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
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
107.APPENDIX A Comparison of Former and Current Rules (Repealed)
AUTHORITY: Authorized by Sections 26 and 27 of the Environmental Protection Act (Act)
[415 ILCS 5/26 and 27] and implementing 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effective July 11, 1994; old Part repealed, new Part adopted in R00-20 at 25 Ill. Reg. 539,
effective January 1, 2001; amended in R04-24 at 29 Ill. Reg. 8828, effective June 8, 2005.
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, the 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.
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)]. The siting approval can only be given pursuant to Section 39.2 of the Act and only
after the 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 for 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
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;
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 one 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 show 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 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
Upon proper filing of the petition, the Board will set the matter for hearing unless it determines
that the matter is frivolous or duplicative as required by Section 40.1(b) of the Act.
(Source: Amended at 29 Ill. Reg. 8828, effective June 8, 2005)
Section 107.502 Dismissal of Petition
a) The Board on its own motion or motion by any party, may dismiss any petition
that:
1) is untimely filed pursuant to Section 107.204 of this Part;
2) fails to name all parties as required by Section 39.2 of the Act;
3) fails to include the required fee and all information as required by Section
107.208 of this Part; or
4) 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 those 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
The petitioner bears the burden of proof in accordance with Section 40.1(a) of the Act.
107.APPENDIX A Comparison of Former and Current Rules (Repealed)
(Source: Repealed at 29 Ill. Reg. 8828, effective June 8, 2005)