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107.APPENDIX A Comparison of Former and Current Rules (Repealed)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effective July 11, 1994; old Part repealed, new Part adopted in R00-20 at 25 Ill.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

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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

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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.

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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

 

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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

 

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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)