ILLINOIS POLLUTION CONTROL BOARD
February
8,
1990
IN THE MATTER OF:
PROCEDURAL RULES REVISION
)
R88-5(B)
35 ILL. ADM.
CODE 102 AND
)
(Rulemaking)
106 (Subparts
D,
E, and
F)
PROPOSED RULE.
SECOND NOTICE.
OPINION AND ORDER OF THE BOARD
(by J.
Theodore Meyer):
This
matter
is
before
the
Board
for
second
notice
consideration
of
proposed
new
procedural
rules
for
rulemaking
proceedings.
On September
8,
1988,
the Board proposed for first
notice revisions to Parts 101,
102,
106,
and 107 of its procedural
rules,
found
at
Title
35
of
the
Illinois
Administrative
Code.
After two public hearings and consideration of written comments,
the Board split the docket.
Docket R88—5(A)
contained new rules
in
Part
101
(general
provisions)
and
Subpart
G
of
Part
106
(adjusted
standard
proceedings),
and
the
repeal
of
Part
107
(sanctions,
which
are now covered
in
Part
101)
.
The
rules
in
docket R88-5(A) were adopted by the Board and became effective on
July 10, 1989.
This docket (R88-5(B))
contains proposed
new. rules
for regulatory proceedings
(Part 102),
the repeal of the existing
Part 102 rules, and revisions to Subparts
D,
E, and F of Part 106.
(Please note that these Subparts are being revised only to update
references
to Part 102.)
On August 31,
1989,
the Board adopted
a
second first notice order, after revising the rules in response to
comment.
First notice of the rules was published on September 22,
1989, beginning at
13
Ill.
Peg.
14693.
A public hearing was held
on November
9,
1989,
and written comments were
received.
After
consideration
of
those
comments
and
further
revision
to
the
proposed rules, the Board today proposes the rules
in P88-5(B)
for
second notice.
The Board received fifteen written public comments during the
1988 first notice period (Public Comments (P.C.)
#
11-25), and ten
written comments during the
1989 comment period
(P.C.
#
4l_50).1
The Board has considered all of these comments,
and all testimony
received
at
the
hearings,
when
revising
these
rules
for second
notice.
This opinion will touch upon each Subpart in the proposed
1
Public comments 49 and 50 are date—stamped December
1,
1989,
one day after the close of
the public comment period.
However,
those comments were received at the Board on November
30, but are
date-stamped December 1 because they were received after 4:30 p.m.
(See
35
Ill.
Adra.
Code
101.102(b).)
Those
comments
were
accompanied by motions to file instanter,
which are granted.
10R~~12r)
2
rules, but will only discuss those rules which were the subject of
comments and those rules which have been revised.
PART 102--REGULATORY AND INFORMATIONAL HEARINGS
AND PROCEEDINGS
Subpart A:
General Provisions
The
only
change
to
this
Subpart
is
a
revision
to
the
definition
of
“undue
delay”
in
Section
102.101.
The
Board
has
deleted the phrase
“or
is more
delay
than
necessary”
from that
definition.
This change
is made
in response to a suggestion from
the Illinois Environmental Protection Agency (Agency)
(P.C.
~ 48),
who felt that the language of the definition assumed that delay
is
always part
of
a regulatory
proceeding,
and
suggested
that
the
Board add the language “unnecessary or which impedes
expeditious
rulemaking”.
In response, the Illinois Steel Group
(ISG) commented
that while expeditious rulemaking
is a worthy goal, that goal must
be balanced against the need for a fair process which provides due
process.
(P.C.
~ 50.)
The Board did not intend to imply that
it
considered delay a part of the rulemaking process, but agrees with
the
ISG
that
the
goal
of
quick
rulemaking
is
not
the
only
consideration.
The Board believes that the revised definition of
“undue delay” reflects both concerns.
Several
commenters
asked
why the definition
of
“proponent”
excluded
the
Board
and
its
staff,
whether
the
Board
no
longer
intends
to
propose
rules,
and what
procedures
the
Board
would
follow when proposing a rule itself.
As stated at the November
9,
1989 hearing,
one of the reasons for exempting the Board from the
definition of
“proponent”
is that some of the requirements which
a proponent must fulfill are simply not applicable
to the Board.
For
instance,
Section
102.121(c)
requires
all
proponents
to
recommend
whether
an
economic
impact
study
(EcIS)
should
be
performed.
Since the Board determines whether an EcIS should be
done,
it would
be
inappropriate
to
require
the
Board
to make
a
recommendation
to itself.
Additionally,
in the rare cases where
the Board
does propose
a regulation,
there
is
a written
opinion
which provides much of the information that
a proponent would be
required to furnish under the proposed rules.
There is also often
a supporting technical document which is added to the record of the
proceeding,
so that material
is
available
in advance
of hearing.
It
must
be
remembered
that
the
Board
is
not the
primary
rule
proponent for the state,
and
is neither funded nor staffed
so as
to
allow
it
to
always
comply
strictly
with
the
requirements
established
for those who,
in the ordinary course
of events,
are
proponents.
When the Board finds
it necessary to propose rules
itself,
it
will
comply
with
the
requirements
for
any
other
proponent
to
the
extent
logical
and
possible.
It
is
not
the
Board’s
intent
to
exempt
itself
from providing
support
for the
rules
it proposes.
lflS—126
3
The Agency suggested that detailed requirements for obtaining
a waiver
from the requirements
of
this Part be
added to Section
102.103 “Waiver Of Requirements”.
(Tr.
554-555.)
The Board has not
done so, since it believes that the standard in that Section
(that
a person demonstrate that
a non—statutory requirement creates
an
undue burden)
is sufficient to require it
(the Board)
to consider
all aspects of a request for waiver.
The Board specifically states
that
it
does
not
intend
to
grant
requests
pursuant
to
Section
102.103 except
in exceptional circumstances.
Subpart B:
Regulations of General Applicability
The
Board
has
made
only
one
change
to
this
Subpart.
Subsection
(i)
of Section 102.121
“Contents”
has been revised
to
clarify that when any information required by the Section is either
inapplicable or unavailable,
the proponent mus’t supply a complete
justification
for that inapplicability
or
unavailability.
This
change was made
in response to an Agency suggestion.
(Tr.
558.)
The Agency
suggested
several
specific revisions
to Section
102.121
which
the
Board
has
not
made.
The
Agency
felt
that
subsection
(b),
which requires
a statement of
reasons supporting
the proposal, including a technical and economic justification,
is
duplicative and should be deleted.
The Agency stated that economic
analysis is required by subsection
(c), and that technical analysis
is
required
by
subsection
(d).
(Tr.
555.)
The Board does
not
agree.
The requirements of subsection
(b)
go beyond economic and
technical analysis, and include a statement of the facts supporting
the
proposal,
a
statement
of
the
purpose
and
effect
of
the
proposal,
and
a discussion
of
the applicable
factors
listed
in
Section
27(a)
of
the
Environmental
Protection
Act
(Act).
Ill.Rev.Stat.
1987,
ch.
111 1/2.
par.
1027(a).
The Board does not
believe
that
subsection
(d),
which
requires
a
synopsis
of
all
testimony
to
be
presented
by
the
proponent
at
hearing,
is
sufficient to inform the proponent of what exactly
is required
in
support
of
a proposal.
The Agency also suggested that the Board
revise
subsection
Cc)
to
require
the
EcIS
recommendation
to
address,
to
the
extent
reasonably
practicable,
the
questions
contained
in
the Analysis
of
Economic
and
Budgetary
Effects
of
Proposed Rulemaking,
1
Ill.
Adm.
Code 220.Exhibit
B.
The Agency
maintains that
it
is often not
in possession
of this
information
at
the
beginning
of
the
proceeding.
(Tr.
556.)
The
Board
sympathizes,
since
it
has
often
struggled
with
this
form,
but
believes that the changes to subsection
(1) will allow a proponent
to provide the information
it does have and explain any missing
information.
Finally, the Agency suggested that the Board should
take
official
notice
of
some
material
to
be
incorporated
by
reference
which
is
voluminous
and
already
in
the
Board’s
possession,
instead
o.f requiring that the proponent submit copies
pursuant to subsection
(f).
(Tr.
557.)
Because the Board must
maintain
accessible
copies
of
all
materials
incorporated
by
reference, the Board will not narrow the requirements of subsection
inS--127
4
(f).
See Section 6.02 of the Illinois Administrative Procedure Act
(APA),
Ill.Rev.Stat.1987,
ch.
127,
par.
1006.02.
If
a proponent
knows that
a specific document which
it wishes to
incorporate by
reference
is already in the Board’s possession,
he may move for a
waiver of subsection
(f), pursuant to Section 102.103.
At hearing,
the
ISG
asked
for clarification
of
subsection
(d) ‘s
requirement that the proponent
provide
a synopsis
of
all
testimony to be presented by the proponent at hearing: whether
a
synopsis of each witness’ testimony is required, how detailed must
it
be,
and
whether
any
determination
will
be
made
as
to
completeness.
As stated
in the Board’s August
31,
1989
second
first
notice
opinion,
the proponent
need not
identify
specific
witnesses, but must provide a summary of the information which will
be presented at hearing
in support
of the proposal.
Although
a
specific
witness
need
not
be
identified,
the
synopses must
be
geared
to
individual
witnesses.
For
example,
if
a
proponent
expects to present one witness on economic impact and two witnesses
on technical considerations, the proposal should include a synopsis
of the testimony of each of those witnesses.
The synopsis must be
as detailed as possible,
so that the Board and other participants
will
have
a
general
idea
of
the supporting
testimony
when
the
proposal
is filed.
Any determination of the completeness
of the
synopses will be done by the Board pursuant to Section 102.l60.2
Another
issue
raised
in
the
course
of
this
proceeding
is
whether
the
Board
should
continue
its
prior
practice
of
occasionally
allowing
the proposal
of
a
site—specific rule
(or
rules)
in
a general rulemaking proceeding.
In its comments, the
ISG
contends
that
Section
27(a)
of
the
Act
specifically
contemplates such action, and that in some circumstances it is more
efficient
to
create
a
site-specific
rule
during
a
general
rulemaking
than
to
force
participants
to
open
dockets
for
variances,
adjusted
standards,
and
site—specific
rules.
In
response,
the Agency maintains that carving
out exceptions
in
a
rule of general applicability will sometimes call into question the
rule’s federal approvability.
The Agency argues that such a risk
is not necessary,
since
options such as an adjusted standard
or
site—specific proceeding
are
available.
After
reviewing
these
comments,
the Board
will
continue with
its
existing
policy
of
sometimes allowing for proposal
of a site—specific rule during a
general rulemaking, where circumstances are appropriate.
The Board
notes,
however, that the issue of federal approvability will be a
consideration
in
deciding whether
to
allow
proposal
of
a site-
specific in a general rulemaking.
2
The Board notes that a proponent will have an opportunity to
update the testimony,
and must identify witnesses, when he or she
submits the required pre-filed testimony
21 days before hearing,
pursuant to Section 102.280.
108—12S
5
Subpart
C:
Site—Specific Regulations
The
Board
has
made
only
clarifying
changes
to
Subpart
C.
Subsection
(a) of Section 102.141 “Contents” now states that where
a proponent
seeks
exemption
from
or
modification
of
a
rule
of
general applicability, the proposed site-specific rule may not be
proposed as an amendment to that general rule.
Instead, the site—
specific rule must be proposed as its own section.
Additionally,
subsection
(g)
has been revised
to conform with
revised
Section
102.121(i),
regarding unavailable or inapplicable information.
The Agency suggested several non—substantive
changes to this
Subpart,
such as deleting Section 102.141(b)
as already contained
in
Section
102.121,
and combining Sections
102.122
and
102.142,
which both deal with dismissal.
The Board has not done so, because
Subparts B and C are separate and distinct subparts.
The proponent
of
a
site-specific
rule
need
not
comply
with
any
of
the
requirements
of
Subpart
B,
except
as
specifically
required
in
Subpart C.
Therefore, Subpart C must be complete in and of itself.
The Illinois Environmental Regulatory Group
(IERG)
believes
that
the
content
requirements
of
Section
102.141
are
overly
detailed and elaborate,
and make it very difficult for a company
to file an acceptable site-specific proposal with the Board.
(P.C.
#46.)
IERG suggests that a statement be included in the rules that
the Board will construe the content requirements
liberally.
The
Board has not done so for two reasons.
First, the Board does not
agree
that
the
content
requirements
are
“overly
detailed
and
elaborate”.
The Board believes that the requirements
of Section
102.141 are fair representations
of what must be
included
in the
record of all site-specific rule changes.
It must be remembered
that a site—specific rule proposal generally seeks
to
exempt an
individual
company
or
municipality
from
a
more
stringent
rule.
Thus,
the proponent
of
a
site-specific
does
have
a
burden
of
providing sufficient information for the Board to be able to make
an informed and reasoned decision.
Second, the Board believes that
the waiver
provision
of
Section
102.103,
combined
with
Section
102.141(g),
will allow the proponent
of a site-specific rule who
has good reason for an inability to fulfill a given requirement to
explain that situation.
IERG also contends that the detail required for site-specific
petitions
is
another
way
to
limit
access
to
Board
rulemaking
procedures and increase the cost to
industry of making proposals
to the Board.
The Board does not agree.
To
the
contrary,
the
Board
finds
that
by
informing
all
potential
proponents
and
participants
of exactly what
is required to
support
a
proposal,
that information will be provided “up front”,
instead of requiring
a series of additional submissions during a rulemaking.
The need
for
additional
hearings
and
comment
periods
will
be
greatly
reduced, saving money and time for the proponent, participants, and
the Board, and the state in general.
The Board specifically finds
los—
I :1o
6
that these content requirements do not limit access to the Board,
but simply help the proceeding run more smoothly.
A related issue to the content requirements for site—specific
rule proposals
is
whether the
Board
should
promulgate
detailed
additional requirements for site-specifics according to media.
As
the Board stated in its August 31, 1989 opinion, the Board decided
not
to
proceed
with
specific
rules
for site—specific
petitions
dealing with water,
air,
land,
or groundwater.
This decision was
based on the Board’s findings that Section 102.141 will address the
most common information problems in site—specific proposals,
and
that
some
of
the requirements
previously
set
forth
were
indeed
overly detailed for many proposals.
The Agency objects
to
this
decision, and urges the Board to reconsider and add rules for site—
specifics by media.
On the other hand,
IERG supports the Board’s
decision.
After
further
consideration,
the
Board
will
not
add
media—specific
rules.
If
a proposal does
not contain sufficient
information
for proper evaluation
of that proposal,
the missing
information can be required by a more information order, just like
any proposal of rules of general applicability.
If the information
is not provided, the proposal
is subject to dismissal pursuant to
Section
102.142.
The Board
fails
to see why the proponent of a
site-specific rule
should be
required to always provide
certain
information
by
media, when
no suggestion has been made that the
Board
establish
media—specific
content
rules
for
proposals
of
general
applicability.
The
Board
continues
to
believe
that
specific information required in a given proceeding can be acquired
through the use of Board and hearing officer orders geared to that
proceeding.
Subpart
D:
Authorization,
Scheduling,
And Notice Of Hearings
Section 102.161 “Scheduling Of Hearings” has been revised to
provide that the hearing officer, rather than the Board, will issue
an
order
preliminarily
specifying
the
number
of
hearings
on
a
proposal.
Motions to exceed that number are to be directed to the
hearing officer, either orally
(but only at hearing) or in writing.
The movant must show that he or she would suffer material prejudice
if an additional hearing was not held.
The movant must also show
due diligence
in
its prior participation
in the proceeding,
and
that an additional hearing rather than the opportunity to present
public comment
is necessary.
These changes were made
in response
to comments by ISG,
IERG, and the Agency.
The Board believes that
the
revisions
will
provide
flexibility
in
each
rulemaking
proceeding, and will cut down on the delay which would necessarily
occur
if motions for additional hearing had to be
in writing and
directed to the Board.
ISG also suggested that the rule address
a
situation
where
the
proposal
is
“significantly”
amended,
by
providing at least two more hearings when this happens,
and that
the
rule
should
allow
some
minimum
number
of
hearings
for
the
participants,
to
avoid
a
situation
where
the
proponent
might
consume all of allocated days of hearing.
The Board has not made
108—1.30
7
those suggested
changes,
because
it
believes that the provision
allowing the Board
or the hearing
officer to schedule additional
hearing(s)
will
satisfy those concerns raised by
ISG.
The Board
cannot foresee any situation where it would proceed to decision on
a proposal after allowing only the proponent to state its case at
hearing.
Subpart
E:
Economic Impact Study Determinations
The Board did not make any changes to this Subpart.
The major
issue raised by commenters
in connection with EcIS determinations
is whether economic considerations, and thus the issue of whether
to
request
an
EcIS,
should
be
an
issue
in
a federally
required
rulemaking pursuant to Section 28.2 of the Act.
The United States
Environmental Protection Agency
(USEPA)
maintained
that economic
impact studies are not appropriate for federally required rules,
and
stated
that
if
a
rule
is
federally
required,
it
should
be
adopted within the specified federal time frame irrespective of any
possible economic impacts.
USEPA asserts that “the
applicability
of
economic
impact analysis
is
irrelevant
in
federally
mandated
rulemakings,
and.
.
.this
distinction should
be
incorporated
into
these rules.”
(P.C.
#43,
p.
2.)
The Agency took a middle ground,
arguing that although an EcIS and hearing are appropriate in some
federally required rulemakings,
there may well be cases where the
Board will
have
little,
if
any,
ability
to
modify the proposed
regulation
in order to adopt a rule which fully meets federal law.
In that case,
the Agency contends that an EcIS and hearing should
not be conducted.
(P.C.
#48.)
In
response
to
the positions
articulated by USEPA
and
the
Agency,
ISG,
IERG,
and
James
T.
Harrington
presented
their
contention that the Act does not allow the Board to dispense with
the EcIS determination requirements set
forth
in Section
28.2
of
the Act and in the proposed rules
in Subpart
E.
These commenters
argued that nothing
in Section 28.2 or in the legislative history
of the amendments
to the Act which allow the Board
to make
EelS
determinations
(P.A.
85—1048)
supports
the positions
of
either
USEPA or the Agency.
(P.C.
#
46,
49,
& 50.)
After review of the arguments presented by all commenters, the
Board
finds
that
it
is
obvious
that
it may order
an EcIS
in
a
federally required rulemaking, consistent with the requirements of
Section 28.2.
If the Board were to accept USEPA’s claim that an
EcIS
is never appropriate
in a federally required rulemaking,
the
Board would have
to
ignore the provisions
of Section 28.2 which
require the Board to make an EcIS determination within
60 days of
the Board’s acceptance of a proposal for a federally required rule,
and require the Department
of
Energy and Natural
Resources
(ENR)
to perform
an EcIS within
six months.
Those provisions
clearly
allow,
and
indeed
require,
the
Board
to
at
a
minimum
make
its
determination as to whether an EelS should be performed in
a given
rulemaking.
The Board refuses to ignore those requirements.
105—I ~l
8
Subpart
F:
Certification Of Required Rules
The only revision made
to this
Subpart
is
the addition
of
subsection
(d)
to Section 102.202 “Board Determination”.
The new
subsection provides that Board orders ruling upon any objection to
an Agency certification that proposed rule
is
federally required
are interlocutory
in nature and may be
appealed only pursuant to
35 Ill. Adm. Code 101.304.
This subsection was inadvertently left
out of the second first notice order,
and
is based upon proposed
Section 102.183.
Both the Agency and USEPA have taken the position that this
Subpart should be deleted entirely.
They argue that there
is no
statutory
authority
for
the
Board
to
entertain
or
rule
upon
challenges to an Agency certification, and that the procedure could
further delay the regulatory process.
On the other hand,
IERG and
ISG contend that this procedure
is necessary and consistent with
Section 28.2 and the Board’s ultimate rulemaking authority.
IERG
maintains,
however, that the time periods established
in which to
challenge an Agency certification are much too short, since it may
be difficult for a potential objector to learn of the Board’s order
accepting
the
proposal
for hearing
and
file
a
challenge
which
contains all of its arguments within the 21 days allowed by Section
102.201.
ISG argues that the burden of proof that a proposed rule
is federally required should be upon the Agency,
instead
of upon
the objector,
as the proposed rule provides.
The Board finds
that
it has the authority
to entertain and
rule upon
challenges
to
an
Agency
certification
of
a
federally
required rule.
Although Section 28.2 does not specifically allow
the Board to take such action,
that section does not bar the Board
from
doing
so,
nor
does
the
section
provide
that
an
Agency
certification
is
dispositive.
The Board’s
general
authority to
promulgate
regulations,
conduct
its own proceedings,
and review
Agency
“determinations”
allow
the
Board
to
review
the
Agenc~
certification.
See
Sections
5(d),
27,
and
28
of
the
Act.
However,
the
Board will
not extend
the time
frames
for
such
a
challenge.
As the Board noted in its August 31 second first notice
opinion,
it
is
aware
that
the
time
frames
are
very
tight.
Nevertheless, because Section 28.2 requires that Board to publish
first notice of
all required
rules
in
the Illinois Register
no
later than
six months from the date the
Board determines whether
an EelS should be prepared,
it is very important that any question
as to whether
a proposal
is federally required be resolved at the
The Board today reached the same conclusion on the issue of
whether
the
Board
may
review
an
Agency
certification
that
a
proposed
rule
is
federally
required
in
RACT
Deficiencies--
Amendments to 35 Ill.
Adm. Code Parts 211 and 215, R89—l6, February
8,
1990.
1o8—~132
9
beginning of a proceeding.
As to ISG’s assertion that the burden
of proof should be on the Agency, the Board believes that
it is up
to the objector to prove the substance of his claim,
as is the case
for any movant.
Subpart
G:
Authority Of Hearing Officer
The
only
revision
to
this
Subpart
is
the
addition
of
the
phrase
“and
this
Part”,
to
subsection
(1)
of
Section
102.220
“Authority Of Hearing Officer.
Subpart H:
Pre—Hearing Conferences
Subsection
(c) of Section 102.242 “Pre-hearing Order” has been
revised’ to
clarify
that
only
the participants
in
a pre-hearing
conference,
not participants
in general, will be
involved in the
preparation
of
an
order
setting
forth
the
substance
of
any
agreements
reached at
a pre—hearing conference.
This
change
is
made
in response to a question from ISG.
(Tr.
514—517.)
Subpart
I:
Motions And Discovery
No changes were made to this Subpart.
Subpart J:
Regulatory Hearings
Just one change was made to this Subpart.
At the Agency’s
suggestion,
a
sentence
has
been
added
to
Section
102.284
“Questioning
Of
Witnesses”
to
state
that
the
Board
will
not
consider as substantive evidence any unsworn information which
is
presented
in the
form
of
a
question during
questioning
of
any
witness.
The Board received quite a bit of comment on Section 102.280
“Pre-hearing Submission Of Testimony And Exhibits”.
USEPA and the
Agency argue that all participants
should always be required to
pre-file testimony,
not just the proponent.
The Agency contends
that
required
pre-filing
for
all
participants
is
a
necessary
element of the streamlining of the rulemaking process.
The Agency
suggests
that
if
it,
by
motion,
can
demonstrate
that
it
has
provided
adequate
opportunity
for review
and
comment
upon
its
proposal
before
the
proposal
is
filed
with
the
Board
(through
workshop sessions and
mailings)
,
the
Board
shall
enter
an
order
mandating pre-filing by all participants.
The Agency alleges that
a failure to require pre—filing
in such a situation gives an unfair
advantage
to
the
participants,
as
well
as
obstructing
the
efficiency of the regulatory process.
IERG and ISG,
on the other hand, support the rule as proposed.
IERG
notes
that
the
proposed
rule
gives
the
hearing
officer
authority
to
require
pre-filing
by
participants
as well
as
the
proponent,
and contends that
that
is
a much preferred
method of
103—1 33
10
handling the problem.
IERG further submits that there
is no way
that the Agency can demonstrate to the Board that it has contacted
all industry which might possibly be affected by the proposal.
ISG
also maintains that there are practical problems with the Agency’s
suggestion, including a complex or poorly drafted proposal,
or the
possibility
of
an
amended
proposal.
ISG
also
contends
that
regardless of whether the Board adopts the Agency’s suggestion, the
rule should guarantee the allowance of a minimum preparation time,
such as
21 days,
between the receipt
of the most recent proposal
and any required pre—submission of testimony.
The Board
continues
to believe,
as stated
in
the August
31
second first notice opinion, that the proposed rule will result in
efficient hearings while allowing the Board and the hearing officer
to
conduct proceedings
in
response
to
the circumstances
of
the
individual proceeding.
The Board believes
that this scenario
is
much more efficient and reasonable than strict requirements which
could actually slow a proceeding down.
The Board has not adopted
the Agency’s suggestion because the practical problems associated
with
it
could
well
overwhelm
a
proceeding
and make
procedure,
rather than
the substantive
issues
raised by
the proposal,
the
focus of the proceeding.
As the Board has stated repeatedly, the
Board
strongly
believes
that
pre—submission
of
testimony
and
exhibits
by
all
participants
is
important.
It
is
the
Board’s
intent that the hearing officer require all participants to pre-
submit their testimony pursuant to subsection
(b)
in the majority
of cases,
and that the hearing officer take all possible steps to
assure that
no proponent or participant
is taken
by
surprise by
another participant’s testimony.
The Board also notes that issues
which are raised at one hearing may be
responded to
at another
scheduled hearing.
The Board specifically
states,
however,
that
the rules will not be used to bar spontaneous citizen participation
at hearing.
The Board merely feels that it
is important that the
procedural rules retain as much flexibility as possible.
For the
same reason,
the Board has not adopted ISG’s
suggestion that the
rule provide a minimum preparation time for pre—submissions.
While
the Board and its hearing officers strive to give all participants
as much preparation time as possible, the establishment of such
a
rule would remove the flexibility which is absolutely necessary to
efficient and fair rulemaking.
The
Agency
also
commented
on
subsection
(f)
of
Section
102.280, which permits the hearing officer to allow modifications
to pre-filed testimony under certain circumstances.
The Agency is
concerned that the wording of the sentence would limit or eliminate
rebuttal testimony or revisions to initially-filed testimony to be
presented
at
a
future
hearing.
The Agency
thus
suggested
that
modifications
to
pre—submitted
testimony
should
be
allowed
if
accompanied
by
an
“adequate
explanation”.
The
Board
does
not
believe that the rule as proposed limits rebuttal testimony in any
way:
the rule merely
refers to modifications to
testimony pre—
submitted for direct presentation at a given hearing.
1)3—
134
11
The Agency proposed substantial additions to Section 102.284
“Questioning
of
Witnesses”,
which
the
Agency
contends
is
too
general
and does
not provide sufficient guidance
to the hearing
officer
to
eliminate
abusive
cross—questioning
practices.
In
response,
ISG
maintains
that
the
Agency’s
suggestions
could
prohibit
long-standing
Board
practices
such
as
the proposal
of
alternative
language
at
hearing
and
then
the
questioning
of
a
witness
about
that
language.
The
Board
has
not
adopted
the
Agency’s suggestions, because it believes that the rule establishes
sufficient limitations on questioning.
Subpart K:
Economic Impact Hearings
The
only
revision
made
to
this
Subpart
is
a
reference
to
Section
28 of the Act in Section 102.300 “Hearings On The Economic
Impact Study Of New Proposals”.
Subpart
L:
Public Comments
The
Board
has
added
language
to
Section
102.320
“Public
Comments”
to specify that all public comments must be served upon
the Agency,
ENR,
the Attorney General
(if a participant), and the
proponent,
as
well
as
on the participants
on
any service
list
established
by
the
hearing
officer.
The Sanitary
District
of
Rockford
suggested
that
a
minimum
of
120
days
be
provided
for
comment
on
all
technical
rules,
to
allow
comprehensive
consideration of the proposed rules and their effects.
(P.C.
#41.)
While
the
Board
appreciates
the difficulties
with
reviewing
a
technical
proposal
and providing
thorough comments
in
a
limited
amount
of
time,
the
Board
simply
cannot allow
four months
for
comment
on all
rules.
Again,
as much
time as
possible will
be
provided, but the need for flexibility in the procedural rules will
not allow a set comment period for every rulemaking.
There were several suggestions that the Board or its hearing
officer
notify
all participants
when
the
hearing
transcript
is
received,
since
the
time
for
public
comments
begins
when
the
transcript
is
received
in
the Board’s
office.
As
discussed
at
hearing, such notification will not be done.
Because the Board’s
contract
with
its
court
reporting
service
specifies
when
the
transcript is due,
the hearing officer will always be able to give
participants a good idea of when the transcript will be received.
Participants can then easily verify that the transcript actually
was received by calling the Clerk’s Office.
As a practical matter,
the
hearing
officer
almost
always
sets
a
date
certain
as
the
deadline for comments,
so the situation will rarely arise.
Subpart M:
Board Action
Only small
revisions have been
made to this
Subpart.
In
subsection
(b)
of
Section
102.343
“Second
Notice
Of
Proposed
10
~
—
1 3 5
12
Regulations”, the word “substantive” has been added.
Finally, the
word
“may”
has
been
changed
to
the
word
“will”
in
Section
102.347(a)
“Adoption Of Peremptory Regulations”.
Subpart N:
Notions For Reconsideration And Appeal
The Board made no changes to this Subpart.
PART 106--HEARINGS PURSUANT TO SPECIFIC RULES
No
changes
were
made
to
the
non—substantive
revisions
of
Sections
106.415,
106.506,
106.602,
and
106.604.
In
order
to
conserve resources, these sections are not reprinted in the order
adopted today.
ORDER
The Board hereby proposes the following amendments for second
notice,
which
are
to
be
filed
with
the
Joint
Committee
on
Administrative Rules.
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
102.101
Definitions
102.102
Types Of Regulatory Proposals
102.103
Waiver Of Requirements
102.104
Other Proceedings
SUBPART B:
REGULATIONS OF GENERAL APPLICABILITY
Section
102.120
Proposal
102.121
Contents
102.122
Dismissal
102.123
Proposal Of RCRA Amendments
SUBPART
C:
SITE-SPECIFIC REGULATIONS
Section
102.140
Proposal
102.141
Contents
102.142
Dismissal
103—135
13
SUBPART D:
AUTHORIZATION,
SCHEDULING, AND NOTICE OF HEARINGS
Section
102.160
102.161
102. 162
102. 163
Section
Section
102.200
102.201
102.202
Authorization Of Hearing
Scheduling Of Hearings
Notice Of Hearing
Notice Of Site-Specific RCRA Proposals
SUBPART
E:
ECONOMIC IMPACT STUDY DETERMINATIONS
SUBPART
F:
CERTIFICATION OF REQUIRED RULES
Agency Certification
challenge To Agency Certification
Board Determination
SUBPART
G:
AUTHORITY OF HEARING OFFICER
Section
102.220
102.221
102.222
Section
102.260
102.261
102.262
Section
102.280
102.281
102.282
Authority Of Hearing Officer
Notice And Service Lists
Effect Of Hearing Officer Ruling
SUBPART
H:
PRE-HEARING CONFERENCES
Initiation And Scheduling
Purpose
Pre-hearing Order
SUBPART
I:
MOTIONS AND DISCOVERY
Motion Practice
Production Of Information
Subpoenas
SUBPART
3:
REGULATORY HEARINGS
Pre-hearing Submission Of Testimony And Exhibits
Transcript
Admissible Information
102.180
102.181
102
.
182
102.183
Board Determinations
Request For Determination
Basis For Board Determination
Notice Of Board Determination
Section
102.240
102.241
102.242
108—137
14
102.283
Presentation Of Testimony
102.284
Questioning Of Witnesses
102.285
Record For Decision
SUBPART K:
ECONOMIC IMPACT HEARINGS
Section
102.300
Hearings On The Economic Impact Study Of New Proposals
102.301
Hearings On The Economic Impact Study Of Existing
Regulations
SUBPART
L:
PUBLIC COMMENTS
Section
102.320
Public Comments
SUBPART M:
BOARD ACTION
Section
102.340
Revision Of Proposed Regulations
102.341
Adoption Of Regulations
102.342
First Notice Of Proposed Regulations
102.343
Second Notice Of Proposed Regulations
102.344
Notice Of Board Final Action
102.345
Adoption Of Identical
In Substance Regulation
102.346
Adoption Of Emergency Regulations
102.347
Adoption Of Peremptory Regulations
102.348
Adoption Of Temporary Regulations
SUBPART N:
MOTIONS FOR RECONSIDERATION AND APPEAL
Section
102.360
Filing Of Motion For Reconsideration
102.361
Disposition Of Motions For Reconsideration
102.362
Correction of Publication Errors
103.363
Appeal
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
(Ill.
Rev.
Stat. 1987 and 1988 Supp.,
ch.
111½,
pars.
1005,
1007.2,
1013(c),
1013.3,
1017.5,
1022.4(a),
1022.4(d),
1022.7(d),
1027,
1028,
1028.2,
1029,
and
1041)
and
Section
4 of “AN ACT in relation to natural resources,
research,
data collection and environmental studies”
(Ill.
Rev.
Stat.
1987
and 1988
Supp.,
ch.
96½,
par.
7404)
and authorized by Section 26
of
the
Environmental
Protection Act
(Ill.
Rev.
Stat.
1987,
ch.
111½,
par.
1026).
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. Peg.
8357;
amended in P84—10 at 9
Ill.
Peg.
1398, effective January 16,
1985;
108-133
15
Part repealed, new Part adopted in P88-5(B)
at
______
Ill. Peg.
_______________
effective
______________________
NOTE:
Capitalization denotes statutory language.
SUBPART A:
GENERAL PROVISIONS
Section 102.100
Applicability
This Part applies to all regulatory and informational hearings and
proceedings,
and shall
be
read
in conjunction with
35
Ill.
Adm.
Code 101.
Hearings conducted pursuant to this Part shall be quasi-
legislative in nature.
All testimony shall be sworn.
All persons
taking part in these hearings are participants, rather than parties
as in contested cases.
Section 102.101
Definitions
The following definitions shall apply to this Part:
“Act” means the Environmental Protection Act (Ill.
Rev.
Stat.
1987,
ch.
ill 1/2,
par.
1001 et seq.).
“Agency”
means
the
Illinois
Environmental
Protection
Agency.
“APA”
means
the
Illinois Administrative
Procedure
Act
(Ill.
Rev. Stat.
1987,
ch.
127,
par.
1001 et seq.).
“Attorney
General”
means
the
Office
of
the
Attorney
General
of the State of Illinois.
“Board” means the Illinois Pollution Control
Board.
“Chairman” means the Chairman of the Board.
“Clerk” means the Clerk of the Board.
“Document” means pleading,
notice,
motion,
affidavit,
memorandum,
brief,
petition,
or other paper required or
permitted to be filed.
“DNS” means the Illinois Department of Nuclear Safety.
“Economic impact study” means the economic impact study
performed by ENR pursuant
to Board determination under
Section 27 of the Act.
“ENR” means the Illinois Department of Energy and Natural
Resources.
“Fire
Marshal”
means
the
Office
of
the
State
Fire
~fl5_i
31)
16
Marshal.
“Identical. in substance regulations” means STATE
REGULATIONS WHICH REQUIRE THE SANE ACTIONS WITH PESPECT
TO PROTECTION
OF THE ENVIRONMENT,
BY THE SANE GROUP
OF
AFFECTED
PERSONS,’ AS WOULD FEDERAL REGULATIONS
IF THE
UNITED
STATES
ENVIRONMENTAL
PROTECTION
AGENCY
ADMINISTERED THE SUBJECT PROGRAM IN ILLINOIS.
(Section
7.2 of the Act.)
“Identical
in substance rulemakings” are those
proceedings conducted pursuant to specific authorization
of the Act,
including but not limited to Sections 13(c),
13.3,
17.5,
22.4(a),
22.4(d)
and 22.7(d).
“JCAP” means the Joint Committee on Administrative Rules.
“Material” means relating to any substantive issue that
is of consequence to the determination of a proceeding.
“Participant” means any person,
not including the Board
or its staff but including the proponent, 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,
but not limited
to,
filing
a comment, being added to the notice list of a particular
proceeding or testifying at hearing.
“Peremptory rulemaking” means ANY RULEMAKING WHICH
IS
REQUIRED AS A RESULT OF FEDERAL LAW, FEDERAL RULES AND
REGULATIONS,
OR AN ORDEP
OF A COURT,
UNDER CONDITIONS
WHICH
PRECLUDE
COMPLIANCE WITH THE
GENERAL RULEMAKING
REQUIREMENTS
OF
SECTION
5.01
OF
THE
APA
AND
WHICH
PRECLUDE THE EXERCISE BY THE BOARD AS TO THE CONTENT OF
THE RULE.
(Section 5.03
of the APA.)
“Person” means any entity defined in Section 3.26 of
the
Act,
including
but not limited to any
individual,
partnership, company, corporation, political subdivision,
or state agency.
“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.
“PCRA” means the Resource Conservation and Recovery Act
of 1976
(42 U.S.C. 6901 et seq.).
“RCRA rules” means 35 Ill.
Adm. Code 702, 703, 720,
721,
722,
723,
724,
725,
726,
and 728.
108—141)
17
“Relevant” means having any tendency to make the
existence
of
any
act
that
is
of
consequence
to
the
determination
of the proceeding
more probable or
less
probable that it would be without the information.
“Required rule”
means
a rule that is
NEEDED TO FULFILL
THE
REQUIREMENTS
OF
THE
FEDERAL
CLEAN
WATER
ACT
(33
U.S.C. 1251 ET SEQ.), SAFE DRINKING WATER ACT,
(42 U.S.C.
300f ET SEQ.),
CLEAN AIR ACT
(42 U.S.C.
7401
ET SEQ.),
OP RESOURCE CONSERVATION
AND
RECOVERY ACT (42 U.S.C. 6901
ET SEQ.)
OTHER THAN A RULE TO BE ADOPTED UNDER SECTION
13(c), 13.3,
17.5, 22.4(a),
22.4(d)
,
OP 22.7 OF THE ACT.
(Section 28.2 of the Act.)
“Site—specific
regulation” means
a proposed or adopted
regulation
SPECIFIC
TO
INDIVIDUAL
PERSONS
OR
SITES.
(Section 27(a)
of the Act.)
“Undue
delay”
means
delay
which
is
unwarranted,
unjustified,
or improper.
“USEPA” means the United States Environmental Protection
Agency.
Section 102.102
Types Of Regulatory Proposals
a)
The Act provides for three types of regulatory proposals:
1)
Identical
in
substance rulemakings,
as defined
in
Section 102.101;
2)
Federally
required
rules,
as
defined
in
Section
102.101; and
3)
Other
regulatory
proposals,
both
of
general
applicability and not of general applicability.
b)
Regulations arising from these types of proposals may be
adopted through four types of rulemaking:
1)
General rulemaking pursuant to Section 5.01 of the
APA and Sections 26 and
27 of the Act;
2)
Emergency rulemaking pursuant to Section 5.02 of the
APA and Section 27 of the Act;
3)
Peremptory rulemaking pursuant
to Section
5.03
of
the APA; and
4)
Temporary rulemaking pursuant to
Section
27(b)
of
the Act.
1081/41
18
c)
The provisions
of
Subpart
B of
this Part apply
to all
types
of
regulatory
proposals
except
identical
in
substance proposals.
Section 102.103
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.
Section 102.104
Other Proceedings
The
Board may conduct
such
other
noncontested
or
informational
hearings as may be necessary to accomplish the purposes of the Act.
SUBPART
B:
REGULATIONS OF GENERAL APPLICABILITY
Section 102.120
Proposal
Any person may
submit
a regulatory
proposal
for
the
adoption,
amendment,
or repeal of a regulation.
The original and nine
(9)
copies of each proposal shall be filed with the Clerk and one copy
each with the Attorney General, the Agency and ENR.
Section 102.121
Contents
Each proponent shall provide:
a)
The
language of the proposed regulation
or amendment,
including
an identification
of the existing regulatory
language proposed to be
amended
or
deleted.
Language
being
added
shall
be
indicated
by
underscoring
and
language
being
deleted
shall
be
indicated
by strike-
outs.
The proposed rule shall be drafted in accordance
with
1 Ill. Adm. Code lOO.Subpart
C;
b)
A
statement
of
the
reasons
supporting
the
proposal,
including
a
statement
of
the
facts
which
support
the
proposal,
and
a statement
of the purpose and effect of
the proposal.
The statement shall discuss the applicable
factors listed in Section
27(a)
of the Act.
Where the
proposal
covers
more
than
one
substantive
point,
the
statement of reasons shall include statements in support
of each point.
The statement of reasons shall
include
a technical and economic justification for the proposal;
c)
Pursuant to Section
27 of the Act, A RECOMMENDATION
OF
WHETHEP
AN
ECONOMIC
IMPACT
STUDY
IS
ADVISABLE.
The
recommendation shall describe,
TO THE EXTENT REASONABLY
PRACTICABLE,
THE
UNIVERSE
OF
AFFECTED
SOURCES
AND
FACILITIES AND THE ECONOMIC IMPACT OF THE PROPOSED RULE.
100—142
19
The
recommendation
shall
also
address
the
questions
contained
in
the
Analysis
of
Economic
and
Budgetary
Effects of Proposed Rulemaking, set forth at
1 Ill. Adm.
Code 220.Exhibit
B,
and identify issues to be addressed
by any economic impact study;
d)
A
synopsis
of
all
testimony
to
be
presented
by
the
proponent at hearing;
e)
If
the
Agency
is
the
proponent,
and
if
the
Agency
believes
that
the
proposed
rule
is
a
required
rule
pursuant
to
Section
28.2
of
the
Act,
citation
to the
specific section
of the specific federal
act;
f)
Copies
of
any
material to be incorporated by reference
within the proposed regulation pursuant to Section 6.02
of the APA;
g)
Proof of service upon all persons required to be served
pursuant to Section 102.120;
h)
Unless
the
proponent
is
the
Agency,
ENR,
or
DNS,
a
petition
signed by
at
least
200
persons,
pursuant
to
Section 28 of the Act and Section 102.160(a); and
i)
Where
any
information
required
by
this
Subpart
is
inapplicable or unavailable, a complete justification for
such inapplicability or unavailability.
Section 102.122
Dismissal
a)
Failure
of
the
proponent
to
satisfy
the
content
requirements of Section 102.121 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.
c)
Any person may file
a motion challenging the sufficiency
of a proposal pursuant to 35 Ill.
Adm.
Code 101.243.
Section 102.123
Proposal Of RCRA Amendments
In addition to satisfying the requirements of Section 102.121, any
proposal to amend the RCRA regulations shall:
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
108—143
20
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 United
States
Environmental Protection Agency (USEPA).
Service shall
be made at the following address:
Director,
Waste Management Division
USEPA,
Region V
230 South Dearborn Street
Chicago, Illinois 60604
SUBPART
C:
SITE-SPECIFIC REGULATIONS
Section 102.140
Proposal
Any
person
may
submit
a
written
proposal
for
the
adoption,
amendment
or
repeal
of
a
substantive
site-specific
regulation.
The original and nine
(9)
copies of each proposal shall be filed
with the Clerk and one copy each served upon the Agency,
ENR, and
the Attorney General.
Section 102.141
Contents
a)
The proponent shall
identify the regulations which are
to
be
addressed
by.
the
pro~osed amendment
and
the
language to
be added,
deleted,
or
repealed.
Language
being
added
shall
be
indicated
by
underscoring
and
language
being
deleted
shall
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 section.
b)
The proponent shall
provide a statement of reasons and
facts
supporting the proposal,
and
a
statement of the
purpose and effect of the proposal.
c)
The proposal shall also comply with all requirements set
forth in Section 102.121.
d)
In the event that the proposed rule would
replace the
applicability of a general rule to the pollution source,
the
proposal
shall
specify,
with
supporting
documentation,
the reasons why the general rule
is not
technically feasible or economically reasonable for the
person
or
site.
Such
documentation
shall
include
relevant information on other similar persons’ or sites’
I
C
S—14
/
21
ability to comply with the general rule.
e)
The proposal shall describe the person or site for which
regulatory change is sought and the area affected by the
proposed
change.
The
proposal
shall
also
include
a
detailed assessment of the environmental
impact of the
proposed
change,
and
include
a
description
of
all
available treatment or control options.
f)
The proposal shall demonstrate that the Board may grant
the requested relief consistent with federal
law.
g)
Where
any
information
required
by
this
Subpart
is
inapplicable or unavailable, the proposal shall
include
a
complete
justification
for
such
inapplicability
or
unavailability.
Section 102.142
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.
c)
Any person may file a motion challenging the sufficiency
of the proposal pursuant to 35
Ill.
Adm.
Code 101.243.
SUBPART
D:
AUTHORIZATION,
SCHEDULING, AND
NOTICE OF HEARINGS
Section 102.160
Authorization Of Hearing
a)
The Clerk shall assign a docket number to any proposal.
All
regulatory proposals
will
be placed
on
the
Board
agenda
for determination of adequacy under the Act and
Sections 102.121 and 102.141.
IF THE BOARD FINDS THAT
ANY SUCH PROPOSAL
IS NOT PLAINLY
DEVOID OF MERIT,
DOES
NOT DEAL WITH A SUBJECT ON WHICH A HEARING HAS BEEN HELD
WITHIN
THE
PRECEDING
6
MONTHS,
IS
ACCOMPANIED
BY
AN
ADEQUATE STATEMENT OF SUPPORTING REASONS AND A PETITION
SIGNED
BY
AT
LEAST
200
PERSONS,
and
meets
the
requirements
of
this
Part,
THE
BOARD
WILL
SCHEDULE
A
PUBLIC HEARING FOR CONSIDERATION OF THE PROPOSAL.
IF A
PROPOSAL IS
MADE
BY THE AGENCY,
ENR,
OR DNS,
THE BOARD
SHALL SCHEDULE A PUBLIC HEARING WITHOUT
REGARD TO
THE
ABOVE CONDITIONS.
Pursuant to Section 28 of the Act, THE
1 00— 1 ~
5
22
BOARD
MAY
ALSO
IN
ITS
DISCRETION
SCHEDULE
A
PUBLIC
HEARING UPON ANY PROPOSAL WITHOUT REGARD
TO THE ABOVE
CONDITIONS.
(Section 28 of the Act.)
The proponent must
cure any inadequacy identified by Board order before the
proposal will proceed to hearing.
b)
If
the
Board
determines
that
a
proposal
meets
the
requirements
of
subsection
(a),
and
if
any filing
fee
required by the Act and
35
Ill.
Adm.
Code
101.120 has
been paid,
the Board will
issue an
order accepting the
proposal for hearing.
Such an order will be construed
as starting the timeclock for purposes of any applicable
economic
impact
study
and
first
notice
publication
deadlines pursuant to Sections 27 and 28.2 of the Act.
c)
When the Board authorizes
a hearing,
the Chairman will
designate
an
attending Board member.
A member of
the
Board
may
serve
as
hearing
officer
if
otherwise
qualified,
and
such
hearing
need
not
be
attended
by
another Board member.
d)
In the case
of a proposed regulatory change
under the
provisions of 35 Ill. Adm. Code 302.211(j) or 304.141(c),
the
requirement
of
subsection
(a)
relating
to
a
requirement of 200 signatures shall not apply.
In such
case only a single hearing shall be required, to be held
in the affected county.
e)
The
Board
may
consolidate
proposals
for
hearing
or
decision.
Section 102.161
Scheduling Of Hearings
a)
Except as otherwise provided by the Act,
no substantive
regulation shall
be .adopted, amended or repealed by the
Board until after at least one public hearing.
In the
case of
site—specific rules,
a public hearing shall
be
held in the affected county.
In the case of state-wide
regulations,
public hearings shall
be held in at least
two counties of the state.
b)
The
Board
need
not
hold
a
hearing
on
a
procedural
regulation,
except as
provided by Section
5.01
of
the
APA.
c)
After
consideration
of
the
number
and
complexity
of
issues
involved
in
a regulatory
proposal,
the hearing
officer will issue an order preliminarily specifying the
number of hearings to be held on that proposal.
d)
If the proponent or any participant wishes to request
a
11)8—145
23
hearing beyond the number of hearings specified by the
hearing officer pursuant to subsection
(c),
that person
must demonstrate,
in a
motion to the Board, 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 or
she exercised due diligence
in its participation
in the
proceeding, and why an additional hearing, as opposed to
the opportunity to
submit written comments pursuant to
Section 102.320,
is necessary.
e)
Notwithstanding subsection
(d), the Board or the hearing
officer will schedule an additional hearing or hearings
on its own motion,
if
it finds that additional hearing
would aid the Board in its decision on the proposal.
Section 102.162
Notice Of Hearing
a)
The
hearing
officer
will
set
a
time
and
place
for
hearing.
The Clerk shall give notice of the date of the
hearing as follows:
1)
By notice in the Board’s Environmental Register; and
2)
At
least
20
days
prior
to
the hearing
date,
by
public
advertisement
in
a
newspaper
of
general
circulation
in the county
in which the hearing
is
to
be
held.
Where
required
by
federal
law,
including but not limited to air pollution and PCRA
proposals,
newspaper notice shall
be published
at
least 30 days prior to the hearing date.
b)
The hearing
officer
will
give
notice
by
mail
to
the
proponent
and to
all persons who have
submitted their
names and addresses to the Clerk concerning the proposal.
c)
Hearings which 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).
Section 102.163
Notice Of Site-Specific RCRA Proposals
a)
Public notice of hearings on site-specific RCRA proposals
shall
be given at least
30 days before the date of the
hearing.
b)
In addition to the requirements of Section 28 of the Act
and Section 102.211, 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 USEPA;
108—147
24
2)
Illinois Department of Transportation;
3)
Illinois Department of Conservation;
4)
Illinois Department of Energy and Natural Resources;
5)
Illinois Department of Public Health;
6)
The
governor
of
any
other
state
adjacent
to the
county in which the facility is located; and
7)
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 102.241, the Board will
give
notice
by
radio
broadcast
in
the
area
of
the
facility.
That
notice
will
include
the
information
required by subsections
(d) (2) and (d) (4) through
(d) (8)
below.
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 petition;
4)
A
description
of
the
relief
requested
in
the
petition
and
the
Board’s
docket
number
of
the
proceeding;
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;
108—148
25
8)
A statement
that the record
in the rulemaking
is
available at the Board office for inspection, except
those portions.which are claimed
or determined to
be trade secrets, and that procedures are available
whereby
disclosure
may
be
sought
by
the
public
pursuant to 35 Ill. Adm. Code
120.
9)
A statement that site-specific rules may be adopted
pursuant to Title VII of the Act and
35
Ill.
Adm.
Code
102,
and a reference to the Board regulations
sought to be modified; and
10)
Any additional
information considered necessary or
proper.
SUBPART E:
ECONOMIC IMPACT STUDY DETERMINATIONS
Section 102.180
Board Determinations
a)
Within
60
days
of
the date
that the
Board
accepts
a
proposal
for hearing pursuant to Section
28
of the Act
and Section
102.160, the Board shall determine whether
an economic impact study should be prepared.
b)
Notwithstanding subsection
(a), AT ANY TIME PRIOR TO THE
CLOSE OF THE RECORD DURING THE RULEMAKING PROCEEDING, THE
BOARD
MAY
DETERMINE THAT AN ECONOMIC IMPACT STUDY SHOULD
BE
PREPARED,
IF
THE
PROPOSAL
HAS
BEEN
SUBSTANTIALLY
MODIFIED OR IF INFORMATION IN
THE
RECORD INDICATES
THAT
AN ECONOMIC IMPACT STUDY WOULD
BE ADVISABLE.
(Section
27
of
the
Act.)
However,
this
subsection
is
not
applicable
to
proceedings
involving
required
rules
pursuant to Section
28.2 of the Act.
c)
IF THE BOARD DETERMINES
THAT AN ECONOMIC IMPACT STUDY
SHOULD
BE CONDUCTED,
ENR SHALL CONDUCT SUCH A STUDY
IN
ACCORDANCE WITH “AN ACT IN RELATION TO NATURAL RESOURCES,
RESEARCH,
DATA
COLLECTION
AND
ENVIRONMENTAL
STUDIES”
(Ill.
Rev.
Stat.
1987,
ch.
96
1/2,
par.
7401 et seq.).
THE BOARD
MAY
IDENTIFY SPECIFIC ISSUES TO
BE ADDRESSED
IN THE STUDY.
(Section 27
of the Act.)
Section 102.181
Request For Determination
a)
WITHIN
21
DAYS
OF THE
DATE
THAT
THE
BOARD ACCEPTS
A
PROPOSAL FOR HEARING PURSUANT TO SECTION
28
OF
THE
ACT
AND
SECTION
102.160,
ANY PERSON
MAY
REQUEST
THAT THE
BOARD DETERMINE THAT AN ECONOMIC IMPACT STUDY SHOULD OR
SHOULD NOT BE PREPARED.
(Section
27 of the Act.)
b)
Such request shall be made
in writing,
and shall detail
if~~
1
~
26
the reasons for the request.
The request SHALL DESCRIBE,
TO THE EXTENT REASONABLY PRACTICABLE, THE ECONOMIC IMPACT
OF
THE PROPOSED RULE.
(Section
27
of
the Act.)
All
material facts asserted in the request shall be verified
by affidavit.
c)
The person filing the request shall file the original and
nine
(9) copies with the Clerk,
and one copy each with
the Agency, ENR, the Attorney General, and the proponent.
d)
No hearing will be held on any request filed pursuant to
this Section.
Section 102.182
Basis For Board Determination
In
determining
whether
an
economic
impact
study
should
be
performed,
the Board will consider:
a)
Information
in
the
record
furnished
by
the proponent
pursuant
to
Sections
102.121
and
102.141
and by
any
person
filing a request
for determination pursuant
to
Section 102.231;
b)
ITS ASSESSMENT OF THE POTENTIAL ECONOMIC IMPACT OF THE
RULE;
c)
THE POTENTIAL FOR CONSIDERATION OF THE ECONOMIC IMPACT
ABSENT SUCH A STUDY;
d)
THE EXTENT,
IF ANY,
TO WHICH THE BOARD IS FREE UNDER THE
STATUTE AUTHORIZING THE RULE TO MODIFY THE SUBSTANCE OF
THE RULE BASED UPON THE CONCLUSIONS OF AN ECONOMIC IMPACT
STUDY; and
e)
ANY OTHER
CONSIDERATIONS
THE
BOARD
DEEMS
APPROPRIATE.
(Sections 27 and 28.2 of the Act.)
Section 102.183
Notice Of Board Determination
The
Board
will
issue
a
written
interlocutory
order
giving
the
reasons
for
its determination.
The proponent,
the Agency,
ENR,
the Attorney General
and any person who has asked to be placed on
the
notice
list
for the
proposal
will
be
given
notice
of
the
Board’s determination.
Orders entered pursuant to
this Section
may be appealed only pursuant to 35
Ill.
Adm.
Code 101.304.
SUBPART F:
CERTIFICATION OF REQUIRED RULES
Section 102.200
Agency Certification
WHEN THE AGENCY PROPOSES A RULE WHICH IT BELIEVES TO BE A REQUIRED
10q_1
~
27
RULE as defined by Section 28.2(a)
of the Act and Section 102.101,
THE
AGENCY
SHALL
SO
CERTIFY
IN
ITS
PROPOSAL,
IDENTIFYING
THE
FEDERAL
LAW TO WHICH THE PROPOSED RULE WILL RESPOND.
(Section
28.2(e)
of the Act.)
Such certification shall include citation to
the specific
section
of
the
specific
federal
law to
which
the
proposed rule will respond.
Section 102.201
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 shall file an objection to that certification
within 21 days of the date of the Board’s order accepting
a proposal for hearing.
Such objection shall state the
reasons that the objector believes that the proposed rule
is not a required rule,
and shall include all arguments
which the objector wishes the Board to consider.
A copy
of the objection shall be served upon the Agency and ENR.
b)
The Agency may
file
a response to any objection within
10 days of 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 102.202
Board Determination
a)
The Board will rule upon
any
objection filed pursuant to
this Subpart within
60 days of the date that the Board
accepts
a proposal for hearing.
The Board’s ruling will
be made
in
its
order determining whether
an
economic
impact study will be prepared, issued pursuant to Section
102.180.
b)
In ruling upon an objection to an Agency certification,
the Board will consider all information in the record of
that
proceeding,
including
but
not
limited
to
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,
ENR, and any person who has asked
to be placed on the notice list for that proposal.
d)
Orders entered pursuant to this Section are interlocutory
in nature and may be appealed
only pursuant to
35
Ill.
Adm.
101.304.
SUBPART C:
AUTHORITY OF HEARING OFFICER
I OS—i 51
28
Section 102.220
Authority Of Hearing Officer
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,
complete,
and concise
record.
He
or she will have all powers necessary to these ends, including
(but
not limited to)
the authority to:
a)
Require
and
establish
a schedule
for,
and
notice
and
distribution of, any pre-hearing submission of testimony
and written exhibits;
b)
Require all participants
to
state their
position with
respect to the proposal;
c)
Administer oaths and affirmations;
d)
Examine witnesses and direct witnesses to testify;
e)
Regulate the course
of the hearing,
including but not
limited to controlling the order of proceedings;
f)
Establish
reasonable
limits
on
the
duration
of
the
testimony
and
questioning
of
any
witness
and
limit
repetitious or cumulative testimony and questioning;
g)
Issue,
in the name of the Board, an order compelling the
answering of interrogatories or other discovery requests;
h)
Order the production of evidence as specified in Section
102.261 and 35 Ill.
Adm.
Code 101.261;
i)
Initiate,
schedule and conduct a pre—hearing conference
as specified in Subpart
H;
j)
Issue subpoenas pursuant to Section 102.262 and 35
Ill.
Adm.
Code 101.260;
k)
Exclude late—filed briefs and comments from inclusion in
the record for decision;
1)
Rule
upon
motions
as
specified
in
35
11.1.
Adm.
Code
101.247 and this Part;
m)
Rule upon objections and evidentiary questions;
n)
Establish a schedule for discovery,
including a date by
which discovery must be completed;
and
0)
Where
pre—hearing
submission
of
hearing
testimony
or
exhibits
has
been
required,
allow
the
admission
of
testimony or exhibits which were not pre-submitted,
if
los—is:
29
necessary to prevent undue delay or material prejudice.
Section 102.221
Notice And Service Lists
a)
The hearing officer shall maintain a notice list for each
regulatory proceeding.
The notice list will consist of
those
persons
who
have
furnished
their
names
and
addresses for inclusion on the notice list for a specific
proceeding.
Notice
of
all
Board
action
and
hearing
officer orders will be given to all persons included on
the notice list.
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
but not limited to, the complexity of the proceeding and
the number of participants.
Section 102.222
Effect Of Hearing Officer Ruling
All
decisions,
orders,
and rulings made
by
the hearing
officer
remain in effect during the pendency of any appeal to the Board of
that decision,
order,
or ruling.
SUBPART
H:
PRE-HEARING CONFERENCES
Section 102.240
Initiation And Scheduling
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 PRE-HEARING CONFERENCE BETWEEN THE PROPONENT
AND
ANY
OR
ALL
OF
THE
POTENTIALLY
AFFECTED
PERSONS.
(Section
27(e)
of
the
Act.)
The hearing
officer may
schedule
a
pre—hearing
conference
on
his
or
her
own
motion,
or
on
the
motion
of
the
proponent
or
any
potentially affected person.
A motion to schedule a pre-
hearing
ccnference
shall
be
directed
to
the
hearing
officer.
b)
THE
NOTICE
REQUIREMENTS
OF
SECTION
28
of
the Act and
Section
102.161
SHALL
NOT APPLY
TO
SUCH
PRE-HEARING
CONFERENCES.
(Section 27(e)
of the Act).
However, the
hearing officer will
give notice to any person who has
requested inclusion on the notice list of that proposal.
Section 102.241
Purpose
105—133
30
The purpose of a pre—hearing conference shall be:
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 THE TIME AT HEARING.
(Section 27(e)
of the Act.)
Section 102.242
Pre—hearing Order
a)
NO RECORD OF THE PRE-HEARING CONFERENCE NEED BE KEPT, NOR
SHALL
ANY
PARTICIPANT
OR
THE
BOARD
BE
BOUND
BY
ANY
DISCUSSIONS CONDUCTED AT THE PRE-HEARING CONFERENCE.
b)
Notwithstanding subsection
(a), WITH THE CONSENT OF ALL
PARTICIPANTS
IN
THE PRE-HEARING CONFERENCE, THE HEARING
OFFICER MAY ENTER A PRE-HEARING ORDER DELINEATING ISSUES
TO BE HEARD, AGREED FACTS, AND OTHER MATTERS.
c)
If the participants
in the pre-hearing conference agree
to
having
a
pre—hearing
order
entered
pursuant
to
subsection(b), the hearing officer may require that those
participants furnish the text of a proposed order setting
forth the substance of the agreements reached at the pre—
hearing conference.
The hearing officer will enter that
order
if
he
or
she
agrees
that
it
sets
forth
the
substance
of the agreement.
The order
shall
identify
which participants have agreed to the substance
of the
order.
d)
A
PRE-HEARING
ORDER
SHALL
NOT
BE
BINDING
ON
NONPARTICIPANTS
IN THE PRE-HEARING CONFERENCE.
(Section
27(e)
of the Act.)
SUBPART
I:
MOTIONS
AND
DISCOVERY
Section 102.260
Motion Practice
Motion practice
in regulatory proceedings
is governed by 35
Ill.
Adm. Code lOl.Subpart H.
All motions and responses shall be served
upon the proponent, the Agency,
ENR,
the Attorney General, and all
persons
on
any
service
list
established
pursuant
to
Section
102.221(b).
Section 102.261
Production Of Information
The production of information in regulatory proceedings is governed
by 35
Ill. Adm.
Code 101.261.
10~—1s4
31
Section 102.262
Subpoenas
The issuance and enforcement of subpoenas in regulatory proceedings
is governed by 35
Ill.
Adm.
Code 101.260(b)
through
(i).
SUBPART J:
REGULATORY HEARINGS
Section 102.280
Pre-hearing Submission Of Testimony And
Exhibits
a)
The proponent shall 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
pre-hearing
submission
of
testimony
and
any
related
exhibits
by
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
four
(4)
copies
of
pre-submitted
testimony and exhibits shall be filed with the Clerk. The
Agency,
ENP,
and,
if
a participant, the Attorney General
shall each be served with one copy of each testimony and
exhibit.
One
copy
shall
also
be
served
upon
the
proponent
and
each
participant
on
any
service
list,
unless
otherwise
specified
or
limited
by the
hearing
officer.
Such service
shall
be
initiated
on or before
the date that copies are filed with the Clerk.
d)
All testimony and exhibits shall be submitted in the form
required by 35
Ill. Adm.
Code 101.103 and labelled 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 pre-submitted
testimony
shall bring copies of that testimony and any
exhibits to the hearing.
f)
Testimony 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 testimony read.
All persons testifying will be sworn
and will be
subject
to
examination.
Modifications to
previously
submitted
testimony
and
exhibits
may
be
allowed by the hearing officer at hearing provided that
such modifications are either non-substantive
in nature
or
would
not
materially
prejudice
another
person’s
participation
at
hearing.
Objections
to
such
108-155
32
modifications are waived unless raised at hearing.
g)
Where
pre-hearing submission
of
testimony
is
required
pursuant to subsection
(a) and
(b),
any testimony which
is not pre-submitted in a timely manner will be allowed
only as time permits, pursuant to Section 102.220(0).
Section 102.281
Transcript
All
testimony
shall
be
recorded
stenographically.
When
the
transcript
is
filed
with
the
Clerk,
the
hearing
officer
will
receive and rule on typographical corrections and reporting errors
from
any
person
who
may
examine
the
transcript
for
accuracy.
Failure
of any witness
to
correct the transcript within
14
days
after
its receipt
in
Board
offices
constitutes
a waiver
of
any
right to correct.
Section 102.282
Admissible Information
All information which is relevant and not repetitious or privileged
shall be admitted by the hearing officer.
The hearing officer will
rule on objections.
Section 102.283
Presentation Of Testimony
a)
All witnesses at hearings shall be sworn.
b)
Testimony shall be in narrative form.
Section 102.284
Questioning Of Witnesses
All
witnesses
shall
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 which is presented
in the form of a question during questioning of any witness.
Section 102.285
Record For Decision
The
record
includes
the transcript,
all written
testimony,
all
exhibits admitted at hearing, and all public comments, briefs and
other information timely filed with the Clerk.
SUBPART K:
ECONOMIC IMPACT HEARINGS
Section 102.300
Hearings On The Economic Impact Study Of New
Proposals
a)
Before the
final
adoption
of
any proposal,
the
Board
shall conduct at least one hearing on any economic impact
study submitted
by ENR on any proposed regulation,
or
proposed
amendment
to
existing
regulation,
unless
10555
33
otherwise provided by the Act.
b)
IN THE CASE OF A REQUIRED RULE,
IF THE ECONOMIC IMPACT
STUDY IS NOT SUBMITTED TO THE BOARD WITHIN SIX (6) MONTHS
OF THE BOARD’S
DECISION THAT AN
ECONOMIC IMPACT STUDY
SHOULD
BE CONDUCTED,
THE BOARD MAY PROCEED
TO ADOPT A
REQUIRED RULE WITHOUT AN ECONOMIC IMPACT STUDY.
However,
TO THE EXTENT POSSIBLE CONSISTENT WITH SECTION 28.2(b)
OF
THE
ACT,
THE
BOARD
SHALL CONDUCT A HEARING ON THE
ECONOMIC IMPACT OF THE PROPOSED REQUIRED RULE.
(Section
28.2
of the Act.)
Pursuant to Section
28
of
the Act,
this requirement may be fulfilled by considering economic
impact
at
any merit
hearing
on
the proposed
required
rule.
c)
Hearings
held
pursuant
to
this
Section
may
be
consolidated
with any other
hearings held pursuant
to
this Part.
Section 102.301
Hearings On The Economic Impact Study Of
Existing Regulations
a)
WITHIN A REASONABLE
TIME,
BUT NOT MORE THAN
120
DAYS,
AFTER EACH ECONOMIC IMPACT STUDY ON EXISTING REGULATIONS
HAS BEEN FILED
BY
ENR,
THE
BOARD
SHALL
CONDUCT
PUBLIC
HEARINGS ON SUCH STUDY.
b)
AFTER CONCLUSION OF THE HEARINGS, THE BOARD SHALL PUBLISH
ITS FINDINGS AND CONCLUSIONS ON THE AREAS COVERED BY THE
STUDY AND THE TESTIMONY RECEIVED BY THE
BOARD.
The Board
will
satisfy
this
requirement
by
entering
a
written
order.
c)
THE BOARD SHALL ALSO SPECIFICALLY DETERMINE WHETHER, AS
A
RESULT
OF
ITS
FINDINGS
AND
CONCLUSIONS,
ANY
REGULATIONS
OF
THE
BOARD SHALL BE MODIFIED OP REPEALED.
d)
IF THE BOARD CONCLUDES THAT MODIFICATION OR REPEAL MAY
BE
NECESSARY,
IT
SHALL
PROPOSE
SUCH
MODIFICATION
AS
REGULATIONS
AND
CONDUCT
FURTHER
HEARINGS
ON
SAID
MODIFICATION.
e)
ANY SUCH
PROPOSED MODIFICATIONS SHALL NOT REQUIRE
ANY
ADDITIONAL ECONOMIC IMPACT STUDY.
(Section 4(b)
of
“AN
ACT
in
relation
to
natural
resources,
research,
data
collection and environmental studies.)
SUBPART
L:
PUBLIC COMMENTS
Section 102.320
Public Comments
11)5—I
r)
34
Any person may submit written comments on any proposal within
14
days after the receipt of the transcript
in Board offices or within
14
days
after regulation
revision under
Section 102.340,
unless
otherwise specified by the hearing officer or the Board to prevent
material
prejudice
or undue delay.
Comments shall
be filed with
the Clerk and served upon the Agency,
ENR, the Attorney General
(if
a participant), the proponent, and the participants on any service
list
established
by
the
hearing
officer
pursuant
to
Section
102.221.
Comments
which
are
not
timely
filed
will
not
be
considered,
except as allowed by the hearing officer or the Board
to prevent material prejudice.
SUBPART M:
BOARD ACTION
Section 102.340
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)
THE BOARD MAY MODIFY AND SUBSEQUENTLY ADOPT ANY PROPOSED
REGULATIONS,
OR
AMENDMENTS
TO
EXISTING
REGULATIONS
WITHOUT ANY ADDITIONAL ECONOMIC IMPACT STUDY;
PROVIDED
THAT
SUCH
MODIFICATION
BY
THE
BOARD
DOES
NOT
SIGNIFICANTLY
ALTER
THE
INTENT
AND
PURPOSE
OF
THE
PROPOSED
REGULATION
WHICH
WAS
THE
SUBJECT
OF
ENR’S
ECONOMIC IMPACT STUDY.
(Section 27(b)
of the Act.)
c)
Unless
otherwise
provided
in
the
Act,
THE
BOARD
MAY
REVISE PROPOSED REGULATIONS AFTER HEARING IN RESPONSE TO
OBJECTIONS
OR
SUGGESTIONS
MADE
BY
JCAR
PURSUANT
TO
SECTIONS 5.01(b)
AND 7.06(a)
OF THE APA.
THE BOARD MAY
MAKE SUCH A 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.
(Section 28
of the Act.)
Section 102.341
Adoption Of Regulations
a)
IN ADOPTING ANY
NEW REGULATION,
EXCEPT A REQUIRED
RULE
OP AN IDENTICAL IN SUBSTANCE REGULATION, THE BOARD SHALL
CONSIDER THOSE ELEMENTS DETAILED IN ANY ECONOMIC IMPACT
STUDY
PERFORMED BY ENP ON THAT
REGULATION.
THE
BOARD
SHALL,
IN
ITS
WRITTEN
OPINION,
MAKE
A DETERMINATION,
108-158
35
BASED UPON THE ECONOMIC IMPACT STUDY AND OTHER EVIDENCE
IN THE RECORD, AS TO WHETHER THE PROPOSED REGULATION HAS
ANY
ADVERSE ECONOMIC IMPACT ON THE PEOPLE OF THE STATE
OF ILLINOIS.
(Section 27(b)
of the Act.)
b)
In the case of a required rule, the Board will follow the
procedures
of
subsection
(a)
,
except
as
provided
in
Section 102.300(b)
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 of the APA shall not apply
to identical
in substance rulemakings.
Section 102.342
First Notice Of Proposed Regulations
Except when otherwise directed by the Act,
the Board
shall give
first
notice
of
its proposed
adoption,
amendment,
or
repeal
of
regulations pursuant to Section 501 of the APA.
The first notice
period shall be at least 45 .days,
and shall 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 102.343
Second Notice Of Proposed Regulations
a)
Except
when otherwise
directed
by
the
Act,
the
Board
shall
give
second
notice
of
its
proposed
adoption,
amendment,
or repeal of regulations to JCAR.
The second
notice period shall begin on the date written notice
is
received by JCAR,
and
shall
expire
45 days after
that
date, except as provided by Section 5.01 of the APA.
The
Board
will
accept
comments
only
from JCAR
during
the
second notice period.
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.
Such
changes
will
be
made
pursuant to Section 102.340(c).
Section 102.344
Notice Of Board Final Action
The Board will give notice of its final action on a proposal to the
proponent,
the Agency,
ENR,
the Attorney General, and all persons
on
the notice
list.
The
Board will publish notice of its
final
action
in
the Environmental
Register,
and will
enter
a written
opinion stating the reasons
in support of
its final action.
Section 102.345
Adoption Of Identical In Substance Regulation
a)
Prior to adopting identical in substance regulations, the
10S—IS~
36
Board will:
1)
Make available to the public a proposed Opinion and
Order containing the text of the rules;
2)
Publish the proposed
regulations
in the Illinois
Register;
3)
Serve a copy of the proposed Opinion and Order on
the USEPA; and
4)
Receive written comments from the USEPA and other
persons
for
at
least
45
days
after
the
date
of
publication in the Illinois Register.
b)
AFTER
CONSIDERATION
OF
COMMENTS
FROM
THE
USEPA,
THE
AGENCY,
THE ATTORNEY GENERAL AND THE PUBLIC,
THE BOARD
SHALL ADOPT THE VERBATIM TEXT OF SUCH USEPA REGULATIONS
AS ARE NECESSARY AND APPROPRIATE FOR AUTHORIZATION OF THE
PROGRAM.
EXCEPT AS PROVIDED IN SECTION 7.2 OF THE ACT,
THE
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.
(Section
7.2(a)
of the Act.)
Section 102.346
Adoption Of Emergency Regulations
a)
WHEN
THE
BOARD
FINDS
THAT
A
SITUATION
EXISTS
WHICH
REASONABLY CONSTITUTES A THREAT TO THE PUBLIC INTEREST,
SAFETY,
OR WELFARE,
THE
BOARD MAY ADOPT REGULATIONS
IN
ACCORDANCE WITH SECTION 5.02 OF THE APA.
(Section 27(c)
of the Act.)
b)
WHEN
THE
BOARD
FINDS
THAT
A
SEVERE
PUBLIC
HEALTH
EMERGENCY
EXISTS,
TIlE
BOARD
MAY,
IN
RELATION
TO
ANY
PROPOSED
REGULATION,
ORDER
THAT
SUCH
REGULATION
TAKE
EFFECT WITHOUT DELAY.
THE BOARD SHALL PROCEED WITH ANY
REQUIRED
HEARINGS
W~1ILE THE
REGULATION
CONTINUES
IN
EFFECT.
(Section 27~c~of the Act.)
Section 102.347
Adoption Of Peremptory Regulations
a)
WHEN
THE BOARD
FINDS
THAT A PEREMPTORY
RULEMAKING
IS
NECESSARY AND STATES
IN WRITING
ITS REASONS
FOR THAT
FINDING, THE BOARD WILL ADOPT PEREMPTORY RULEMAKING UPON
FILING A NOTICE OF RULEMAKING WITH THE SECRETARY OF STATE
PURSUANT TO SECTION 6.01 OF THE APA.
b)
NOTICE OF SUCH PEREMPTORY RULEMAKING WILL
BE PUBLISHED
IN THE ILLINOIS REGISTER.
(Section 5.03 of the APA.)
102-- 150
37
Section 102.348
Adoption Of Temporary Regulations
a)
THE BOARD MAY ADOPT
A PROPOSED REGULATION
PRIOR TO ITS
CONSIDERATION OF AN ECONOMIC IMPACT STUDY WHEN SUCH STUDY
IS FILED WITH THE BOARD LESS
THAN
120 DAYS IN ADVANCE OF
A DATE ON WHICH A TEMPORARY NON-EMERGENCY REGULATION OP
PROVISION
THEREOF
WOULD
LAPSE
PRIOR
TO
ADOPTION
OF
A
PERMANENT
REGULATION
OR PROVISION
THEREOF
ON
THE
SANE
SUBJECT,
OR LESS THAN
120 DAYS
IN ADVANCE OF A DEADLINE
FOP ADOPTION
OF THE REGULATION
WHICH
IS ESTABLISHED
IN
A STATE STATUTE.
(Section
27
of the Act.)
b)
SUCH ADOPTED REGULATION SHALL BE EFFECTIVE UNTIL 180 DAYS
AFTER THE ECONOMIC IMPACT STUDY REQUIRED PURSUANT TO THIS
SECTION
IS FILED WITH THE
BOARD,
AND IN NO EVENT SHALL
A REGULATION ADOPTED
PURSUANT TO THIS
PROCEDURE
STAY IN
EFFECT
FOR MORE THAN ONE YEAR.
(Section 27 of the Act.)
SUBPART
N:
MOTIONS
FOR RECONSIDERATION
AND APPEAL
Section
102.360
Filing
Of
Notion For Reconsideration
Motion
for
reconsideration
or
modification
of
any
Board
order
taking substantive action on a regulatory proposal shall be filed
in accordance with 35 Ill. Adm. Code 101.246.
The contents of such
motions are governed by 35
Ill. Adm. Code 101.242.
Section 102.361
Disposition Of Motions For Reconsideration
a)
AFTER
COMMENCEMENT
OF
THE
SECOND
NOTICE
PERIOD,
NO
SUBSTANTIVE
CHANGES MAY BE MADE TO A PROPOSED RULEMAKING
UNLESS
IT
IS
MADE
IN
RESPONSE
TO
AN
OBJECTION
OR
SUGGESTION
OF
JCAR.
(Section
5.01(b)
of
the
APA.)
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 102.362
Correction Of Publication Errors
The
Board may make technical
corrections to proposed
or
adopted
rules,
published
in
the
Illinois
Register
or
filed
with
the
105—i Si
38
Secretary
of
State,
only
in
accordance
with
1
Ill.
Adm.
Code
100.240.
No hearing need be held on such corrections.
Section 102.363
Appeal
Any final Board order may be appealed to the appellate court within
35 days of the entry of that order, pursuant to Sections 29 and 41
of the Act.
IT
IS
SO
ORDERED.
I,
Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, h~rebycertify that ~
above Opinion and Order was adopted
on the
Y~/
day of
.--~
‘
...
,
1990,
by a vote of
/
-
/
(
~
~
-.
.
/
Dorothy M./Gunn,
Clerk
Illinois P/6llution Control Board
11)8—1S2
