the Board from a ruling of the hearing officer.
i)
After the hearing, the Board may review the hearing officer’s rulings. The Board will set aside the
hearing officer’s ruling only to avoid material prejudice to the rights of a party. The hearing
officer, if a member of the Board, may vote upon motions to review his or her rulings as hearing
officer.
j)
Unless the Board orders or this Subpart provides otherwise, the filing of a motion will not stay the
proceeding or extend the time to perform any act.
Section 106.720
Intervention
a)
Upon timely written motion and subject to the need to conduct an orderly and expeditious
hearing, the Board will permit a person to intervene in an involuntary termination proceeding
under this Subpart if the person submitted written comments on the respondent’s EMSA or
participated in the public hearing on the respondent’s EMSA by signing an attendance sheet or
signature card at hearing under the procedures set forth in 35 Ill. Adm. Code 187.404, or is named
or listed in the respondent’s EMSA as a stakeholder, and if the Board’s final order may adversely
affect the person.
123
b)
The movant must file an original and 9 copies of a motion to intervene with the Board and serve a
copy on each party not later than 48 hours before the hearing. The Board may permit a person to
intervene at any time before the beginning of the hearing when that person shows good cause for
the delay.
c)
An intervenor has all the rights of an original party, except that the Board may limit the rights of
the intervenor in accordance with 35 Ill. Adm. Code 101.402.
Section 106.722
Continuances
The hearing officer will grant a motion to continue an involuntary termination proceeding under this Subpart when
justice requires. All motions to continue must be supported by an affidavit or written motion before the hearing
officer by the person or persons with knowledge of the facts that support the motion. However, if the Board
determines that any involuntary termination proceeding under this Subpart is not proceeding expeditiously, the
Board may order actions that it deems appropriate to expedite the proceeding.
Section 106.724
Discovery, Admissions
a)
Discovery, except requests to produce documents, admit facts and state the identity and location of
persons with knowledge of facts, as set forth in subsection (b) of this Section, is not permitted
unless the hearing officer orders otherwise.
b)
Regarding any matter not privileged, the hearing officer may order a party to produce documents
and to state the identity and location of persons with knowledge of facts upon the written request
of any party when parties cannot agree on the legitimate scope of the requests. It is not a ground
for objection that the documents will be inadmissible at hearing if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence or is relevant to the subject
matter involved in the pending proceeding.
c)
The hearing officer may order a party:
1)
To state the identity and location of persons with knowledge of relevant facts.
2)
To produce evidence that a party controls or possesses so that it may be inspected, copied
or duplicated. The order may grant the right to reasonably inspect the pilot project.
d)
The hearing officer may at any time on his or her own initiative, or on motion of any party or
witness, make a protective order as justice requires. The protective order may deny, limit,
condition or regulate discovery to prevent unreasonable delay, expense, harassment, or oppression,
or to protect non-disclosable materials from disclosure consistent with Sections 7 and 7.1 of the Act
and 35 Ill. Adm. Code 130.
e)
All objections to rulings of the hearing officer must be made in the record.
f)
Sections 106.718(d), (e), (f), (g), (h), (i) and (j) of this Subpart apply regarding procedures to rule on
objections.
g)
Failure to comply with any ruling maywill subject the person to sanctions under 35 Ill. Adm. Code
101.,Subpart H.
h)
A party may serve on any other party, no sooner than 15 days after the Agency files the statement
of deficiency, a written request that the latter admit the truth of any specified relevant fact set forth
in the request.
124
i)
A party may serve on any other party, no sooner than 15 days after the Agency files the statement
of deficiency, a written request to admit to the genuineness of any relevant documents described in
the request. Copies of the document must be served with the request unless copies have already
been furnished.
j)
Each of the matters of fact and the genuineness of each document of which admission is requested
is admitted unless, within 15 days after service under subsection (h) or (i) of this Section, the party
to whom the request is directed serves upon the party requesting the admission either a sworn
statement that denies specifically the matters on which the admission is requested or that sets forth
in detail the reasons why the party cannot truthfully admit or deny those matters or written
objections on the ground that some or all of the requested admissions are privileged or irrelevant or
that the request is otherwise improper in whole or in part. If a party objects in writing to a part of
the request, the remainder of the request must be answered within the period designated in the
request. A denial must fairly meet the substance of the requested admission. If good faith requires
that a party deny only a part, or requires qualification, of a matter of which an admission is
requested, the party must specify so much of it as is true and deny only the remainder. The
hearing officer will hear any objection to a request or to an answer upon prompt notice and
motion of the party making the request.
k)
Any admission made under this Section is for the purpose of the pending proceeding only. It does
not constitute an admission by the party for any other purpose and may not be used against the
party in any other proceeding.
l) If a party, after being served with a request to admit the genuineness of any documents or the
truth of any matters of fact, serves a sworn denial in response to the request, and if the party
requesting the admissions later proves the genuineness of the document or the truth of the matter
of fact, the latter party may apply to the Board for an order under 35 Ill. Adm. Code 101.Subpart
H for payment of reasonable expenses incurred.
Section 106.726
Subpoenas
a)
Upon any party’s timely motion to the Board, or on motion of the hearing officer or the Board, the
hearing officer or the Board may issue a subpoena to attend a hearing. The subpoena may include
a command to produce evidence reasonably necessary to resolve the matter under consideration,
subject to this Subpart’s limitations on discovery. A copy of the subpoena must be served upon the
Clerk. If the witness, other than a respondent or owner or operator of a pilot project, is a
non-resident of the State, the order may provide terms and conditions regarding his or her
appearance at the hearing that are just, including payment of his or her reasonable expenses.
b)
Every subpoena must state the title of the proceeding and command each person to whom it is
directed to attend and give testimony at the time and place specified.
c)
The hearing officer or the Board, upon motion made promptly and in any event at or before the
time specified for compliance with the subpoena, may quash or modify the subpoena if it is
unreasonable and oppressive.
d)
Failure of any witness to comply with a Board subpoena maywill subject the witness to sanctions
under 35 Ill. Adm. Code 101.Subpart H.
Section 106.728
Settlement Procedure
a)
All parties to any proceeding in which a settlement or compromise is proposed must file with the
Clerk before the time of the scheduled hearing a written statement, signed by the parties or their
authorized representatives, that outlines the nature of, the reasons for, and the purpose to be
125
accomplished by, the settlement. The statement must contain:
1)
A full stipulation of all material facts that pertain to the nature, extent and causes of the
alleged violations;
2)
The nature of the relevant parties’ operations and control equipment;
3)
Any explanation for past failures to comply and an assessment of the impact on the
public from the failure to comply;
4)
Details about future plans for compliance, including a description of additional control
measures and the dates on which they will be implemented; and
5)
The proposed performance assurance payment, if any.
b)
If an agreed settlement is filed under this Section, the Board may dismiss the proceeding without
holding a hearing.
Section 106.730
Authority of Hearing Officer, Board Members, and Board Assistants
a)
The hearing officer has the duty to conduct a fair hearing, to take all necessary action to avoid
delay, to maintain order, and to ensure development of a clear and complete record. The hearing
officer has all powers necessary to these ends, including the authority to:
1)
Issue discovery orders;
2)
Rule upon objections to discovery orders;
3)
Make protective orders as justice requires, which may deny, limit, condition or regulate
discovery to prevent unreasonable delay, expense, harassment, or oppression, or to
protect materials from disclosure by the party who obtains the materials;
4)
Administer oaths and affirmations;
5)
Rule upon offers of proof, receive evidence and rule upon objections to introducing
evidence, subject to Section 106.732(b) of this Subpart;
6)
Regulate the course of the hearings and the conduct of the parties and their counsel;
7)
Examine witnesses solely to clarify the record of the hearing. When any party is not
represented by counsel, the hearing officer may examine and cross-examine any witness
to insure a clear and complete record. However, the hearing officer may not exclude
exhibits or other testimony because of the examination unless all parties agree; and
8)
Except as otherwise provided, consider and rule as justice may require upon motions
appropriate to an adjudicative proceeding.
b)
Any Board Member or assistant to a Board Member present at the hearing may advise the hearing
officer and may interrogate witnesses, but does not have the authority to rule on objections or
motions or to overrule the hearing officer during the hearing.
Section 106.732
Order and Conduct of Hearing
a)
The following will be the order of all involuntary termination hearings under this Subpart, unless
126
modified by the hearing officer for good cause:
1)
Present, argue and dispose of preliminary motions on the matters that the statement of
deficiency raises;
2)
Present opening statements;
3)
Complainant’s case in chief;
4)
Respondent’s case in chief;
5)
Complainant’s case in rebuttal;
6)
Statements from interested citizens, as the hearing officer authorizes;
7)
Complainant’s opening argument, which may include legal argument;
8)
Respondent’s closing argument, which may include legal argument;
9)
Complainant’s closing argument, which may include legal argument;
10)
Present and argue all motions before submitting the transcript to the Board; and
11)
A schedule to submit briefs to the Board.
b)
All hearings under this Subpart will be public, and any person not a party and not otherwise a
witness for a party may submit written statements relevant to the subject matter of the hearing.
Any party may cross-examine any person who submits a statement. If the person is not available
to be cross-examined upon timely request, the written statement may be stricken from the record.
The hearing officer will permit any person to offer reasonable oral testimony whether or not a
party to the proceedings.
c)
All witnesses will be sworn.
d)
At the conclusion of the hearing, the hearing officer will make a statement about the credibility of
witnesses. This statement will be based upon the hearing officer’s legal judgment and experience
and will indicate whether he or she finds credibility to be at issue in the proceeding and if so, the
reasons why. This statement will become a part of the official record and will be transmitted by
the hearing officer to each of the parties. No other statement will be made or be appropriate unless
the Board orders otherwise.
Section 106.734
Evidentiary Matters
The provisions of 35 Ill. Adm. Code 101 regarding admissible evidence, written narrative testimony, official notice,
viewing premises, admitting business records, examining adverse parties or agents and hostile witnesses and
compelling them to appear at hearing, and amendment and variance of pleadings and proof will apply to
proceedings under this Subpart.
Section 106.736
Post-Hearing Procedures
The provisions of 35 Ill. Adm. Code 101 regarding default, transcripts, the record, briefs and oral arguments will
apply to proceedings under this Subpart.
Section 106.738
Motion After Entry of Final Order
127
Within 35 days after the Board adopts a final order, any party may file a motion to rehear, modify or vacate the
order or for other relief. Response to the motion must be filed within 14 days after the motion is filed. A motion filed
within 35 days stays enforcement of the final order.
Section 106.740
Relief from Final Orders
a)
The Board may at any time correct errors in orders or other parts of the record that arise from
oversight or omission or clerical mistakes. The Board may do so on its own initiative or on the
motion of any party and after notice, if any, as the Board orders. During the pendency of an
appeal, the Board may correct the mistakes before the appeal is docketed in the appellate court.
While the appeal is pending, the Board may correct the mistakes with leave of the appellate court.
b)
On motion and upon terms that are just, the Board may relieve a party or a party’s legal
representative from a final order, for the following:
1)
Newly discovered evidence that by due diligence could not have been discovered in time
under Section 106.714 of this Subpart;
2)
Fraud (whether previously denominated intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; or
3)
Void order.
c)
A motion under this Section does not affect the finality of a Board order or suspend the operation
of a Board order. The motion must be filed in the same proceeding in which the Board entered the
order but the motion is not a continuation of the proceeding. The motion must be supported by
affidavit or other appropriate showing as to matters not of record. All parties must be notified
under Section 106.708(b) of this Subpart.
d)
This motion must be filed with the Board within 60 days after entry of the order.
128
APPENDIX A Comparison of Former and Current Rules
The following appendix compares the former procedural rules (in effect on December 31, 2000) with the current
procedural rules (effective January 1, 2001).
FORMER PART 106
CURRENT SECTION
106.101
106.200
106.102
106.202
106.103
106.200
106.104
106.208
106.201
106.202
106.202
101.602
106.200
106.210
106.301
106.202
106.204
106.302
106.202
106.303
106.200
106.304
106.208
106.305
101.602
106.200
106.210
106.411
104.402
106.412
104.404
106.413
104.406
106.414
104.416
106.415
104.422
104.424
106.416
104.428
106.501
104.400
106.502
104.402
106.503
104.404
106.504
104.406
106.505
104.416
106.506
104.422
104.424
106.507
104.428
106.601
106.300
106.602
106.302
106.304
106.603
106.306
106.604
106.308
106.701
104.400
106.702
104.104
106.703
104.402
106.704
104.404
106.705
104.406
106.708
106.100
106.306
106.709
106.100
101.Subpart E
129
106.710
106.100
101.304
106.711
104.408
106.712
104.410
106.713
104.420
106.714
104.416
106.715
104.418
106.801
104.422
106.802
104.424
106.803
104.400
106.804
101.616
104.100
106.805
101.626
104.100
104.400
106.807
104.400
106.808
104.426
106.902
104.414
106.903
104.426
104.428
106.904
104.428
106.906
104.428
106.907
104.412
106.910
106.400
106.911
104.104
106.912
106.400
106.404
106.406
106.913
106.408
106.914
106.410
106.412
106.915
106.414
106.916
106.416
106.920
106.500
106.921
106.502
106.922
106.504
106.506
106.923
106.508
106.924
106.510
106.512
106.925
106.514
106.930
106.600
106.931
106.600
106.602
106.604
106.932
106.606
106.933
106.608
106.610
106.940
106.700
106.702
106.942
101.202
130
106.944
106.102
106.945
106.704
106.946
106.706
106.948
106.707
106.950
106.708
106.952
106.710
106.954
106.712
106.956
106.714
106.958
106.716
106.960
106.718
106.962
106.720
106.964
106.722
106.966
106.724
106.968
106.726
106.970
106.728
106.972
106.730
106.974
106.732
106.976
106.734
106.978
106.736
106.980
106.738
106.982
106.740
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE A: GENERAL PROVISIONS
CHAPTER 1: POLLUTION CONTROL BOARD
PART 107
PETITION TO REVIEW POLLUTION CONTROL FACILITY SITING DECISIONS
SUBPART A: GENERAL PROVISIONS
Section
107.100
Applicability
107.102
Severability
107.104
Definitions
107.106
Description
SUBPART B: PETITION FOR REVIEW
Section
107.200
Who May File Petition
107.202
Parties
107.204
Time For Filing Petition
107.206
Filing and Service Requirements
107.208
Petition Content Requirements
SUBPART C: FILING OF LOCAL RECORD
Section
107.300
Record
107.302
Filing of the Record
107.304
Record Contents
131
107.306
Preparing of the Record
107.308
Certification of Record
SUBPART D: HEARING
Section
107.400
General
107.402
Authority and Duties of Hearing Officer
107.404
Public Participation
SUBPART E: BOARD REVIEW AND DECISION
Section
107.500
Preliminary Board Determination/Set for Hearing
107.502
Dismissal of Petition
107.504
Decision Deadline
107.506
Burden of Proof/Standard of Review
APPENDIX A Comparison of Former and Current Rules
AUTHORITY: Authorized by Sections 26 and 27 of the Environmental Protection Act (Act) [415 ILCS 5/26 and 27]
and iImplementing Sections 39.2, and 40.1 of the Act [415 ILCS 5/39.2 and 40.1].
SOURCE: Filed with Secretary of State January 1, 1978; amended at 4 Ill. Reg. 2, p. 186, effective December 27,
1979; codified at 6 Ill. Reg. 8357; amended in R85-22 at 10 Ill. Reg. 992, effective February 2, 1986; amended in R86-
46 at 11 Ill. Reg. 13457, effective August 4, 1987; amended in R82-1 at 12 Ill. Reg. 12484, effective July 13, 1988;
amended in R88-10 at 12 Ill. Reg. 12817, effective July 21, 1988; amended in R88-5(A) at 13 Ill. Reg. 12094, effective
July 10, 1989; amended in R88-5(B) at 14 Ill. Reg. 9442, effective June 5, 1990; amended in R93-24 at 18 Ill. Reg. 4230,
effective March 8, 1994; amended in R93-30 at 18 Ill. Reg. 11579, effective July 11, 1994; amended in R99-9 at 23 Ill.
Reg. 2697, effective February 16, 1999; old part repealed, new Part adopted in R00-20 at 24 Ill. Reg. ,
effective .
SUBPART A: GENERAL PROVISIONS
Section 107.100
Applicability
a)
This Part applies to adjudicatory proceedings before the Board concerning petitions to review a
pollution control facility siting decision made by local government pursuant to Sections 39.2 and
40.1 of the Act.
b)
This Part must be read in conjunction with 35 Ill. Adm. Code 101, which contains procedures
generally applicable to all of the Board’s adjudicatory proceedings. In the event of a conflict
between the requirements of 35 Ill. Adm. Code 101 and those of this Part, the provisions of this
Part apply.
Section 107.102
Severability
If any provision of this Part or its application to any person is adjudged invalid, thesuch adjudication does not affect
the validity of this Part as a whole or of any portion not adjudged invalid.
Section 107.104
Definitions
For purposes of this Part, words and terms will have the meanings as defined in 35 Ill. Adm. Code 101.Subpart B
unless otherwise provided, or unless the context clearly indicates otherwise.
132
Section 107.106
Description
Pursuant to Section 39(c) of the Act, any new pollution control facility, prior to receiving a permit from the Agency
to construct and operate, must first receive siting approval from the C
ounty Board of the county if in an
unincorporated area, or the governing body of the municipality when in an incorporated area, in which the facility is to be
located.
[415 ILCS 5/39(c)]. TheSuch siting approval can only be given pursuant to Section 39.2 of the Act and only
after the local unit of local government conducts a public hearing that comports with the requirements of Section
39.2(d) and with general standards of fundamental fairness. Pursuant to Section 40.1 of the Act, a decision of a unit
of local government to site or deny siting of a new pollution control facility is reviewable by the Board. The decision
of the Board is appealable to the Illinois appellate court.
SUBPART B: PETITION FOR REVIEW
Section 107.200
Who May File Petition
The following persons may file a petition for review of a decision concerning siting of a new pollution control facility
pursuant to Section 40.1 of the Act:
a)
Siting applicants. Any person who has properly applied to one or more units of local government,
pursuant to Section 39.2 of the Act, for siting approval of a new pollution control facility and has
been denied siting approval under Section 39.2 of the Act, may file a petition for review of the
decision to deny siting. The siting applicant may also appeal conditions imposed in a decision
granting siting approval.
b)
Other persons. Any person who has participated in the public hearing conducted by the unit of
local government and is so located as to be affected by the proposed facility may file a petition for
review of the decision to grant siting. Associations that file a petition before the Board must be
represented by an attorney in accordance with 35 Ill. Adm. Code 101.400.
Section 107.202
Parties
a)
In a petition to review a local government’s decision concerning a new pollution control facility,
the following are parties to the proceeding:
1)
The petitioner or petitioners are the persons described in Section 107.200 of this Part. If
there is more than one petitioner, they must be referred to as co-petitioners; and
2)
The unit(s) of local government whose decision is being reviewed must be named the
respondent(s). In an appeal pursuant to Section 107.200(b), the siting applicant must also
be named as a respondent.
b)
Where the interests of the public would be served, the Board or hearing officer
may allow
intervention by the Attorney General or the State’s Attorney of the county in which the facility will
be located.
Section 107.204
Time fFor Filing Petition
A petition for review must be filed within 35 days after the local siting authority’s action to approve or disapprove
siting. Action means the local government’s official written decision granting or denying local siting approval.
Pursuant to Section 39.2(e) of the Act, action includes failure of the governing body to act within 180 days after
receiving a request for siting approval.
Section 107.206
Filing and Service Requirements
133
a)
Filing. The petition for review must be filed with the Clerk of the Board in accordance with the
filing requirements contained in the Board’s general procedural rules, found at 35 Ill. Adm. Code
101.Subpart C and Section 107.208 of this Part.
b)
Service. The petition for review must be served upon all parties in accordance with the Board’s
service requirements contained in the Board’s general procedural rules, found at 35 Ill. Adm. Code
101.Subpart C.
Section 107.208
Petition Content Requirements
In addition to the requirements of 35 Ill. Adm. Code 101.Subpart C the petition must also include:
a)
A copy of the local siting authority's written decision or ordinance;
b)
A statement as to how the filing party is a proper petitioner under Section 107.200 of this Part; and
c)
In accordance with Section 39.2 of the Act, a specification of the grounds for the appeal, including
any allegations for fundamental unfairness or any manner in which the decision as to particular
criteria is against the manifest weight of the evidence.
SUBPART C: FILING OF LOCAL RECORD
Section 107.300
Record
Pursuant to Sections 39.2 and 40.1 of the Act, the siting authority must compile a complete record of its proceedings.
Section 107.302
Filing of the Record
The siting authority must file the record of its proceedings with the Board as directed by Board or hearing officer
order. Failure to file the entire record on the date directed by the Board or hearing officer may subject the
respondent to sanctions as may be ordered by the Board in accordance with 35 Ill. Adm. Code 101.Subpart H.
Section 107.304
Record Contents
a)
The record must contain all information or evidence presented to the local siting authority or relied
upon by the local siting authority during its hearing process including:
1)
The siting application;
2)
Any and all transcripts of local hearings;
3)
All briefs and other arguments and statements of parties and participants;
4)
All exhibits relied upon by the local siting authority in making its decision;
5)
All written public comments relevant to the local government proceeding;
6)
Minutes of all relevant open meetings of the siting authority;
7)
Notices of hearings or all relevant meetings of the siting authority;
8)
The written decision of the siting authority made pursuant to Section 39.2 of the Act;;
134
9)
Certificate of Record as described in Section 107.308 of this Part; and
10)
If, prior to making a final local siting decision, a county board or governing body of a
municipality has negotiated and entered into a host agreement with the local siting applicant,
the terms and conditions of the host agreement, whether written or oral, shall be disclosed and
made a part of the hearing record for that local siting proceeding. In the case of an oral
agreement, the disclosure shall be made in the form of a written summary jointly prepared and
submitted by the county board or governing body of the municipality and the siting applicant
and shall describe the terms and conditions of the oral agreement.
[415 ILCS 5/39.2(e)]
b)
The record must contain the originals or legible copies of all documents, must be arranged in
chronological sequence, and must be sequentially numbered, placing the letter “C” before the
number of each page.
c)
Seven copies of the transcript and 1 original and 9 copies of all other documents in the record must
be filed with the Board.
Section 107.306
Preparing of the Record
Unless petitioner is a citizen or citizen’s group, the petitioner must pay the costs of preparing and certifying the
record to the Board. If the petitioner is a citizen or citizen’s group,
such petitioner shall be exempt from paying the costs
of preparing and certifying the record.
[415 ILCS 5/39.2(n)].
Section 107.308
Certification of Record
The record filed with the Board must be certified by the county clerk, if the siting authority is a county, or the
municipal clerk, if the siting authority is a municipality. The certification must be entitled “Certificate of Record on
Appeal.” The Certificate must contain an index that lists the documents comprising the record and shows the page
number upon which they start and end. The Certificate of Record must be served on all parties.
SUBPART D: HEARING
Section 107.400
General
Hearings and discovery will be conducted in accordance with the provisions set forth in the Board’s general
procedural rules found at 35 Ill. Adm. Code 101.Subpart F.
Section 107.402
Authority and Duties of Hearing Officer
The authority and duties of the hearing officer are set forth in the Board's general procedural rules found at 35 Ill.
Adm. Code 101.Subpart F.
Section 107.404
Public Participation
Parties to the proceeding will have all rights of examination and cross-examination relevant in any judicial
proceeding. Persons who are not parties as set forth in Section 107.202 of this Part are considered participants and
will have such hearing participation rights as determined by the hearing officer in accordance with 35 Ill. Adm.
Code 101.628. Participants may offer comment at a specifically determined time in the proceeding, but may not
examine or cross-examine witnesses for either party. In accordance with this Section and 35 Ill. Adm. Code
101.628, public comment will not be considered testimony unless sworn and subject to cross-examination.
SUBPART E: BOARD REVIEW AND DECISION
Section 107.500
Preliminary Board Determination/Set for Hearing
135
Upon proper filing of the petition, the Board will set the matter for hearing unless it determines that the matter is
frivolous or duplicitous as required by Section 40.1(b) of the Act.
Section 107.502
Dismissal of Petition
a)
The Board on its own motion or motion by any party, may dismiss any petition:
1)
Which is untimely filed pursuant to Section 107.204 of this Part;
2)
Which fails to name all parties as required by Section 39.2 of the Act;
3)
Which fails to include the required fee and all information as required by Section 107.2086
of this Part; or
4)
Which fails to meet the requirements in 35 Ill. Adm. Code 101.Subpart C.
b)
Upon motion by any unit of local government that is required to prepare and certify its record
alleging that any petitioner required to pay costs of preparing and certifying the record of the
proceedings has failed to pay thosesaid costs, the Board may enter a dismissal or other order as
allowed by Section 39.2(n) of the Act.
Section 107.504
Decision Deadline
In accordance with Section 40.1 of the Act only the applicant for siting may waive the decision deadline. Unless the
applicant for siting waives the decision deadline in accordance with 35 Ill. Adm. Code 101.308 of the Board’s general
procedural rules, the Board will issue its decision within 120 days after the proper filing and service of a petition for
review.
Section 107.506
Burden of Proof/Standard of Review
a)
The petitioner bears the burden of proof in accordance with Section 40.1(a) of the Act.
b) The Board may reverse the siting decision of the local siting authority only:
1) If the decision is against the manifest weight of the evidence presented in the local siting
authority’s record;
2) If the proceeding of the local siting authority did not comport with general standards of
fundamental fairness; or
3) If the local siting authority did not have jurisdiction.
c) Where the Board determines that the hearing of the local siting authority did not comport with
general standards of fundamental fairness it may, in its discretion, remand the decision to the
siting authority as an alternative to reversal. Any Board order allowing for such remand will
clearly set forth the reasons for the remand order and set a time frame for the local siting authority
to cure the defect upon remand.
136
APPENDIX A Comparison of Former and Current Rules
The following appendix compares the former procedural rules (in effect on December 31, 2000) with the current
procedural rules (effective January 1, 2001).
FORMER PART 107
CURRENT SECTION
107.100
105.500
107.101
105.102
107.102
105.502
107.103
105.104
107.120
105.504(a)
107.121
105.504(b)
107.122
105.506
107.123
105.504(c)
107.124
105.508
107.Subpart C
105.108
107.Subpart D
105.510
107.Subpart E
105.100(b)
101.Subpart F
107.Subpart F
105.100(b)
101.Subpart F
107.Subpart G
105.100
101.Subpart E
107.Subpart H
105.100
101.Subpart F
107.Subpart I
105.100
101.Subpart F
107.Subpart K
105.100
101.Subpart F
107.320
105.100
101.Subpart H
107.Subpart M
105.100
101.Subpart I
107.Subpart N
105.100
101.Subpart I
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE A: GENERAL PROVISIONS
CHAPTER I: POLLUTION CONTROL BOARD
PART 108
ADMINISTRATIVE CITATIONS
SUBPART A: GENERAL PROVISIONS
Section
108.100
Applicability
108.102
Severability
108.104
Definitions
SUBPART B: ISSUANCE OF THE CITATION AND PETITION TO CONTEST
137
Section
108.200
Administrative Citation Issuance
108.202
Service of Citation/Filing of Citation with the Board
108.204
Filing Requirements for Petition to Contest
108.206
Petition Contents
108.208
AC Recipient’s Voluntary Withdrawal
SUBPART C: HEARINGS
Section
108.300
Authorization of Hearing
SUBPART D: BOARD DECISIONS
Section
108.400
Standard of Review/Burden of Proof
108.402
Dismissal
108.404
Default
108.406
Non-Contested Citations
SUBPART E: ASSESSMENT OF PENALTIES AND COSTS
Section
108.500
Assessment ofPenalties and Costs
108.502
Claimed Costs of Agency or Delegated Unit
108.504
Board Costs
108.506
Response to Claimed Costs and Reply
AUTHORITY: Authorized by Sections 26 and 27 of the Environmental Protection Act (Act) [415 ILCS 5/26 and 27]
and implementing Sections 21(o), 21(p), 31.1, and 42(b)(4) of the Act.[415 ILCS 5/21(o), 21(p), 31.1, and 42(b)(4)]
SOURCE: Adopted in R00-20 at Ill. Reg. _______________, effective __________________.
SUBPART A: GENERAL PROVISIONS
Section 108.100
Applicability
a)
This Part applies to proceedings before the Board concerning petitions to contest the issuance of an
administrative citation pursuant to Section 31.1 of the Act.
b)
This Part must be read in conjunction with 35 Ill. Adm. Code 101 which contains procedures
generally applicable to all of the Board’s adjudicatory proceedings. In the event of a conflict
between the requirements of 35 Ill. Adm. Code 101 and this Part, the provisions of this Part will
apply.
Section 108.102
Severability
If any provision of this Part or its application to any person is adjudged invalid, thesuch adjudication will not affect
the validity of this Part as a whole or of any portion not adjudged invalid.
Section 108.104 Definitions
For the purpose of this Part, words and terms will have the meaning as defined in 35 Ill. Adm. Code 101.Subpart B
unless otherwise provided, or unless the context clearly indicates otherwise.
138
SUBPART B: ISSUANCE OF THE CITATION AND PETITION TO CONTEST
Section 108.200 Administrative Citation Issuance
An administrative citation (AC) may be issued by either of the following:
a)
Illinois Environmental Protection Agency (Agency). The Agency may issue an AC pursuant to
Section 31.1 of the Act.
b)
Delegated Unit of Local Government (Delegated Unit). Pursuant to Section 4(r) of the Act, the
Agency may by agreement delegate its AC authority to a unit of local government which may then
issue an AC. All Delegated Units must submit to the Clerk of the Board a copy of the delegation
agreement annuallyon or before July 1 of every year.
Section 108.202
Service of Citation/Filing of Citation with the Board
a)
In accordance with Section 31.1 of the Act, the Agency or Delegated Unit may serve an AC upon
any person (AC Recipient) believed, through direct observation, to have violated subsections (o) or
(p) of Section 21 of the Act.
b)
TheSuch AC must be issued and served upon the AC Recipient not more than 60 days after the
date of the observed violation and must contain the following information:
1)
A statement specifying the provisions of subsection (o) or (p) of Section 21 of the Act that
the AC Recipient was observed to have violated;be in violation;
2)
A copy of the inspection report in which the Agency or Delegated Unit recorded the
violation, which report must include the date and time of inspection, and weather
conditions prevailing during the inspection;
3)
The penalty imposed by Section 42(b)(4) or (b)(4-5) of the Act for thesuch violations;
4)
An affidavit by the personnel observing the violation, attesting to their material actions
and observations; and
54)
Instructions for contesting the AC findings, including notification that the AC Recipient
has 35 days within which to file a petition to contest the AC, and if an appeal is filed and
the Board finds a violation, the AC recipient must pay hearing costs pursuant to Section
108.500 of this Part; and
5) An affidavit by the personnel observing the violation, attesting to their material actions
and observations;
c)
As required by Section 31.1 of the Act, the Agency or Delegated Unit must file the AC with the
Board no later than 10 days after the date of service upon the AC Recipient.
Section 108.204
Filing Requirements for Petition to Contest
a)
Who May File. The AC Recipient may file with the Board a petition to contest the AC. The AC
Recipient must be named as the respondent and the Agency or Delegated Unit must be named as
the complainant in accordance with Section 31.1(d)(2) of the Act.
b)
Time to File. The petition to contest must be filed with the Board within 35 days afterfrom the date
of the service of the AC as required by Section 31.1(d)(1) of the Act.
139
c)
Additional Requirements. Additional filing and service requirements are set forth at 35 Ill. Adm.
Code 101.Subpart C.
Section 108.206
Petition Contents
A formal petition to contest must include: any reasons why the AC Recipient believes the AC was improperly issued,
including:
Any reasons why the AC Recipient believes the AC was improperly issued, including:
a)
The AC Recipient does not own the property;
b)
The AC Recipient did not cause or allow the alleged violations;
c)
The AC was not timely filed or properly served; or
d)
The alleged violation was the result of uncontrollable circumstances.
Section 108.208 AC Recipient’s Voluntary Withdrawal
The AC Recipient may, at any time before entry of the Board decision, withdraw its petition to contest. It must do so
in writing or orally on the record at hearing. If an AC Recipient withdraws its petition to contest, the Board will
adopt an order in accordance with Section 108.406 of this Part.
SUBPART C: HEARINGS
Section 108.30
Authorization of Hearing
a)
The hearing date will be set within 60 days after the filing of the petition to contest unless the
hearing officer orders otherwise to prevent material prejudice.
b)
The hearing officer will give the parties at least 21 days written notice of the hearing in accordance
with Section 31.1(d) of the Act.
c)
The hearing will be held in accordance with 35 Ill. Adm. Code
101.Subpart F.
d)
The hearing will be held at a time and location consistent with the Board’s resources as designated
by the hearing officer.
SUBPART D: BOARD DECISIONS
Section 108.400
Standard of Review/Burden of Proof
a) The burden of proof is on the Agency or Delegated Unit.
b) The Board will issue an order finding a violation as alleged in the AC and will impose the penalty
as specified in Section 42(b)(4) of the Act if, based on the record of the proceeding, the alleged
violation occurred and the AC Recipient has not shown that the violation was the result of
uncontrollable circumstances.
Section 108.402
Dismissal
140
The Board may issue an order dismissing the AC and closing the docket upon its own motion or a motion by the AC
Recipient, Agency or Delegated Unit if the AC was not timely and properly served pursuant to Section 31.1 of the
Act and Section 108.200 of this Part.
Section 108.404
Default
Failure of a party to appear at the hearing, or failure to proceed as ordered by the Board or hearing officer, may
constitute default. Upon default the Board will issue an order against the defaulting party.
Section 108.406
Non-Contested Citations
The Board will consider the AC non-contested if the AC Recipient does not file a petition to contest, fails to timely file
a petition to contest, or withdraws its petition to contest pursuant to Section 108.208. If the AC is non-contested
prior to hearing, the Board will adopt a final order in accordance with Section 108.500(a). If the AC Recipient
withdraws its petition to contest after the hearing, the Board, will adopt a final order in accordance with Section
108.500(c) of this Part.
SUBPART E: ASSESSMENT OF PENALTIES AND COSTS
Section 108.500
Assessment ofPenalties and Costs
The Board will impose penalties and assess the penalties andcosts as follows: in the following manner:
a)
If the AC is defaulted or non-contested or defaultedas set forth in Sections 108.404 or and108.406
of this Part, respectively, the Board will do the following:
1) Impose on the AC Recipient found to have violated Section 21(o) of the Act a $500
penalty for each violation; andissue an order assessing a $500 penalty per adjudicated
violation against the AC recipient for violations
2) Impose on the AC Recipient found to have violated Section 21(p) of the Act a $1,500
penalty for a first offense and a $3,000 penalty for a second or subsequent
offense.occurring prior to January 1, 2000, and a $1,500 penalty per adjudicated violation
against the AC recipient for violations occurring on or after January 1, 2000.
b)
If the AC Recipient contests the AC and the Board finds, based on the record, that the violations
occurred and that the AC Recipient has not shown that the violation resulted from uncontrollable
circumstances, the Board will do the following:
1) Iimpose on the AC Recipient found to have violated Section 21(o) of the Act a $500
penalty for each violation;
2) Impose on the AC aRecipient found to have violated Section 21(p) of the Act a $1,500
penalty for a first offense and a $3,000 penalty for a second or subsequent offense; and
3) Assess the AC Recipient found to have violated Section 21(o) or (p) of the Act $,1500
penalty per adjudicated violation in the AC and associated hearing costs pursuant to as
set forth inSections 108.502 and 108.504 of this SubpPart against the AC Recipient.
c)
If the AC Recipient contests the AC but voluntarily withdraws the petition for review pursuant to
Section 108.208 of this Part after the start of thehearing starts, but before the Board issues an
order,the Board will do the following:
141
1) Impose on the AC Recipient found to have violated Section 21(o) of the Act a $500
penalty for each violation;
2) Impose on the AC Recipient found to have violated Section 21(p) of the Act a $1,500
penalty for a first offense and a $3,000 penalty for a second or subsequent offense; and
3) Assess the AC Recipient found to have violated Section 21(o) or (p) of the Act associated
hearing costs pursuant to Sections 108.502 and 108.504 of this Subpart. impose a $1,500
penalty per adjudicated violation in the AC and associated hearing costs as set forth in
Sections 108.502 and 108.504 of this Part against the AC Recipient.
Section 108.502
Claimed Costs of Agency or Delegated Unit
Within 30 days after the close of the hearing or as otherwise directed by the hearing officer, the Agency or Delegated
Unit must submit to the Clerk of the Board and serve on all parties an itemized listing of the costs associated with the
hearing. TheSuch costs must not include attorney’s fees or witness fees for persons employed by the Agency or
Delegated Unit.
Section 108.504
Board Costs
At the beginning of every fiscal year the Board will place on file a schedule of hearing costs for AC cases. TheSuch
schedule will include a per day breakdown of the Board's costs for holding a hearing. A copy will be available at the
Board’s offices and on the Board's Web site.
Section 108.506
Response to Claimed Costs and Reply
a)
The AC Recipient may challenge the claimed costs submitted by the Agency, Delegated Unit, or
the Board by filing a response. The response must be filed within 21 days after the service of the
claimed costs and must be served on all parties.
b)
The Agency or Delegated Unit may file a reply to the AC Recipient’s rResponse to claimed costs
within 14 days after the service of the response.
c) The Board may hold an evidentiary hearing on hearing costs.
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE A: GENERAL PROVISIONS
CHAPTER I: POLLUTION CONTROL BOARD
PART 125
TAX CERTIFICATIONS
SUBPART A: GENERAL PROVISIONS
Section
125.100
Applicability
125.102
Severability
125.104
Definitions
SUBPART B: TAX CERTIFICATION OF POLLUTION CONTROL FACILITIES AND LOW SULFUR DIOXIDE
EMISSION COAL FUELED DEVICES
Section
125.200
General
142
125.202
Initiation of Tax Certification ApplicationProceeding
125.204 Petition Content Requirements
125.206 Dismissal of Petition
125.2048
Agency Recommendation and Petitioner Response
125.206 Petition to Contest
125.208 Agency Record
125.210
Public Hearing
125.212
Hearing Notice
125.214
Burden of Proof
125.216
Board Action
AUTHORITY: Implementing and authorized by Sections 11-5, 11-10, 11-20, 11-25, 11-30, 11-35, 11-40, 11-50, and
11-55 of the Property Tax Code [35 ILCS 200/11-5, 11-10, 11-20, 11-25, 11-30, 11-35, 11-40, 11-50, and 11-55] and
Sections 26 and 27 of the Environmental Protection Act [415 ILCS 5/26 and 27].
SOURCE: Adopted in R00-20 at 24 Ill. Reg. _____, effective ______________.
SUBPART A: GENERAL PROVISIONS
Section 125.100
Applicability
a)
This Part applies to any person seeking, for property tax purposes, a Board certification that a
facility or portion thereof is a pollution control facility, as defined in Section 125.200(a)(1) of this
Part, or that a device is a low sulfur dioxide emission coal fueled device, as defined in Section
125.200(b)(1) of this Part.
b)
This PSubpart must be read in conjunction with 35 Ill. Adm. Code 101, which contains procedures
generally applicable to all adjudicatory proceedings before the Board. In the event of a conflict
between the requirements of 35 Ill. Adm. Code 101 and those of this PSubpart, the provisions of
this PSubpart apply.
Section 125.102
Severability
If any provision of this Part or its application to any person is adjudged invalid, thesuch adjudication does not affect
the validity of this Part as a whole or of any portion not adjudged invalid.
Section 125.104
Definitions
For the purpose of this PSubpart, words and terms will have the meaning as defined in 35 Ill. Adm. Code
101.Subpart B unless otherwise provided, or unless the context clearly indicates otherwise.
SUBPART B: TAX CERTIFICATION OF POLLUTION CONTROL FACILITIES AND LOW SULFUR DIOXIDE
EMISSION COAL FUELED DEVICES
Section 125.200
General
a)
Pollution Control Facilities.
For tax purposes, pollution control facilities shall be certified as such by the
Board.
[35 ILCS 200/11-20]
1)
“Pollution control facility” means, for purposes of this Part,
any system, method,
construction, device or appliance appurtenant thereto, or any portion of any building or
equipment, that is designed, constructed, installed or operated for the primary purpose of:
eliminating, preventing, or reducing air or water pollution, as the terms “air pollution” and
“water pollution” are defined in the Act; or treating, pretreating, modifying or disposing of
143
any potential solid, liquid or gaseous pollutant which if released without treatment,
pretreatment, modification or disposal might be harmful, detrimental or offensive to human,
plant or animal life, or to property.
This term does not include any of the following:
A)
Any facility with the primary purpose of eliminating, containing, preventing or
reducing radioactive contaminants or energy, or treating waste water produced by
the nuclear generation of electric power;
B)
A
Llarge diameter pipes or piping systems used to remove and disperse heat from
water involved in the nuclear generation of electric power;
C)
Any facility operated by any person other than a unit of government, whether within
or outside of the territorial boundaries of a unit of local government, for sewage
disposal or treatment; or
D)
Lland underlying a cooling pond.
[35 ILCS 200/11-10]
2)
It is the policy of this State that pollution control facilities should be valued, at 33 1/3% of the
fair cash value of their economic productivity to their owners.
[35 ILCS 200/11-5]
b)
Low Sulfur Dioxide Emission Coal Fueled Devices.
For tax purposes, a low sulfur dioxide emission
coal fueled device shall be certified as such by the Board.
[35 ILCS 200/11-50]
1)
“Low sulfur dioxide emission coal fueled device” means, for purposes of this Part,
any
device used or intended for the purpose of burning, combusting or converting locally available
coal in a manner which eliminates or significantly reduces the need for additional sulfur
abatement that would otherwise be required under State or Federal air emission standards.
For
purposes of this definition, the
word device includes all machinery, equipment, structures
and all related apparatus, including coal feeding equipment, of a coal gasification facility
designed to convert locally available coal into a low sulfur gaseous fuel and to manage all waste
and by-product streams.
[35 ILCS 200/11-40]
2)
It is the policy of this State that the use of low sulfur dioxide emission coal fueled devices should
be encouraged as conserving nonrenewable resources, reducing pollution and promoting the
use of abundant, high-sulfur, locally available coal as well as promoting the health and well-
being of the people of this State, and should be valued at 33 1/3% of their fair cash value.
[35
ILCS 200/11-35]
Section 125.202
Initiation of Tax Certification ApplicationProceeding
A person may apply for initiate a tax certification proceeding by submittingfiling a tax certification application to the
Agency on a form or forms that the Agency may prescribe.a petition that meets the requirements of Section 125.204
of this Subpart. The petitioner also must serve a copy of the petition on the Agency.
Section 125.204 Petition Content Requirements
a) Pollution Control Facilities. The following information must be contained in a petition for a Board
certification that a facility or portion thereof is a pollution control facility:
1) A detailed description of the nature of petitioner’s activities at the location of the facility
or portion thereof for which the petitioner seeks a tax certification;
144
2) A detailed description of the facility or portion thereof for which the petitioner seeks a tax
certification;
3) A detailed description of the primary purpose for which the facility or portion thereof is
designed, constructed, installed or operated;
4) A statement requesting or waiving a hearing on the petition;
5) Citation to supporting documents or legal authorities whenever such are used as a basis
for the petition (relevant portions of such documents and legal authorities other than
Board decisions, reported state and federal court decisions, and state and federal
regulations and statutes must be appended to the petition);
6) If the facility or portion thereof for which the petitioner seeks a tax certification involves
an existing environmental permit or a pending environmental permit application, a copy
of the material portion of the permit or permit application; and
7) An affidavit verifying any facts submitted in the petition.
b) Low Sulfur Dioxide Emission Coal Fueled Devices. The following information must be contained
in a petition for a Board certification that a device is a low sulfur dioxide emission coal fueled
device:
1) A detailed description of the nature of petitioner’s activities at the location of the device
for which the petitioner seeks a tax certification;
2) A detailed description of the device for which the petitioner seeks a tax certification;
3) A detailed description of the purpose for which the device is used or intended;
4) A statement requesting or waiving a hearing on the petition;
5) Citation to supporting documents or legal authorities whenever such are used as a basis
for the petition (relevant portions of such documents and legal authorities other than
Board decisions, reported state and federal court decisions, and state and federal
regulations and statutes must be appended to the petition);
6) If the device for which the petitioner seeks a tax certification involves an existing
environmental permit or a pending environmental permit application, a copy of the
material portion of the permit or permit application; and
7) An affidavit verifying any facts submitted in the petition.
c) The petition may contain information not required by this Section that is relevant to whether the
facility or portion thereof or the device is entitled to a tax certification. The petition must contain
headings corresponding to the information described in each subsection of this Section. If the
petitioner believes that any of the informational requirements of this Section do not apply to the tax
certification sought, the petition must so state and provide supporting reasons.
Section 125.206 Dismissal of Petition
The Board may at any time dismiss a petition for any of the following reasons:
a) The petition fails to comply with any of the requirements of Section 125.204 of this Part; or
145
b) The petitioner is not pursuing disposition of the petition in a timely manner.
Section 125.2048 Agency Recommendation and Petitioner Response
a)
If the Agency receives a tax certification application under Section 125.202 of this Subpart, the
Agency mustwishes to file a recommendation on the application with the Clerk, unless the
applicant withdraws the applicationpetition, it must do so within 45 days after the petition is filed,
or when a hearing has been scheduled, at least 30 days before hearing, whichever is earlier. The
Agency’s filing must:
1) Identify the name and address of the applicant;
2) Identify the location of the facility or portion thereof or the device to which the
recommendation applies;
3) Identify the facility or portion thereof or the device to which the recommendation applies;
4) Recommend that the Board issue or deny tax certification; and
5) Set forth the Agency’s reasoning for the recommendation may present any information
that the Agency believes is relevant to the Board’s consideration of the requested tax
certification.
b) If the Agency recommends that the Board deny tax certification, the Agency’s filing must state that
the applicant has 35 days after the date of service thereof to file a petition with the Board to contest
the Agency recommendation. If the Agency recommends that the Board deny tax certification due
to informational deficiencies in the application, the Agency’s filing must identify the types of
information needed to correct the deficiencies.
c)
The Agency must serve the applicant with a copy of the filingrecommendation under this Section
on the petitioner and the hearing officer.
Section 125.206 Petition to Contest
ab)
If the applicant wishes to contest an Agency recommendation that the Board deny tax
certification, the applicant mustThe petitioner may file a petition to contest with the Clerk response
to theany Agency recommendation within 3514 days after the Agency serves the applicant under
Section 125.204(c) of this Subpartpetitioner with a copy of the recommendation. The petition
must:
1) Specify the grounds for contesting the Agency’s recommendation; and
2) Specify the date on which the Agency served the applicant under Section 125.204(c) of
this Subpart.
b)
The applicantpetitioner must serve the Agency with a copy of any petition to contest under
subsection (a) of this Section response on the Agency and the hearing officer.
Section 125.208 Agency Record
The Agency must file the entire record on which it based its recommendation within 30 days after the applicant files
a petition to contest under Section 125.206 of this Subpart, unless or as the Board or hearing officer directsorders
146
otherwise. If the Agency wishes to seek additional time to file the record, it must file a request for extension before
the date on which the record is due to be filed.
Section 125.210
Public Hearing
a)
The Board will hold a public hearing in a tax certification proceeding if when:
1)
The applicant files a petition to contest in accordance with Section 125.206 of this
Subpart, unless the Board disposes of the petition on a motion for summary judgment
brought pursuant to 35 Ill. Adm. Code 101.516petitioner or the Agency requests a
hearing; or
2)
The Board in its discretion determines that a hearing would be advisable.
b)
If a hearing is to be held, the hearing officer will set a time and place for the hearing. The hearing
officer will make an attempt to consult with the applicantpetitioner and the Agency before
scheduling a hearing. Hearings will be held in the county
where the facility or portion thereof or
the device for which the applicantpetitioner seeks a tax certification is located, unless the hearing
officer orders otherwise.
Section 125.212
Hearing Notice
After receiving notification from the hearing officer of the scheduled hearing date made pursuant to Section 125.210
of this Subpart, the Clerk will, in accordance with 35 Ill. Adm. Code 101, cause publication of a notice of hearing in a
newspaper of general circulation in the county where the facility or portion thereof or the device for which the
applicantpetitioner seeks a tax certification is located.
Section 125.214
Burden of Proof
If the applicant files a petition to contest under Section 125.206 of this Subpart or the Board otherwise directs that a
hearing be held pursuant to Section 125.210 of this Subpart, the applicant has the The burden to of proof in a tax
certification proceeding is on the petitioner. The petitioner must prove that the facility or portion thereof for which
it seeks a tax certification is a pollution control facility, as defined in Section 125.200(a)(1) of this SubpPart, or that
the device for which it seeks a tax certification is a low sulfur dioxide emission coal fueled device, as defined in
Section 125.200(b)(1) of this SubpPart.
Section 125.216
Board Action
a)
Pollution Control Facilities.
If it is found that the claimed facility or relevant portion thereof is a
pollution control facility as defined in
Section 125.200(a)(1) of this Part,
the Board shall enter a finding
and issue a certificate to that effect. The certificate shall require tax treatment as a pollution control
facility, but only for the portion certified if only a portion is certified. The effective date of a certificate
shall be the date of
the petition
for the certificate or the date of the construction of the facility, which ever
is later.
[35 ILCS 200/11-25]
b)
Low Sulfur Dioxide Emission Coal Fueled Devices.
If it is found that the claimed device meets the
definition
of low sulfur dioxide emission coal fueled device as set forth in Section 125.200(b)(1) of
this Part,
the Board shall enter a finding and issue a certificate that requires tax treatment as a low
sulfur dioxide emission coal fueled device. The effective date of a certificate shall be on January 1
preceding the date of certification or preceding the date construction or installation of the device
commences, whichever is later.
[35 ILCS 200/11-55]
147
c)
After notice to the holder of the certificate and an opportunity for a hearing pursuant to this
Subpart,
the Board may on its own initiative revoke or modify a pollution control certificate or a low
sulfur dioxide emission coal fueled device certificate whenever any of the following appears:
1)
The certificate was obtained by fraud or misrepresentation;
2)
The holder of the certificate has failed substantially to proceed with the construction,
reconstruction, installation, or acquisition of pollution control facilities or a low sulfur dioxide
emission coal fueled device; or
3)
The pollution control facility to which the certificate relates has ceased to be used for the
primary purpose of pollution control and is being used for a different purpose.
[35 ILCS
200/11-30]
d)
The Clerk will provide the applicantpetitioner and the Agency with a copy of the Board’s order
setting forth
the Board’s findings and certificate, if any.
[35 ILCS 200/11-30].
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE A: GENERAL PROVISIONS
CHAPTER I: POLLUTION CONTROL BOARD
PART 130
IDENTIFICATION AND PROTECTION OF TRADE SECRETS AND OTHER NON-DISCLOSABLE INFORMATION
SUBPART A: GENERAL PROVISIONS
Section
130.100 General
130.1002 Purpose and Applicability
130.1024
Additional Procedures
130.1046
Definitions and Severability
130.1068
Segregation of Articles
130.10810
Disposal of Articles
130.110 Articles Containing Emission Data
SUBPART B: PROCEDURES FOR IDENTIFYING ARTICLES THAT REPRESENT TRADE SECRETS
Section
130.200
Initiation of a Claim that an Article Represents a Trade Secret
130.201 State Agency Request for Justification of Claims
130.202 Time Limit for Delayed Submission of Justification
130.2032
Contents of Statement of Justification
130.204
Waiver of Statutory Deadlines
130.206 Response to the Trade Secret Claim
130.2068
Deadline for State Agency Trade Secret Determination
130.20810
Standards for State Agency Determination
130.2102
State Agency Actions Following a Negative Determination
130.2124
State Agency Actions Following a Positive Determination
130.2146
Review of State Agency Trade Secret Determination
130.2168
Effect of a Determination of Trade Secret Status on Other State Agencies
130.21820
Status of Article Determined or Claimed to Represent a Trade Secret Before January 1, 2001the
Effective Date of this Part
130.2202
Extension of Deadlines to Participate in Proceedings
148
SUBPART C: PROCEDURES FOR PROTECTING ARTICLES THAT REPRESENT TRADE SECRETS
Section
130.300
Applicability
130.302
Owner’s Responsibility to Mark Article
130.304
State Agency’s Responsibility to Mark Article
130.306
Transmission of Article Between State Agencies
130.308
Public Access to Information Related to Article
130.310
Access to Claimed or Determined Article
130.312
Unauthorized Disclosure or Use of Article
130.314
Limitation on Copying Article
SUBPART D: NON-DISCLOSABLE INFORMATION OTHER THAN TRADE SECRETS
Section
130.400
General
130.402
Who May View Non-Disclosable Information
130.404
Application for Non-Disclosure
130.406
Public Inspection
130.408
Board Order
APPENDIX A
Comparison of Former and Current Rules
AUTHORITY: Implementing Sections 7 and 7.1 of the Environmental Protection Act (Act) [415 ILCS 5/7 and 7.1]
and authorized by Sections 7, 7.1, 26, and 27 of the Act [415 ILCS 5/7, 7.1, 26, 27].
SOURCE: Subparts A, B, and C originally adopted in R81-30 at 7 Ill. Reg. 16149, effective November 23, 1983.
Subpart D originally adopted in R88-5(A) at 13 Ill. Reg. 12055, effective July 10, 1989; old Part repealed, new Part
adopted in R00-20 at 24 Ill. Reg. __, effective____.
SUBPART A: GENERAL PROVISIONS
Section 130.100 General
In accordance with 2 Ill. Adm. Code 2175.300, all files, records, and data of the Board are open to reasonable public
inspection and copying in the Board’s Chicago office except for information exempted from inspection by Section 7
of the Environmental Protection Act (Act) and Section 7 of the Freedom of Information Act (FOIA) [5 ILCS 140/7].
The following rules deal specifically with non-disclosable information and trade secret information.
Section 130.1002
Purpose and Applicability
a)
Section 7(a) of the Act provides that
all files, records, and data of the Illinois Environmental Protection
Agency, the Board, and DNR shall be open for reasonable public inspection . . . except for
information
which constitutes a trade secret; information privileged against introduction in judicial proceedings;
internal communications of the several agencies; and information concerning secret manufacturing
processes or confidential data submitted by any person under the Act.
[415 ILCS 5/7(a)] Section 7.1
of the Act provides that
the Board shall adopt regulations . . . which prescribe: (i) procedures for
determining whether articles represent a trade secret; and (ii) procedures to protect the confidentiality of
such articles
. [415 ILCS 5/7.1(b)]
b) This Part establishes procedures to identify and protect trade secrets and other non-disclosable
information.
149
1) Subpart A of this Part sets forth general provisions that apply with respect to both trade
secrets and other non-disclosable information. References in this Subpart to non-
disclosable information other than trade secrets apply only to proceedings before the
Board.
2) Subparts B and C of this Part address only trade secrets. Those Subparts apply to articles
submitted to or otherwise obtained by the Board, the Illinois Environmental Protection
Agency, or DNR.
3)
Subpart D of this Part addresses only non-disclosable information other than trade
secrets. That Subpart applies only to filings of articles with the Board.
Section 130.1024
Additional Procedures
The Illinois Environmental Protection Agency and DNR eachEach agency may adopt additional procedures that are
not inconsistent with this Part tofor the protection of articles that are claimed or determined to represent a trade
secret.
Section 130.1046
Definitions and Severability
a)
Definitions. For the purpose of this Part, “State agency” refers to the Board, the Illinois
Environmental Protection Agency, or DNR. Other words and terms have the meanings set forth in
35 Ill. Adm. Code 101.Subpart B, unless otherwise provided or unless the context clearly indicates
otherwise.
b)
Severability. If any provision of this Part or its application to any person is adjudged invalid, the
such adjudication does not affect the validity of this Part as a whole or of any portion not
adjudged invalid.
Section 130.1068
Segregation of Articles
Any article, or any page or portion thereof, thatwhich is claimed or determined to represent a trade secret or other
non-disclosable information must be kept segregated from articles thatwhich are open to public inspection, and must
be kept secure from unauthorized access.
Section 130.10810
Disposal of Articles
The StateAn agency mustmay dispose of an article thatwhich is claimed or determined to represent a trade secret or
other non-disclosable information, and any copies made of that article, according to its application for authority to
dispose of State records approved by the State Records Commissiononly by shredding, burning, or returning the
article and any copies to the owner.
Section 130.110 Articles Containing Emission Data
a)
All emission data reported to or otherwise obtained by the Illinois Environmental Protection Agency, the
Board, or DNR in connection with any examination, inspection or proceeding under the Act shall be
available to the public to the extent required by the federal Clean Air Act Amendments of 1977 (P.L. 95-
95) as amended.
[415 ILCS 5/7(c).]
b) For purposes of this Section, “emission data” means:
1) The identity, amount, frequency, concentration, or other characteristics (related to air
quality) of any contaminant that:
150
A) Has been emitted from an emission unit;
B) Results from any emission by the emission unit;
C) Under an applicable standard or limitation, the emission unit was authorized to
emit; or
D) Is a combination of any of the items described in subsection (b)(1)(A), (B), or (C)
of this Section.
2) The name, address (or description of the location), and the nature of the emission unit
necessary to identify the emission unit, including a description of the device, equipment,
or operation constituting the emission unit.
c) In addition to subsection (b) of this Section, information necessary to determine or calculate
emission data, including rate of operation, rate of production, rate of raw material usage, or
material balance, will be deemed to represent emission data for the purposes of this Section if the
information is contained in a permit to ensure that the permit is practically enforceable.
SUBPART B: PROCEDURES FOR IDENTIFYING ARTICLES THAT REPRESENT TRADE SECRETS
Section 130.200
Initiation of a Claim that an Article Represents a Trade Secret
a)
The owner of an article may claim that the article represents is a trade secret only by submitting to
providing the State agency with the claim letter information required by subsection (b)(1) of this
Section at the time the owner submits the article to the State agency. If the owner of the article
submits the article to the State agency without simultaneously submitting the claim letter
information required by subsection (b)(1) of this Section, the article will be considered a matter of
general public knowledge and cannot be protected as a trade secret.
b)
The owner ofAny person wishing to have an article seekingconsidered as a trade secret protection
must submit the following information tofile with the State agency at the time the owner submits
the article to the State agencyholding the article and any hearing officer, the following information:
1)
A claim letter thatwhich clearly states the name of the article, briefly describesgives a brief
description of the article, and states that the article is claimed to represent a trade secret,
as defined in these rules and the Act; and
2)
A copy of the article marked as provided in Section 130.302 of this Part.; and
3)
c)
The owner of an article seeking trade secret protection must submit to the State agency aA
statement of justification for the claim meeting the requirements of Section 130.2032 of this
SubpartPart and a waiver of anythe statutory deadlines for a Stateany agency decision as provided
in Section 130.204 of this SubpartPart. The owner of the article may submit the statement of
justification at the time the owner submits the article, or at a later time, but in no event later than
the time limit established pursuant to Section 130.202 of this Subpart.
dc)
If the State an agency is provided with a claim letterthe information required by subsection (b)(1)
of in this Section, the State agency it must consider the such article a trade secret and must protect
itsuch article from disclosure pursuant to Subpart C of this Part until the State agency makes a
final determination is made by the agency and the appeal time has expired.
151
ed)
The owner of an article seekingA person claiming trade secret protection is not required to for an
article must serve anyall other persons with the article or the page or portion thereof for which the
owner seeks trade secret protectionfollowing:
1) A claim letter that clearly states the name of the article, gives a brief description of the
article, and states that the article is claimed to represent a trade secret, as defined in these
rules and the Act;
2) Where less than an entire article is claimed to represent a trade secret, a copy of the article
marked and redacted as provided in Section 130.302(b)(4) of this Part; and
3) Any statement of justification for the claim that was submitted pursuant to subsection
(b)(3) of this Section meeting the requirements of Section 130.202 of this Part and a waiver
of the statutory deadlines for any agency decision as provided in Section 130.204 of this
Part.
Section 130.201 State Agency Request for Justification of Claims
a) The State agency may request that the owner of an article claimed to represent a trade secret
submit a statement of justification meeting the requirements of Section 130.203 of this Subpart.
The State agency may make the request when the article is submitted or obtained, or at any later
time.
b) The request under subsection (a) of this Section must be in writing. The State agency must set forth
in the request the reasoning for the request. Reasons for the request may include the following:
1) The State agency has received or reasonably expects to receive a request from the public to
disclose the article;
2) The article is required to be available to the public in a proceeding before the State agency;
3) Information within the article is required to be contained in a permit issued by the State
agency;
4) To facilitate public participation in a proceeding before the State agency;
5) A regulation requires that the State agency determine whether the article represents a
trade secret at the time that the article is submitted to or obtained by the State agency; or
6) Determining the validity of the claim will facilitate the timely performance of State agency
responsibilities.
Section 130.202 Time Limit for Delayed Submission of Justification
a) Within 10 working days after the date on which the owner of an article claimed to represent a
trade secret receives a State agency request for justification under Section 130.201 of this Subpart,
the owner must submit to the State agency a statement of justification meeting the requirements of
Section 130.203 of this Subpart.
b) The State agency may extend the time period under subsection (a) of this Section for a second
period of 10 working days if, within the first 10 day period, the owner of the article requests an
extension and demonstrates that the extension is necessary to complete the statement of
justification.
152
Section 130.2032
Contents of Statement of Justification
A statement of justification must contain the following:
a)
A detailed description of the procedures used by the owner to safeguard the article from becoming
available to persons other than those selected by the owner to have access thereto for limited
purposes;
b)
A detailed statement identifying the persons or class of persons to whom the article has been
disclosed;
c)
A certification that the owner has no knowledge that the article has ever been published, or
disseminated or has otherwise become a matter of general public knowledge;
d)
A detailed discussion of why the owner believes the article to be of competitive value; and
e)
Any other information that will support the claim.
Section 130.204
Waiver of Statutory Deadlines
a) When the owner of an article seeking trade secret protection submits a statement of justification
under this Subpart tofiles with the State agency an article and a claim that the article is a trade
secret, the owner must simultaneously submit tofile with the State agency a waiver of any
statutory deadline for the State agency to decide the underlying proceeding or matter, such as a
permit application.
b) The waiver under subsection (a) of this Section must extend the statutory deadline for a period
equal to the period by which the decision on the underlying proceeding or matter is delayed due to
any subsequent trade secret justification and determination process plus 45 daysat least 90 days
past any statutory deadline for the agency to decide the underlying proceeding. This is to allow 45
days for the agency to decide the trade secret claim and 35 days for any appeal of the agency’s
trade secret determination, plus mailing time.
Section 130.206 Response to the Trade Secret Claim
Any party in a contested case before any of the agencies in which a trade secret claim is made will have 7 days in
which to file a response to the trade secret claim. All responses must be filed with the agency holding the article, and
served upon all other parties to the case, and the hearing officer if applicable.
Section 130.2068
Deadline for State Agency Trade Secret Determination
a)
The State agency must determine whether the article representsis a trade secret within 45 days
after the date it receives of receipt of a complete statement of justification as prescribed in Section
130.2032 of this SubpartPart.
b)
The owner of an article seeking trade secret protection may extend the time period for the State
agency decision to determine whether the article representsis a trade secret by submitting to filing
with the State agency:
1)
waiver of any statutory deadline for the agency to decide the underlying proceeding as
provided for in Section 130.204 of this Part; and
2)
a waiver of the deadline for the State agency to determine whether the article representsis
a trade secret.
153
c) The waiver described in subsection (b)(1) of this Section must be for at least the same amount of
time as the waiver described in subsection (b)(2) of this Section, plus 45 days. This is to allow 35
days for any appeal of the agency’s trade secret determination, plus mailing time.
Section 130.20810
Standards for State Agency Determination
a)
An article will be determined to represent a trade secret if:
1)
The owner has complied with the procedures for making a claim and justification as
prescribed by this SubpartPart; and
2)
The statement of justification demonstrates that:
A)
The article has not been published, disseminated, or otherwise become a matter
of general public knowledge; and
B)
The article has competitive value.
b)
There will be a rebuttable presumption that an article has not been published, disseminated, or
otherwise become a matter of general public knowledge, if:
1)
The owner has taken reasonable measures to prevent the article from becoming available
to persons other than those selected by the owner to have access to the article for limited
purposes; and
2)
The statement of justification contains a certification that the owner has no knowledge
that the article has ever been published, disseminated, or otherwise become a matter of
general public knowledge.
c)
The State agency may determine that any page or portion of the article represents a trade secret
without finding that the entire article represents a trade secret.
Section 130.2102
State Agency Actions Following a Negative Determination
a)
If the State agency determines that an article, or any page or portion thereof, does not meet the
standards specified in Sectionsubsection 130.20810(a)(1) or (2) of this SubpartPart, the State
agency must deny the claim for trade secret protection for the article or page or portion thereof,
and must give written notice of the determinationsuch denial to the owner of the article and any
requester pursuant to subsection (b) of this Section.
b)
Written notice that the State agency deniedof the denial of a claim for trade secret protection must
be given by certified mail, return receipt requested, and must contain the following information:
1)
A statement of the State agency’s reasoning for denying the claim;
2)
A notification thatof the availability of review of the State agency determination decision
is available to review pursuant to the procedures prescribed in Section 130.2146 of this
SubpartPart; and
3)
A notification that the State agency will cease protecting the article, or the page or portion
thereof, as a trade secret unless the State agency is served with notice of the filing of a
petition for review of the State agency’s determination within 35 days after service of the
date of notice of denial on to the owner and any requester.
154
c)
If the State agency is served with notice of the filing of a petition for review of its determination
within 35 days after service of the notice of denial on to the owner and any requester, the State
agency must notify the requester of thesuch action and must continue to protect the article, or the
page or portion thereof, pursuant to Subpart C of this Part until the State agencysuch time as it
receives official notification of a final order by a reviewing body with proper jurisdiction that does
not reverse the State agency determination and that is not subject to further appeal.
d)
If the State agency does not receive the notification of a petition for review within 35 days after
service of the notice of denial on the owner and any requester or does receive official notification of
a final, non-appealable action that which does not reverse the State agency determination, the
article will not be protected pursuant to Subpart C of this Part and the State agency must so notify
the owner and any requester by certified mail, return receipt requested.
Section 130.2124
State Agency Actions Following a Positive Determination
a)
If the State agency determines that an article, or any page or portion thereof, meets the standards
specified in subsection 130.20810(a)(1) and (2) of this SubpartPart, the State agency must grant the
claim for trade secret protection for the article or page or portion thereof, and must give written
notice of the determination to the owner of the article and any requester by certified mail, return
receipt requested, of thesuch granting to the owner of the article pursuant to subsection (b) of this
Section.
b)
Written notice of the granting of a claim for trade secret protection must be given by certified mail
to all parties, return receipt requested, and must contain the following information:
1)
A statement of the State agency’s reasonings for granting the claim;
2)
A notification that of the availability of review of the State agency’s determination may be
reviewed pursuant to the procedures prescribed in Section 130.2146 of this SubpartPart;
and
3)
A notification that the article, or the page or portion thereof, will be protected pursuant to
Subpart C of this Part until such time as the State agency receives official notification of a
final order by a reviewing body that reverses the State agency determination and that is
not subject to further appeal.
c)
The State agency must continue to protect an article, or the page or portion thereof, for which
trade secret protection has been granted pursuant to Subpart C of this Part until the State
agencysuch time as it receives official notification of a final order by a reviewing body with proper
jurisdiction thatwhich reverses the State agency determination and thatwhich is not subject to
further appeal.
Section 130.2146
Review of State Agency Trade Secret Determination
a)
An owner or requester who is adversely affected by a final determination of the Illinois
Environmental Protection Agency or DNR agency pursuant to this Subpart Part may petition the
Board to review the final determination within 35 days after service entry of the determination.
Appeals to the Board will be pursuant to 35 Ill. Adm. Code 105.Subparts A and B.
1) Appeals to the Board of the Agency’s final decisions will be pursuant to 35 Ill. Adm. Code
105.Subparts A and B.
155
2) Appeals to the Board of DNR’s final decisions will be pursuant to 35 Ill. Adm. Code
105.Subparts A and F.
b)
An owner or requester who is adversely affected by a final determination of the Board pursuant to
this SubpartPart, may obtain judicial review from the appellate court by filing a petition for review
pursuant to Section 41 of the Act [415 ILCS 5/41].
c)
If the State agency fails to make a final determination within the time limits prescribed by this
Subpart, the State agency must continue to protect the article as set forth in Subpart C of this Part
until the State agency issues a final determination pursuant to this Subpart. The failure of an
agency to make a final determination within the time limits prescribed in this Part may be deemed
to be a final determination for purposes of appeal.
1) If an agency fails to make a final determination within the time limits, the agency must
continue to protect the article as set out in Subpart C of this Part during the 35 day appeal
time.
2) If after 35 days no appeal is taken, the article will be treated as if it received a negative
determination from the agency and the article will no longer be protected pursuant to
Subpart C.
Section 130.2168
Effect of a Determination of Trade Secret Status on Other State Agencies
a) Except as provided in subsection (b) of this Section, aA claim or determination by one State agency
that an article representsis a trade secret made pursuant to this SubpartPart will apply to that
same article when in the possession of either of the other two State agencies.
b) Notwithstanding the foregoing sentence, whenWhen such an article described in subsection (a) of
this Section is the subject of a review before the Board pursuant to Section 130.2146(a) of this
SubpartPart, the article will be treated as a trade secret only unless or until the Board determines
that the article doesis not respresent a trade secret.
Section 130.21820
Status of Article Determined or Claimed to Represent a Trade Secret Before January 1,
2001the Effective date of this Part
a)
Any article that was determined by a Statean agency before January 1, 2001,prior to the effective
date of this Part to represent a trade secret in accordance with State agency procedures adopted
pursuant to the IAPA will be deemed to have been determined to represent a trade secret for the
purposes of this Part. The State agency must protect the article in accordance with Subpart C of
this Part.
b)
If a Statean agency possesses an article that was claimed before January 1, 2001, the effective date
of this Part to represent a trade secret and the State agency did not determine before January 1,
2001, the effective date of this Part whether the article represents a trade secret in accordance with
procedures adopted pursuant to the IAPA, the article is deemed to have been claimed to represent
a trade secret for the purposes of this Part. These claims are deemed pending with unlimited
waivers of any deadlines for decision. for 180 days after the effective date of this Part. If the owner
of the article fails to file within the foregoing 180 day period a claim with the agency under Section
130.200 of this subpart with respect to the article, the article will be considered a matter of general
public knowledge and cannot be protected as a trade secret.
Section 130.2202
Extension of Deadlines to Participate in Proceedings
156
a) Upon the State agency’s finding that any person has satisfied the requirements of subsection (b) of
this Sectionwill be adversely affected in a proceeding before that agency due to the timing of the
agency’s determination of the trade secret status of an article and that the article is relevant to the
proceeding, the State agency must extend any deadline for the person to participate in thethat
proceeding before the State agency until 10 days after the State agency determines the trade secret
status of the article.
b) The person seeking an extension to participate in a proceeding before the State agency has the
burden to demonstrate that the person will be adversely affected in the proceeding due to the
timing of the State agency’s trade secret determination, that the person could not have avoided the
resulting delay by making an earlier request, and that the article is relevant to the proceeding.
SUBPART C: PROCEDURES FOR PROTECTING ARTICLES THAT REPRESENT TRADE SECRETS
Section 130.300
Applicability
Any article that is claimed or determined to represent a trade secret pursuant to Subpart B of this Part must be
protected from unauthorized disclosure pursuant to this Subpart.
Section 130.302
Owner’s Responsibility to Mark Article
a)
WhenWhere an entire article is claimed to represent a trade secret, the owner must mark the article
with the words “Trade Secret” in red ink on the face or front of the article.
b)
WhenWhere less than an entire article is claimed to represent a trade secret, the owner must:
1)
Mark the article with the words “Trade Secret” in red ink on the face or front of the
article;
2)
Indicate on the face or front of the article which page or portion of the article is claimed to
represent a trade secret;
3)
Mark every page or portion of the article thatwhich is claimed to represent a trade secret
with the words “Trade Secret;” and
4)
Furnish the State agency with a second copy of the article thatwhich is marked pursuant
to subsections (b)(1) and (2) of this Section and from which the page or portion of the
article that is claimed to represent a trade secret is deleted.
Section 130.304
State Agency’s Responsibility to Mark Article
a)
When Where an entire article is determined to represent a trade secret pursuant to Section 130.208
of this Part, the State agency must mark the article with the word “DETERMINED” in red ink on
the face or front of the article and must also mark any claim letter submitted for the article.
b)
When Where less than an entire article is determined to represent a trade secret pursuant to
Section 130.208 of this Part, the State agency must:
1)
Mark the article with the word “DETERMINED” in red ink on the face or front of the
article;
2)
Indicate on the face or front of the article and any claim letter submitted for the article
which page or portion of the article is determined to represent a trade secret; and
157
3)
Mark every page or portion of the article that which is determined to represent a trade
secret with the word “DETERMINED.”
Section 130.306
Transmission of Article Between State Agencies
Before Prior to transmitting any article that which is claimed or determined to represent a trade secret to another
State agency, the State agency must einsure that the article is marked pursuant to Sections 130.302 and 130.304 of
this Subpart Part and is clearly distinguished and segregated from other transmitted materials.
Section 130.308
Public Access to Information Related to Article
a)
A copy of the claim letter submitted pursuant to Section 130.200(b)(1) of this Part will be open to
public inspection.
b)
When Where an article was determined to represent a trade secret before January 1, 2001,prior to
the effective date of this Part and no claim letter exists, the State agency must prepare a statement
that will be open to public inspection, and that names and briefly describes the article.
c)
When Where a page or portion of an article is claimed or determined to represent a trade secret, a
copy of the article must be open to public inspection, with the part or portion of the article that is
claimed or determined to represent a trade secret or that would lead to disclosure of the trade
secret deleted.
Section 130.310
Access to Claimed or Determined Article
a)
The State agency must designate the State agency employees or officers who are authorized to
review articles that are claimed to represent trade secrets for the purpose of making a
determination pursuant to Section 130.208 of this Part.
b)
Access to an article that is claimed or determined to represent a trade secret must be limited to:
1)
Employees or officers designated pursuant to subsection (a) of this Section;
2)
Other employees, officers, or authorized representatives of the State specifically
authorized by the State agency to have access to the article for the purpose of carrying out
the Act or regulations promulgated thereunder or when relevant to a proceeding or
matter under the Act; or
3)
Employees, officers, or authorized representatives of the United States who are
specifically authorized by the State agency to have access to the article for the purpose of
carrying out federal environmental statutes or regulations.
c)
The State agency must maintain the following information with regard to an article thatwhich is
claimed or determined to represent a trade secret:
1)
A record of the number of copies held by the State agency;
2)
A log of the location of all copies; and
3)
A log of all persons who are authorized to review the article or copies thereof.
Section 130.312
Unauthorized Disclosure or Use of Article
158
a)
The State agency must einsure that all persons who are authorized to have access to an article that
is claimed or determined to represent a trade secret are given notice of the restrictions on disclosure
and use of the article contained in this Subpart.
b)
No State agency officer, employee, or authorized representative may disclose, except as authorized
by this Subpart, or use for private gain or advantage, any article that is claimed or determined to
represent a trade secret.
c)
Each State agency officer, employee, or authorized representative must take reasonable measures
to safeguard an article that is claimed or determined to represent a trade secret and to protect
against disclosure that is inconsistent with these rules.
d)
Each authorized representative of the State agency who is furnished with access to an article that
is claimed or determined to represent a trade secret pursuant to this Part must use or disclose that
information only as authorized by the contract or agreement under which thesuch person is
authorized to represent the State agency.
Section 130.314
Limitation on Copying Article
No State agency officer, employee, or authorized representative of the State or the United States may copy an article
that which is claimed or determined to represent a trade secret pursuant to this Part except when where authorized
to do so by the State agency officer or employee designated to review the article pursuant to Section subsection
130.312(a) of this SubpartPart. All copies must be recorded and logged in accordance with Section subsection
130.312(c) of this SubpartPart.
SUBPART D: NON-DISCLOSABLE INFORMATION OTHER THAN TRADE SECRETS
Section 130.400
General
This Subpart applies only to filings of articles with the Board, and only with respect to Board determinations of
whether articles are non-disclosable information other than trade secrets. Trade secret determinations are addressed
in Subparts A, B and C of this Part. “Non-disclosable information” is will have the meaning as defined in 35 Ill.
Adm. Code 101.Subpart B.
Section 130.402
Who May View Non-Disclosable Information
Any information accorded confidential treatment may be disclosed or transmitted to other officers, employees
, including
Board Members, Board attorneys, environmental scientists of the Board’s technical unit, Board hearing officers, the
Clerk, Assistant Clerk,
or authorized representatives of this State or of the United States concerned with or for the
purposes of carrying out this Act or the federal environmental statutes and regulations; provided, however, that such
information shall be identified as confidential by . . . the Board . . ., as the case may be.
[415 ILCS 5/7(e)]
Section 130.404
Application for Non-Disclosure
a)
Except as provided in subsection (c)(4) of this Section, the applicant must file a single copy of the
following:
1)
The article that is sought to be protected from disclosure; and
2)
The application for non-disclosure.
b)
When an entire article is sought to be protected from disclosure, the applicant must mark the
article with the words “NON-DISCLOSABLE INFORMATION” in red ink on the face or front of
the article.
159
c)
When less than an entire article is sought to be protected from disclosure, the applicant must:
1)
Mark the article with the words “NON-DISCLOSABLE INFORMATION” in red ink on
the face or front of the article;
2)
Indicate on the face or front of the article which page or portion of the article is claimed to
be non-disclosable information;
3)
Mark every page or portion of the article sought to be protected from disclosure with the
words “NON-DISCLOSABLE INFORMATION;”
4)
File with the Clerk a second copy of the article that is marked pursuant to paragraphs (1)
and (2) of this subsection and from which the page or portion sought to be protected from
disclosure is deleted.
d)
The applicant is not required to serve any other persons with the article or the page or portion
thereof for which the applicant seeks protection from disclosure must serve all other parties to a
proceeding and the hearing officer with the following:
1)
A copy of the application for non-disclosure under subsection (f) of this Section; and
2) When less than an entire article is sought to be protected from disclosure, a copy of the
article marked and redacted as provided in subsection (c)(4) of this Section.
e) Each party served pursuant to subsection (d) of this Section may file a response to the application
for non-disclosure within 7 days after service. Each party filing a response must serve the other
parties to the adjudicatory proceeding and the hearing officer.
ef)
The application for non-disclosure must contain the following:
1)
Identification of the particular non-disclosure category into which the material that is
sought to be protected from disclosure falls (see 35 Ill. Adm. Code 101.202 for the
definition of “non-disclosable information”);
2)
A concise statement of the reasons for requesting non-disclosure;
3)
Data and information on the nature of the material that is sought to be protected from
disclosure, identification of the number and title of all persons familiar with thesuch data
and information, and a statement of how long the material has been protected from
disclosure;
4)
An affidavit verifying the facts set forth in the application for non-disclosure that are not
of record in the proceeding; and
5)
A waiver of any decision deadline in accordance with Section 130.204 of this Part.
Section 130.406
Public Inspection
a)
The public cannot inspect material for which a non-disclosure application is pending before the
Board.
b)
If the Board determines that the material is not entitled to be protected from disclosure, the public
cannot inspect the material:
160
1)
Uuntil the time for appeal of the Board’s determination has expired; or
2)
Iif an appeal of the Board’s determination is filed, until such time as the Board receives
official notification of a final order of a court with proper jurisdiction that does not
reverse the Board’s determination and that is not subject to further appeal.
ca)
If the Board determines that the material is entitled to be protected from disclosure, the Board will
protect from pubic inspection any page or portion of the material that the Board determined to be
non-disclosable information until such time as the Board receives official notification of a final
order of a court with proper jurisdiction that reverses the Board’s determination and that is not
subject to further appeal.
Section 130.408
Board Order
a)
If the Board determines that the article or any page or portion thereof is non-disclosable
information, the Board will mark the word “DETERMINED” on the face or front and on every
page or portion determined to be non-disclosable information.
b)
If the Board determines that the article, or any page or portion thereof is not non-disclosable
information, the Board may enter a conditional non-disclosure order allowing the applicant to
withdraw the material addressed in the order. If the applicant fails to withdraw the material by
the deadline given in the Board order, the material will be returned to the Clerk’s normal file and
will be available for the public to inspect.
161
APPENDIX A Comparison of Former and Current Rules
The following appendix compares the former procedural rules (in effect on December 31, 2000) with the current
procedural rules (effective January 1, 2001).
FORMER PART 120
CURRENT SECTION
120.101
130.100
120.102
130.100
120.103
101.200
101.202
130.104
120.201
130.200
120.202
130.203
120.203
130.204
120.215
130.201
120.220
130.202
120.225
130.206
120.230
130.208
120.240
130.210
120.245
130.212
120.250
130.214
120.260
130.216
120.265
130.218
120.270
130.220
120.301
130.300
120.305
130.302
120.310
130.304
120.315
130.306
120.320
130.106
120.325
130.308
120.330
130.310
120.340
130.310
120.350
130.312
120.360
130.108
120.401
130.102
162
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above order was
adopted on the 2nd day of November 2000 by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
