ILLINOIS POLLUTION CONTROL BOARD
February 4, 1999
IN THE MATTER OF:
HEARINGS PURSUANT TO SPECIFIC
RULES, PROPOSED NEW SUBPART K,
INVOLUNTARY TERMINATION OF
ENVIRONMENTAL MANAGEMENT
SYSTEM AGREEMENTS, 35 ILL. ADM.
CODE 106, SUBPART K
)
)
)
)
)
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)
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R99-9
(Rulemaking - Procedural)
Adopted Rule. Final Order.
OPINION AND ORDER OF THE BOARD (by K.M. Hennessey, C.A. Manning, and M.
McFawn):
Today, the Board adopts final rules regarding Environmental Management System
Agreements (EMSAs). An EMSA is an agreement between the Illinois Environmental
Protection Agency (Agency) and a regulated entity that allows the entity to implement
alternatives to ordinarily applicable environmental laws or regulations. These alternatives
should yield greater environmental benefits than would the entity’s compliance with ordinarily
applicable environmental laws or regulations. The rules that the Board adopts today set forth
the criteria and procedures under which the Board or the Agency may terminate an EMSA
without a regulated entity’s consent (
i.e.
, “involuntarily”).
BACKGROUND
In 1996, the General Assembly amended the Environmental Protection Act (Act), 415
ILCS 5/1
et seq
. (1996), to create an EMSA pilot program. See 415 ILCS 5/52.3 (1996),
added by Pub. Act 89-465, eff. June 13, 1996. The purpose of the legislation was to allow
these entities to:
implement innovative environmental measures not otherwise recognized or
allowed under existing laws and regulations of this State if those measures:
1)
achieve emissions reductions or reductions in discharges of wastes
beyond the otherwise applicable statutory and regulatory requirements
through pollution prevention or other suitable means; or
2)
achieve real environmental risk reduction or foster environmental
compliance by other persons regulated under this Act in a manner that is
clearly superior to the existing regulatory system. 415 ILCS 5/52.3-1(b)
(1996).
2
An EMSA “shall operate in lieu of all applicable requirements under Illinois and federal
environmental statutes, regulations, and existing permits that are identified in the [EMSA].”
415 ILCS 5/52.3-3(a) (1996). Participation in the program is voluntary and at the discretion
of the Agency. See 415 ILCS 5/52.3-1(c) (1996).
The EMSA program was inspired by a federal pilot program entitled the “Regulatory
Reinvention (XL) Pilot Project,” 60 Fed. Reg. 27282 (May 23, 1995) (Federal XL Program).
See Agency Statement of Reasons (Statement of Reasons) at 2. That program allowed
regulated entities to develop alternatives to regulatory requirements if the alternatives produced
environmental benefits, reduced administrative burdens, and enhanced public participation.
See 415 ILCS 5/52.3-1(a)(6) (1996). In Section 52.3 of the Act, the General Assembly stated
that the pilot program was intended to allow “a proposal accepted under the Federal XL
Program to be implemented at the State level if the proposal achieves one or more of the
purposes of this Section and is acceptable to the Agency.” 415 ILCS 5/52.3-1(a)(6) (1996).
However, a proposal need not be in the Federal XL Program to be accepted into the EMSA
pilot program. Statement of Reasons at 3, citing 415 ILCS 5/52.3-1(a)(5) and 52.3-1(b)
(1996).
Section 52.3 allowed the Agency to develop Agency rules to establish (1) the criteria an
applicant must meet to participate in the pilot program, (2) the minimum contents of a
proposed EMSA, (3) the procedures for the Agency to review an EMSA, (4) the procedures
for the public to participate in EMSAs and for stakeholders to be involved in designing and
implementing specific projects, (5) the procedures to terminate an EMSA with the regulated
entity’s consent (
i.e.
, voluntarily), and (6) the type of performance guarantee that an applicant
must provide. See 415 ILCS 5/52.3-2(b) (1996). The Agency adopted these rules, which
were published in the
Illinois Register
on April 3, 1998, with an effective date of March 20,
1998. See 22 Ill. Reg. 6217 (April 3, 1998).
Section 52.3 also directed the Agency to propose to the Board procedures and criteria
for the involuntary termination of EMSAs. See 415 ILCS 5/52.3-2(c) (1996). The Agency’s
proposal, filed on August 17, 1998, is the subject of this rulemaking.
PROCEDURAL MATTERS
Section 52.3-2(c) of the Act requires the Agency to propose to the Board “criteria and
procedures for involuntary termination of [EMSAs].” 415 ILCS 5/52.3-2(c) (1996). That
section required the Agency to propose rules to the Board by December 31, 1996. However,
the Agency did not file its proposed rules until August 17, 1998. The Agency “acknowledges
that it is late in filing these rules before the Board.” Statement of Reasons at 2.
Section 52.3-2(c) requires the Board to complete this rulemaking no later than 180 days
after it received the Agency’s proposal. To meet that deadline, the Board sent the Agency’s
proposal to first notice on August 20, 1998, without commenting on the merits of the
proposal. The proposed rules were published in the
Illinois Register
on September 4, 1998.
See 22 Ill. Reg. 15926 (Sept. 4, 1998).
3
The Board held two public hearings in this matter: the first, in Chicago, on September
29, 1998; and the second, in Springfield, on October 6, 1998.
1
The purpose of the hearings
was to allow the Board to receive testimony from the Agency and other interested persons on
the merits and economic impact of the proposal. Two witnesses, each of whom is an Agency
employee, testified at each hearing: Laurel Kroack, Assistant Counsel; and Roger Kanerva,
Environmental Policy Advisor.
The first hearing also provided the public an opportunity to testify on the decision of the
Department of Commerce and Community Affairs (DCCA) not to perform an economic impact
study on the Agency’s proposed rules. Public Act 90-849, effective January 1, 1998, requires the
Board to ask DCCA to conduct an economic impact study on certain proposed rules before the
Board adopts the rules. The Board must make the economic impact study, or DCCA’s explanation
for not conducting the study, available to the public at least 20 days before a public hearing on the
economic impact of the proposed rules. The Board fulfilled these requirements. No one testified
on this issue at the hearing.
At the hearings, the hearing officer accepted into the record the following exhibits:
Exhibit 1: Testimony of Roger Kanerva of the Agency (Exh. 1);
Exhibit 2: June 1998 Comments of the Chemical Industry Council of Illinois on Draft
Rules of the Agency Regarding Involuntary Termination Procedures for EMSAs (Exh.
2);
Exhibit 3: Agency’s Proposed Revisions to its Proposal Regarding Involuntary
Termination Procedures for EMSAs (Exh. 3); and
Exhibit 4: Response of the Agency to Questions of the Board Raised at Hearing on
9/29/98 (Exh. 4).
At the end of the second hearing, the hearing officer established a deadline of
November 4, 1998, for interested persons to file public comments. The Board received only
one public comment, from the Agency (PC 1).
The Board issued a second-notice opinion and order on December 17, 1998. Readers
seeking a detailed discussion of the changes to the Agency’s proposal that the Board made at
second notice should consult the Board’s opinion and order at second notice. See Hearings
Pursuant to Specific Rules, Proposed New Subpart K, Involuntary Termination of
Environmental Management System Agreements, 35 Ill. Adm. Code 106, Subpart K
(December 17, 1998), R99-9.
1
The transcript of the September 29, 1998 hearing is cited as “Tr.1 at __;” the transcript of
the October 6, 1998 hearing is cited as “Tr.2 at __.”
4
The Board filed the Agency’s proposal, as modified at second notice, with the Joint
Committee on Administrative Rules (JCAR). JCAR considered the rules at its January 12,
1999 meeting and issued a certificate of no objection. The final rules reflect minor, non-
substantive modifications that JCAR requested. These changes do not merit discussion.
Agency’s Motion to Reconsider
On January 25, 1999, the Agency filed a motion for the Board to reconsider its opinion
and order at second notice (Mot.). The Agency asks the Board to change the rules regarding
two issues. First, the Agency proposes that the Board amend the rule on appeals of summary
terminations. Second, the Agency proposes that the Board add a deadline for Board decisions
in other involuntary termination proceedings. Mot. at 1-2, 7-8.
The Agency requests that the Board not adopt the rules at this time and instead resubmit
the rules for first notice with the Agency’s proposed changes. Alternatively, the Agency asks
that the Board open a docket to address its proposed changes. Mot. at 7-8.
Below, the Board discusses the Agency’s arguments for changing the rules with respect
to (1) the appeal of summary terminations and (2) a Board decision deadline. The Board then
rules on the Agency’s motion.
Appeals of Summary Terminations
There are two types of involuntary termination. The first requires the Agency to
request the Board to terminate the EMSA. In the second type of involuntary termination, the
Agency may terminate the EMSA without a Board order. The Agency may effect the latter
type of termination when the sponsor’s performance of the EMSA is so deficient that it
“prevents achievement” of the purposes of the EMSA program as set forth in Section 52.3-
1(b) of the Act. See 415 ILCS 5/52.3-1(b) and 52.3-4(b) (1996). The Agency refers to this
type of termination as “summary termination.”
Under Section 106.945(b) of the rules, the sponsor may appeal a summary termination
to the Board. The rules further provide that the appeal “will be in the manner provided for
review of permit decisions in Section 40 of the Act.” The Board explained in its opinion at
second notice that appeals of summary terminations will proceed like permit appeals and that
Part 105 of the Board’s procedural rules addresses permit appeals.
The Agency asks the Board to revise the rules to include appeal procedures that are
specific to appeals of summary terminations. Mot. at 7-8. The Agency states that it is
inappropriate for summary termination appeals to proceed like permit appeals for several
reasons. Mot. at 2. First, the Agency argues that its permit decisions are different from its
summary terminations. The Agency describes its permit decisions as “front-end action” and
its summary terminations as “back-end action.” The Agency urges the Board to use appeal
procedures designed to address “back-end action.” Mot. at 2-3.
5
The Board does not understand the distinction that the Agency draws between its
“front-end” and “back-end” actions. In appeals of both types of actions, the Board must
review the Agency’s actions and its record of decision. Agency permit decisions often come at
the end of a long permit application process that generates an extensive record. The Agency
fails to provide any examples of “back-end action” appeal procedures or explain why different
appeal procedures are necessary.
Second, the Agency argues that Board review under Section 40 of the Act applies only
to appeals of Agency determinations to grant or deny permits under Section 39 of the Act.
Mot. at 3. The Board disagrees. Board review under Section 40 of the Act is not limited to
appeals of Agency permit decisions under Section 39 of the Act. Several Board rules call for
Board review under Section 40 of appeals of Agency determinations that are not permit
decisions. For example, Agency denials of applications under the Site Remediation Program
(SRP) are appealable to the Board “in the manner provided for the review of permit decisions
in Section 40 of the Act.” See 35 Ill. Adm. Code 740.215(d). That provision and others in
the SRP rules make Agency determinations that do not involve permits (see,
e.g.
, 35 Ill. Adm.
Code 740.310(c)) appealable to the Board in the manner provided for in Section 40 even
though the underlying legislation for SRP, like the underlying legislation for EMSAs, did not
expressly provide for such appeal of these determinations. See 415 ILCS 5/58-58.14 (1996).
The Board notes that the Agency proposed the SRP rules, including these provisions providing
for Board review of Agency decisions in the manner provided for in Section 40 of the Act.
See Site Remediation Program and Groundwater Quality (35 Ill. Adm. Code 740 and 35 Ill.
Adm. Code 620) (February 6, 1997), R97-11.
Third, the Agency argues that the permit appeal rules use terminology (
e.g.
, “record of
the ‘permit application’”) that does not apply to summary terminations. Mot. at 4. The
Agency is also concerned about Section 40(a)(2) of the Act, which provides that a petitioner
may deem a permit granted if the Board does not take final action on the petition within 120
days. The Agency states that this provision could be interpreted to nullify the summary
termination if the Board does not meet the 120-day deadline.
Id
.
The Board notes that when it revises its procedural rules,
2
it may consider a separate set
of rules for appeals of Agency determinations other than permit decisions. However, as noted
above, other regulatory programs (
e.g.
, SRP) treat appeals like permit appeals even though
they do not involve a “permit application.” Appeals of summary terminations, like appeals in
these other programs, are “in the manner provided” for the review of permit decisions in
Section 40 of the Act. This provision does not mean that there must be a “permit
application.” Instead, this provision refers to procedural matters such as the time to file an
appeal, the time to file the Agency record, the designation of the parties as petitioner and
respondent, the conduct of hearings, the burden of proof, and the Board’s decision deadline.
The Agency correctly points out that the 120-day decision deadline of Section 40(a)(2) will
2
See Revision of the Board’s Procedural Rules: 35 Ill. Adm. Code 101-130 (October 3,
1996), R97-8.
6
apply to appeals of summary terminations, as it applies to appeals of Agency SRP
determinations (discussed above). However, the Board takes this deadline very seriously.
Lastly, the Agency notes that the Board may stay the Agency’s permit determination
pending the Board’s decision of the appeal. Mot. at 4. The Agency believes that a stay of a
summary termination of an EMSA should not be allowed and that the Board should revise the
rules to prohibit stays. The Agency argues that a stay of summary termination would prevent
it from immediately subjecting a sponsor to environmental laws and regulations that the EMSA
operates in lieu of, which, in turn, would endanger the environment and undermine public
confidence in the EMSA program. Mot. at 4-5. The Agency also states that permit appeal
case law should not apply to appeals of summary terminations. Mot. at 4.
The Board understands that the Agency needs the ability to summarily terminate
EMSAs in certain situations. This is reflected in the rules, which do not require the Agency to
go through a Board proceeding before summarily terminating an EMSA. See Sections
106.940(b) and 106.945. However, the Board concludes that there may be circumstances that
will justify a stay of a summary termination. Accordingly, the rules do not prohibit the Board
from staying summary terminations. In addition, the Agency has not explained why permit
appeal case law should not be applied to summary termination appeals. The Board will decide
the relevance of permit appeal case law when it has a summary termination case before it.
Board Decision Deadline
The Agency maintains that the Board should have a deadline to decide cases in which
the Agency initiates a proceeding before the Board to involuntary terminate an EMSA. Mot.
at 6-7. The Agency asks the Board to revise the rules to provide that Board decisions are due
within 120 days after the Agency files its statement of deficiency, the filing that initiates an
involuntary termination proceeding under these rules. The Agency argues that a decision
deadline will be beneficial because it will expedite the proceeding, even though the rules
impose no consequences if the Board fails to meet the deadline. The Agency refers to another
Board rule, the Clean Air Act Permit Program (CAAPP) permit revocation and reopening
procedures, as an example of a decision deadline that has no consequence if the Board fails to
meet it. Mot. at 6-8; see 35 Ill. Adm. Code 106.915(a).
The Board does not believe that the rules should contain a decision deadline. The
statute does not mandate such a deadline and failure to meet it would be of no consequence.
The Board adopted the CAAPP rule that the Agency cites in a different type of rulemaking
proceeding and, accordingly, does not find it persuasive here. See 415 ILCS 5/28.5 (1996);
Amendments to the Rules for Clean Air Act Permit Appeals and Hearings Pursuant to Specific
Rules 35 Ill. Adm. Code 105 and 106 (March 3, 1994), R93-24. The Board will, however,
decide these matters as expeditiously as practicable. See 35 Ill. Adm. Code 106.956(b).
7
Board Conclusion
The Board denies the Agency’s motion. Under 52.3-2(c) of the Act, the Board must
complete this rulemaking no later than 180 days after it received the Agency’s proposal,
i.e.
,
by February 16, 1999. See 415 ILCS 5/52.3-2(c) (1996) and 5 ILCS 70/1.11 (1996).
Because the Board has long since submitted the rules to JCAR, the Board would violate the
Administrative Procedure Act, 5 ILCS 100/1-1
et seq
. (1996), and the Board’s procedural
rules if the Board now adopted changes that JCAR did not request. See 5 ILCS 100/5-40(c)
(1996); 35 Ill. Adm. Code 102.361(a). If the Board resubmitted the rules for first notice, the
Board would miss the statutory deadline. The Board will not ignore this directive of the
General Assembly.
Even if there were no statutory deadline, the Board will not reconsider a second-notice
order unless the proponent of a motion to reconsider shows that material prejudice will result.
See 35 Ill. Adm. Code 102.361(a). As set forth above, the Agency has not met that burden.
The Agency also has not persuaded the Board that it is necessary to open a separate
docket. The Board already has heard testimony, asked questions, and received comment
relating to the issues that the Agency raises in its motion to reconsider. See Tr.1 at 32-35, 38-
39, 45-51; Tr.2 at 13-17, 21, 40-41; Exh. 4 at 3; PC 1 at 7-9, 17-18. Further proceedings are
not necessary.
OVERVIEW OF THE FINAL RULES
As discussed above, there are two types of involuntary termination: involuntary
termination by Board order; and summary termination, which the Agency executes without a
Board order. Section 106.945 of the rules addresses the criteria that the Agency must apply to
summarily terminate an EMSA and provides that summary terminations may be appealed to
the Board in the manner provided for review of permit decisions in Section 40 of the Act. See
Sections 106.940(b) and 106.945. The Agency has indicated that it will develop its own
procedural rules under Section 52.3-4(d) of the Act for summary terminations. PC 1 at 7.
The Board emphasizes that the provisions of Section 106.945 supplement, rather than
substitute for, the procedures that the Agency will develop.
If the Agency wishes to have the Board terminate an EMSA, the Agency must follow
the procedures set forth in the rules besides Section 106.945. See Section 106.940(c). The
rules govern the involuntary termination proceedings from the initial filing with the Board
through the Board’s decision and after the Board enters its final order (
e.g.
, motion to rehear
or modify the order). The rules are modeled on the Board’s existing Part 103 procedural rules
for enforcement proceedings (35 Ill. Adm. Code 103, Subparts A-H). However, the rules
have shorter and more specific timeframes, and fewer, or more limited, procedural
mechanisms than Part 103.
Only the Agency can initiate a proceeding to involuntarily terminate an EMSA. The
Agency is designated the “complainant.” The Agency must file a “statement of deficiency”
with the Board to initiate the proceedings. The statement of deficiency must set forth the
8
alleged deficient performance under the EMSA. The person who enters into the EMSA, also
known as a “sponsor,”
3
is designated the “respondent” in the involuntary termination
proceeding. The respondent has to file an answer within 15 days after receipt of the statement
of deficiency. The Board or the hearing officer may extend the 15-day period for good cause.
All material allegations of the statement of deficiency are taken as admitted if not specifically
denied in the answer or if the respondent fails to file an answer. See Sections 106.946 and
106.948.
If the respondent timely files an answer, a hearing must be held within 60 days after
the respondent files an answer. This time period can be extended for up to 30 days in narrow
circumstances. The 30-day limit applies to each extension. The hearing officer or the Clerk
must provide 30 days notice of the hearing to the public by newspaper publication and to the
parties. See Section 106.952. Depositions and interrogatories will be permitted if the hearing
officer allows it. See Section 106.966.
The Agency has the burden to prove, by a preponderance of the evidence, that the
sponsor’s performance under the EMSA is deficient. See Section 106.958. There are six
grounds on which the Board may find that the performance of a sponsor is deficient: (1) the
sponsor misrepresented the factual basis for entering into the EMSA; (2) the sponsor failed to
provide the Agency access to the pilot project to monitor compliance with the EMSA; (3) the
sponsor falsified monitoring data, recordkeeping information, or reports about the pilot
project; (4) the sponsor or the owner or operator of the pilot project failed to comply with any
federal or local environmental law or regulation that applies to the pilot project and that the
EMSA does not address, and for which a citizen’s complaint has been filed or the appropriate
authority has sent a notice of violation, complaint, or other notice of failure to comply; (5) the
sponsor or the owner or operator of the pilot project failed to comply with any State
environmental law or regulation that applies to the pilot project and that the EMSA does not
address, and for which a citizen’s complaint has been filed or the Agency has mailed a notice
of violation under Section 31(a) or (b) of the Act; and (6) the sponsor failed to comply with its
EMSA, subject to any grace or cure period or rights contained in the EMSA. See Section
106.954(a). Any Board finding of deficient performance on the fourth or fifth ground will not
be binding for any other purposes. See Section 106.954(b).
The Board will render its decisions as expeditiously as practicable. The Board’s order
will terminate the EMSA, reject termination of the EMSA, or defer termination for a specified
time, not to exceed 90 days, to allow the respondent to rectify its deficient performance. See
Section 106.956(b). The Board may extend the 90-day period for good cause. See Section
106.956(c).
The Board’s order may (1) direct the respondent to cease and desist from violating the
Act, Board regulations, or the EMSA, (2) require the respondent to provide “performance
assurance compensation” in appropriate amounts, (3) require the respondent to post a sufficient
3
“Sponsor” is defined in Section 106.942, which sets forth definitions for use in Subpart K.
Defined terms include “Environmental Management System Agreement” or “EMSA,”
“innovative environmental measures,” and “pilot project.”
9
performance bond or other security to assure that the respondent corrects the violation within
the time that the Board prescribes, (4) enforce the remedy provisions of the EMSA, and (5)
order other relief that may be appropriate. See Section 106.954(d).
Within 35 days after the Board adopts a final order, any party may file a motion to
rehear, modify, or vacate the order or for other relief. Responses must be filed within 14 days
after the motion is filed. In addition, any party has 60 days after the Board enters its final
order to file a motion for relief from that order. See Sections 106.980 and 106.982.
CONCLUSION
The Board finds that the Agency’s proposal, with the Board’s revisions, is
economically reasonable and technically feasible. The Board adopts the revised proposal as
final rules.
ORDER
The Board adopts as final rules the following amendments to 35 Ill. Adm. Code 106.
The Board directs the Clerk of the Board to file the following revised proposal with the
Secretary of State for publication as final rules.
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE A: GENERAL PROVISIONS
CHAPTER I: POLLUTION CONTROL BOARD
PART 106
HEARINGS PURSUANT TO SPECIFIC RULES
SUBPART A: HEATED EFFLUENT DEMONSTRATIONS
Section
106.101
Petition
106.102
Requirements for Petition
106.103
Parties
106.104
Recommendation
106.105
Notice and Hearing
106.106
Transcripts
106.107
Opinion and Order
SUBPART B: ARTIFICIAL COOLING LAKE DEMONSTRATIONS
Section
106.201
Petition
106.202
Notice and Hearing
106.203
Transcripts
106.204
Effective Date
10
SUBPART C: SULFUR DIOXIDE DEMONSTRATIONS
Section
106.301
Petition
106.302
Requirements for Petition
106.303
Parties
106.304
Recommendation
106.305
Notice and Hearing
106.306
Transcripts
SUBPART D: RCRA ADJUSTED STANDARD PROCEDURES
Section
106.401
Petition (Repealed)
106.402
Notice of Petition (Repealed)
106.403
Recommendation (Repealed)
106.404
Response (Repealed)
106.405
Public Comment (Repealed)
106.406
Public Hearings (Repealed)
106.407
Decision (Repealed)
106.408
Appeal (Repealed)
106.410
Scope and Applicability
106.411
Joint or Single Petition
106.412
Request to Agency to Join as Co-Petitioner
106.413
Contents of Petition
106.414
Response and Reply
106.415
Notice and Conduct of Hearing
106.416
Opinions and Orders
SUBPART E: AIR ADJUSTED STANDARD PROCEDURES
Section
106.501
Scope and Applicability
106.502
Joint or Single Petition
106.503
Request to Agency to Join As Co-Petitioner
106.504
Contents of Petition
106.505
Response and Reply
106.506
Notice and Conduct of Hearing
106.507
Opinions and Orders
SUBPART F: WATER WELL SETBACK EXCEPTION PROCEDURES
Section
106.601
Scope and Applicability
11
106.602
Contents of Petition
106.603
Response and Reply
106.604
Notice and Conduct of Hearing
106.605
Opinions and Orders
SUBPART G: ADJUSTED STANDARDS
Section
106.701
Applicability
106.702
Definitions
106.703
Joint or Single Petition
106.704
Request to Agency to Join As Co-Petitioner
106.705
Petition Contents
106.706
Petition Verification
106.707
Federal Procedural Requirements
106.708
Incorporated Material
106.709
Motions
106.710
Service of Filings
106.711
Petition Notice
106.712
Proof of Petition Notice
106.713
Request for Public Hearing
106.714
Agency Response
106.715
Amended Petition and Amended Response
106.801
Hearing Scheduled
106.802
Hearing Notice
106.803
Pre-Hearing Submission of Testimony and Exhibits
106.804
Discovery
106.805
Admissible Evidence
106.806
Order of Hearing
106.807
Post-hearing Comments
106.808
Burden of Proof
106.901
Board Deliberations
106.902
Dismissal of Petition
106.903
Board Decision
106.904
Opinion and Order
106.905
Appeal of Board Decisions
106.906
Publication of Adjusted Standards
106.907
Effect of Filing a Petition
SUBPART H: REVOCATION AND REOPENING OF CLEAN AIR ACT PERMIT
PROGRAM (CAAPP) PERMITS
Section
106.910
Applicability
106.911
Definitions
12
106.912
Petition
106.913
Response and Reply
106.914
Notice and Hearing
106.915
Opinion and Order
106.916
USEPA Review of Proposed Determination
SUBPART I: MAXIMUM ACHIEVABLE CONTROL TECHNOLOGY
DETERMINATIONS
Section
106.920
Applicability
106.921
Definitions
106.922
Petition
106.923
Response and Reply
106.924
Notice and Hearing
106.925
Opinion and Order
SUBPART J: CULPABILITY DETERMINATIONS
Section
106.930
Applicability
106.931
Petition for Review
106.932
Response and Reply
106.933
Notice and Hearing
106.934
Opinion and Order
SUBPART K: INVOLUNTARY TERMINATION OF ENVIRONMENTAL
MANAGEMENT SYSTEM AGREEMENTS (EMSAs)
Section
106.940
Purpose, Applicability
106.942
Definitions
106.944
Severability
106.945
Termination Under Section 52.3-4(b) of the Act
106.946
Who May Initiate, Parties
106.948
Notice, Statement of Deficiency, Answer
106.950
Service
106.952
Notice of Hearing
106.954
Deficient Performance
106.956
Board Decision
106.958
Burden of Proof
106.960
Motions, Responses
106.962
Intervention
106.964
Continuances
106.966
Discovery, Admissions
106.968
Subpoenas
13
106.970
Settlement Procedure
106.972
Authority of Hearing Officer, Board Members and Board Assistants
106.974
Order and Conduct of Hearing
106.976
Evidentiary Matters
106.978
Post-Hearing Procedures
106.980
Motion After Entry of Final Order
106.982
Relief from Section 106.956 Final Orders
APPENDIX A
Old Rule Numbers Referenced
AUTHORITY: Implementing Sections 5, 14.2(c), 22.4, 27, 28, 28.1, 28.5, 39.5 and 52.3
and authorized by Sections 26, 39.5 and 52.3 of the Environmental Protection Act [415 ILCS
5/5, 14.2(c), 22.4, 27, 28, 28.1, 28.5, 26, 39.5 and 52.3]
SOURCE: Filed with Secretary of State January 1, 1978; amended at 4 Ill. Reg. 2, p. 186,
effective December 27, 1979; codified at 6 Ill. Reg. 8357; amended in R85-22 at 10 Ill. Reg.
992, effective February 2, 1986; amended in R86-46 at 11 Ill. Reg. 13457, effective August
4, 1987; amended in R82-1 at 12 Ill. Reg. 12484, effective July 13, 1988; amended in R88-10
at 12 Ill. Reg. 12817, effective July 21, 1988; amended in R88-5(A) at 13 Ill. Reg. 12094,
effective July 10, 1989; amended in R88-5(B) at 14 Ill. Reg. 9442, effective June 5, 1990;
amended in R93-24 at 18 Ill. Reg. 4230, effective March 8, 1994; amended in R93-30 at 18
Ill. Reg. 11579, effective July 11, 1994; amended in R99-9 at 23 Ill. Reg. ____________,
effective ________________________.
SUBPART K: INVOLUNTARY TERMINATION OF ENVIRONMENTAL
MANAGEMENT SYSTEM AGREEMENTS (EMSAs)
Section 106.940 Purpose, Applicability
a)
The purpose of this Subpart is to set forth the criteria and procedures under
which the Board or the Agency may terminate an EMSA, as defined in Section
106.942 of this Subpart.
b)
When the Agency terminates an EMSA under Section 52.3-4(b) of the Act, only
Sections 106.942 and 106.945 of this Subpart apply.
c)
This Subpart, except for Section 106.945, applies to proceedings in which the
Board will determine whether to terminate an EMSA.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.942 Definitions
For purposes of this Subpart, the words and terms used in this Subpart have the meanings
given below. Words and terms not defined in this Subpart, if defined in the Act, have the
14
meanings that the Act provides.
“Act” means the Environmental Protection Act [415 ILCS 5].
“Agency” means the Environmental Protection Agency.
“Board” means the Pollution Control Board.
“Clerk” means the Clerk of the Board.
“Environmental Management System Agreement” or “EMSA” means the agreement
between the Agency and a sponsor, entered into under Section 52.3 of the Act and 35
Ill. Adm. Code 187, that describes the innovative environmental measures to be
implemented, schedules to attain goals, and mechanisms for accountability.
“Innovative environmental measures” means any procedures, practices, technologies or
systems that pertain to environmental management and are expected to improve
environmental performance when applied.
“Pilot project” means an innovative environmental project that covers one or more
designated facilities, designed and implemented in the form of an EMSA.
“Sponsor” means the proponent of a pilot project that enters into an EMSA with the
Agency.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.944 Severability
If any provision of this Subpart is adjudged invalid, or if its application to any person or in any
circumstance is adjudged invalid, the invalidity does not affect the validity of this Subpart as a
whole, or any Section, subsection, sentence or clause not adjudged invalid.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.945 Termination Under Section 52.3-4(b) of the Act
a)
To terminate an EMSA under Section 52.3-4(b) of the Act, the Agency must
determine that the sponsor’s performance under the EMSA has failed to:
1)
Achieve emissions reductions or reductions in discharges of wastes
beyond the otherwise applicable statutory and regulatory requirements
through pollution prevention or other suitable means; or
2)
Achieve real environmental risk reduction or foster environmental
15
compliance by other persons regulated under this Act in a manner that is
clearly superior to the existing regulatory system.
(Section 52.3-1(b) of
the Act)
b)
If the Agency terminates an EMSA under Section 52.3-4(b) of the Act, the
sponsor may, within 35 days after receipt of the Agency’s notification of the
termination, file an appeal with the Board. Appeals to the Board will be in the
manner provided for review of permit decisions in Section 40 of the Act.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.946 Who May Initiate, Parties
a)
Only the Agency may commence a proceeding to terminate an EMSA under this
Subpart.
b)
The Agency will be designated the complainant. The sponsor will be designated
the respondent.
c)
Misnomer of a party is not a ground for a dismissal; the name of any party may
be corrected at any time.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.948 Notice, Statement of Deficiency, Answer
a)
A proceeding to terminate an EMSA will be commenced when the Agency
serves a notice of filing and a statement of deficiency upon the respondent and
files 10 copies of the notice of filing and statement of deficiency with the Clerk.
b)
The statement of deficiency must contain:
1)
The stated basis for the respondent’s alleged deficient performance under
Section 106.954(a) of this Subpart;
2)
The dates, location, nature, extent and duration of any act or omission,
and amount and other characteristics of any discharges or emissions,
alleged to violate provisions of the Act or regulations that apply to the
pilot project that the EMSA does not address;
3)
The dates, location, nature, extent and duration of any act or omission,
and amount and other characteristics of any discharges or emissions,
alleged to violate the EMSA; and
4)
With respect to subsections (b)(1) through (b)(3) of this Section, the
16
statement of deficiency must contain sufficient detail to advise the
respondent of the extent and nature of the alleged violations to
reasonably allow the respondent to prepare a defense.
c)
The respondent must file an answer within 15 days after receipt of the statement
of deficiency, unless the Board or the hearing officer extends the 15-day period
for good cause. All material allegations of the statement of deficiency will be
taken as admitted if not specifically denied by the answer, or if no answer is
filed. Any facts that constitute an affirmative defense that would be likely to
surprise the complainant must be plainly set forth in the answer before hearing.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.950 Service
a)
The Agency must serve a copy of the notice of filing and statement of
deficiency either personally on the respondent or the respondent’s authorized
agent, or by registered or certified mail with return receipt signed by the
respondent or the respondent’s authorized agent. Proof must be made by
affidavit of the person who makes personal service, or by properly executed
registered or certified mail receipt. The Agency must file proof of service of
the notice of filing and statement of deficiency with the Clerk immediately upon
completion of service.
b)
The Agency and the respondent must serve all motions and all other notices
personally, by First Class United States mail, with sufficient postage, or by
overnight delivery by a nationally recognized courier service. The Agency and
the respondent must file 10 copies of the motions and notices with the Clerk
with proof of service.
c)
Service is presumed complete upon personal service, four days after deposit in
the United States First Class mail, with sufficient postage, or the next business
day upon deposit with a nationally recognized courier service for overnight
delivery.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.952 Notice of Hearing
a)
The Clerk will assign a docket number to each statement of deficiency filed.
Any hearing will be held not later than 60 days after the respondent files the
answer, subject to any extensions ordered under subsection (c) of this Section.
b)
The Chairman of the Board will designate a hearing officer and the Clerk will
notify the parties of the designation. The hearing officer may be a Member of
17
the Board if otherwise qualified.
c)
The hearing officer, after reasonable efforts to consult with the parties, will set
a time and place for hearing. The Board or the hearing officer may extend the
time for hearing if all parties agree or there are extreme and unanticipated or
uncontrollable circumstances that warrant a delay. The Board or the hearing
officer may delay the hearing more than once. In each event, the Board or the
hearing officer will not delay the hearing for more than 30 days.
d)
The hearing will be held in the county in which the pilot project is located, or in
another county that the hearing officer designates for cause.
e)
The hearing officer or the Clerk will give notice of the hearing, at least 30 days
before the hearing, to the parties under Section 106.950(b) of this Subpart, and
to the public by public advertisement in a newspaper of general circulation in
the county in which the pilot project is located.
f)
The Agency must give notice of each statement of deficiency and hearing
under Section 106.950(b) at least 10 days before the hearing to:
1)
All stakeholders named or listed in the EMSA; and
2)
Any person who submitted written comments on the respondent’s EMSA
or participated in the public hearing on the respondent’s EMSA by
signing an attendance sheet or signature card under the procedures set
forth in 35 Ill. Adm. Code 187.404, if less than 100 persons attended
the public hearing on the respondent’s EMSA as indicated by signatures
on the attendance sheet or signature cards.
g)
Failure to comply with this Section is not a defense to an involuntary
termination action under this Subpart, but the hearing officer may postpone the
hearing upon the motion of any person prejudiced by a failure to comply with
this Section.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.954 Deficient Performance
a)
For purposes of this Subpart, a respondent’s performance under its EMSA is
deficient if the Agency asserts and the Board finds that any of the following
conditions exist:
1)
The respondent misrepresented the factual basis for entering into the
EMSA.
18
2)
The respondent failed to provide access to the pilot project for the
Agency to monitor compliance with an EMSA.
3)
The respondent falsified any monitoring data, recordkeeping
information or reports regarding the pilot project.
4)
The respondent or the owner or operator of the pilot project failed to
comply with any requirement of any federal or local environmental law
or regulation that applies to the pilot project and that the EMSA does not
address, and for which a citizen’s complaint has been filed with a court
of competent jurisdiction or the appropriate authority has sent a notice of
violation, complaint or other notice of failure to comply to the
respondent or the owner or operator of the pilot project.
5)
The respondent or the owner or operator of the pilot project failed to
comply with any requirement of any State environmental law or
regulation that applies to the pilot project and that the EMSA does not
address, and for which a citizen’s complaint has been filed with the
Board or the Agency has mailed a notice of violation to the respondent
or the owner or operator of the pilot project under Section 31(a) or (b)
of the Act.
6)
The respondent failed to comply with its EMSA, subject to any grace or
cure periods or rights contained in the EMSA.
b)
Any Board finding of deficient performance under subsection (a)(4) or (a)(5) of
this Section will not be binding for any purpose or in any other proceeding
under the Act, other than under this Subpart.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.956 Board Decision
a)
The Board will prepare a written opinion and order for all final determinations
that will include findings of fact (with specific page references to principal
supporting items of evidence in the record) and conclusions of law (supported
by adequate reasoning) on all material issues.
b)
The Board will render its decision as expeditiously as practicable. The Board
will render a decision as an order that:
1)
Terminates the EMSA;
2)
Defers termination for a specified time, not to exceed 90 days from the
date of the order, during which the respondent may rectify the deficient
19
performance; or
3)
Rejects termination of the EMSA.
c)
The Board may extend the time period under subsection (b)(2) of this Section
for good cause.
d)
The Board may order any or all of the following:
1)
Direct the respondent to cease and desist from violating the Act, the
Board’s regulations, or the EMSA;
2)
Require the respondent to provide performance assurance compensation
in appropriate amounts;
3)
Require the respondent to post a sufficient performance bond or other
security to assure that the respondent corrects the violation within the
time that the Board prescribes;
4)
Enforce any remedy provision of the EMSA; and
5)
Order other relief as appropriate.
e)
The Clerk will publish the order and opinion with the vote of each Board
Member recorded and will notify the parties required to be notified of the
hearing from which the order arose of the order and opinion.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.958 Burden of Proof
The Agency has the burden to prove, by a preponderance of the evidence, that there has been
deficient performance under the EMSA, as set forth in Section 106.954(a) of this Subpart.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.960 Motions, Responses
a)
All motions before a hearing must be presented to the hearing officer at least 10
days before the date of the hearing.
b)
The complainant’s motion to voluntarily dismiss an action as to any or all
claims must be directed to the Board and may be made orally upon the hearing
record, or may be made in writing at any time before the Board issues its
decision.
20
c)
All motions must be served on all parties, including the Agency and its
representative and the hearing officer, with proof of service.
d)
Unless made orally on the record during a hearing or unless the hearing officer
directs otherwise, a motion must be in writing, must state the reasons for and
grounds upon which the motion is made, and may be accompanied by any
affidavits or other evidence relied on and, when appropriate, by a proposed
order.
e)
Within 7 days after a written motion is served, or another period that the Board
or hearing officer may prescribe, a party may file a response to the motion,
accompanied by affidavits or other evidence. If no response is filed, the parties
will be deemed to have waived objection to the motion, but the waiver of
objection does not bind the Board. The moving party does not have the right to
reply, except as the hearing officer or the Board permits.
f)
No oral argument will be heard on a motion before the Board unless the Board
directs otherwise. A written brief may be filed with a motion or an answer to a
motion.
g)
The hearing officer may rule upon all motions, except that the hearing officer
has no authority to dismiss, or rule upon a motion to dismiss or decide a
proceeding on the merits, or for failure to state a claim, or for want of
jurisdiction, or to strike any claim or defense for insufficiency or want of proof.
h)
No interlocutory appeal of a motion may be taken to the Board from a ruling of
the hearing officer.
i)
After the hearing, the Board may review the hearing officer’s rulings. The
Board will set aside the hearing officer’s ruling only to avoid material prejudice
to the rights of a party. The hearing officer, if a member of the Board, may
vote upon motions to review his or her rulings as hearing officer.
j)
Unless the Board orders or this Subpart provides otherwise, the filing of a
motion will not stay the proceeding or extend the time to perform any act.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.962 Intervention
a)
Upon timely written application and subject to the need to conduct an orderly
and expeditious hearing, the hearing officer will permit a person to intervene in
an involuntary termination proceeding under this Subpart if the person submitted
written comments on the respondent’s EMSA or participated in the public
21
hearing on the respondent’s EMSA by signing an attendance sheet or signature
card at hearing under the procedures set forth in 35 Ill. Adm. Code 187.404, or
is named or listed in the respondent’s EMSA as a stakeholder, and if the
Board’s final order may adversely affect him or her.
b)
The applicant must file 10 copies of a petition to intervene with the Board and
serve copies on each party not later than 48 hours before the hearing. The
hearing officer may permit a person to intervene at any time before the
beginning of the hearing when that person shows good cause for the delay.
c)
An intervenor has all the rights of an original party, except that the intervenor is
bound by orders issued before the hearing officer permitted the intervenor to
intervene and the intervenor cannot raise issues that were raised or were
required to be raised at an earlier stage of the proceeding.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.964 Continuances
The hearing officer will grant a motion to continue an involuntary termination proceeding
under this Subpart when justice requires. All motions to continue must be supported by an
affidavit or written motion before the hearing officer by the person or persons with knowledge
of the facts that support the motion. However, if the Board determines that any involuntary
termination proceeding under this Subpart is not proceeding expeditiously, the Board may
order actions that it deems appropriate to expedite the proceeding.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.966 Discovery, Admissions
a)
Discovery, except requests to produce documents, admit facts and state the
identity and location of persons with knowledge of facts, as set forth in
subsection (b) of this Section, is not permitted unless the hearing officer orders
otherwise.
b)
Regarding any matter not privileged, the hearing officer may order a party to
produce documents and to state the identity and location of persons with
knowledge of facts upon the written request of any party when parties cannot
agree on the legitimate scope of the requests. It is not a ground for objection
that the documents will be inadmissible at hearing if the information sought
appears reasonably calculated to lead to the discovery of admissible evidence or
is relevant to the subject matter involved in the pending action.
c)
The hearing officer may order a party:
22
1)
To state the identity and location of persons with knowledge of relevant
facts.
2)
To produce evidence that a party controls or possesses so that it may be
inspected, copied or duplicated. The order may grant the right to
reasonably inspect the pilot project.
d)
The hearing officer may at any time on his or her own initiative, or on motion
of any party or witness, make a protective order as justice requires. The
protective order may deny, limit, condition or regulate discovery to prevent
unreasonable delay, expense, harassment, or oppression, or to protect materials
from disclosure by the party who obtains the materials consistent with Sections
7 and 7.1 of the Act.
e)
All objections to rulings of the hearing officer must be made in the record.
f)
Section 106.960(d), (e), (f), (g), (h), (i) and (j) of this Subpart applies
regarding procedures to rule on objections.
g)
Failure to comply with any ruling will subject the person to sanctions under 35
Ill. Adm. Code 101, Subpart J.
h)
Request to Admit Facts. A party may serve on any other party, no sooner than
15 days after the Agency files the statement of deficiency, a written request that
the latter admit the truth of any specified relevant fact set forth in the request.
i)
Request to Admit to the Genuineness of Document. A party may serve on any
other party, no sooner than 15 days after the Agency files the statement of
deficiency, a written request to admit to the genuineness of any relevant
documents described in the request. Copies of the document must be served
with the request unless copies have already been furnished.
j)
Admission in the Absence of Denial. Each of the matters of fact and the
genuineness of each document of which admission is requested is admitted
unless, within 15 days after service under subsection (h) or (i) of this Section,
the party to whom the request is directed serves upon the party requesting the
admission either a sworn statement that denies specifically the matters on which
the admission is requested or that sets forth in detail the reasons why the party
cannot truthfully admit or deny those matters or written objections on the
ground that some or all of the requested admissions are privileged or irrelevant
or that the request is otherwise improper in whole or in part. If a party objects
in writing to a part of the request, the remainder of the request must be
answered within the period designated in the request. A denial must fairly meet
the substance of the requested admission. If good faith requires that a party
deny only a part, or requires qualification, of a matter of which an admission is
23
requested, the party must specify so much of it as is true and deny only the
remainder. The hearing officer will hear any objection to a request or to an
answer upon prompt notice and motion of the party making the request.
k)
Effect of Admission. Any admission made under this Section is for the purpose
of the pending action only. It does not constitute an admission by the party for
any other purpose and may not be used against the party in any other
proceeding.
l)
Expenses of Refusal to Admit. If a party, after being served with a request to
admit the genuineness of any documents or the truth of any matters of fact,
serves a sworn denial in response to the request, and if the party requesting the
admissions later proves the genuineness of the document or the truth of the
matter of fact, the latter party may apply to the Board for an order, under 35 Ill.
Adm. Code 101, Subpart J, for payment of reasonable expenses incurred.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.968 Subpoenas
a)
Upon any party’s timely motion to the Board, or on motion of the hearing
officer or the Board, the hearing officer or the Board may issue a subpoena to
attend a hearing. The subpoena may include a command to produce evidence
reasonably necessary to resolve the matter under consideration, subject to this
Subpart’s limitations on discovery. A copy of the subpoena must be served
upon the Clerk. If the witness, other than a respondent or owner or operator of
a pilot project, is a non-resident of the State, the order may provide terms and
conditions regarding his or her appearance at the hearing that are just, including
payment of his or her reasonable expenses.
b)
Every subpoena must state the title of the action and command each person to
whom it is directed to attend and give testimony at the time and place specified.
c)
The hearing officer or the Board, upon motion made promptly and in any event
at or before the time specified for compliance with the subpoena, may quash or
modify the subpoena if it is unreasonable and oppressive.
d)
Failure of any witness to comply with a Board subpoena will subject the witness
to sanctions under 35 Ill. Adm. Code 101, Subpart J.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.970 Settlement Procedure
a)
All parties to any case in which a settlement or compromise is proposed must
24
file with the Clerk before the time of the scheduled hearing a written statement,
signed by the parties or their authorized representatives, that outlines the nature
of, the reasons for, and the purpose to be accomplished by, the settlement. The
statement must contain:
1)
A full stipulation of all material facts that pertain to the nature, extent
and causes of the alleged violations;
2)
The nature of the relevant parties’ operations and control equipment;
3)
Any explanation for past failures to comply and an assessment of the
impact on the public from the failure to comply;
4)
Details about future plans for compliance, including a description of
additional control measures and the dates on which they will be
implemented; and
5)
The proposed performance assurance payment, if any.
b)
If an agreed settlement is filed under this Section, the Board may dismiss the
case without holding a hearing.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.972 Authority of Hearing Officer, Board Members and Board Assistants
a)
The hearing officer has the duty to conduct a fair hearing, to take all necessary
action to avoid delay, to maintain order, and to ensure development of a clear
and complete record. The hearing officer has all powers necessary to these ends
including, but not limited to, the authority to:
1)
Issue discovery orders;
2)
Rule upon objections to discovery orders;
3)
Make protective orders as justice requires, which may deny, limit
condition or regulate discovery to prevent unreasonable delay, expense,
harassment, or oppression, or to protect materials from disclosure by the
party who obtains the materials;
4)
Administer oaths and affirmations;
5)
Rule upon offers of proof, receive evidence and rule upon objections to
introducing evidence, subject to Section 106.974(b) of this Subpart;
25
6)
Regulate the course of the hearings and the conduct of the parties and
their counsel;
7)
Examine witnesses solely to clarify the record of the hearing. When any
party is not represented by counsel, the hearing officer may examine and
cross-examine any witness to insure a clear and complete record.
However, the hearing officer may not exclude exhibits or other
testimony because of the examination unless all parties agree; and
8)
Except as otherwise provided, consider and rule as justice may require
upon motions appropriate to an adjudicative proceeding.
b)
Any Board Member or assistant to a Board Member present at the hearing may
advise the hearing officer and may interrogate witnesses but does not have the
authority to rule on objections or motions or to overrule the hearing officer
during the hearing.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.974 Order and Conduct of Hearing
a)
The following will be the order of all involuntary termination hearings under
this Subpart, unless modified by the hearing officer for good cause:
1)
Present, argue and dispose of preliminary motions on the matters that the
statement of deficiency raises;
2)
Present opening statements;
3)
Complainant’s case in chief;
4)
Respondent’s case in chief;
5)
Complainant’s case in rebuttal;
6)
Statements from interested citizens, as the hearing officer authorizes;
7)
Complainant’s opening argument, which may include legal argument;
8)
Respondent’s closing argument, which may include legal argument;
9)
Complainant’s closing argument, which may include legal argument;
10)
Present and argue all motions before submitting the transcript to the
Board; and
26
11)
A schedule to submit briefs to the Board.
b)
All hearings under this Subpart will be public, and any person not a party and
not otherwise a witness for a party may submit written statements relevant to the
subject matter of the hearing. Any party may cross-examine any person who
submits a statement. If the person is not available to be cross-examined upon
timely request, the written statement may be stricken from the record. The
hearing officer will permit any person to offer reasonable oral testimony
whether or not a party to the proceedings.
c)
All witnesses will be sworn.
d)
At the conclusion of the hearing, the hearing officer will make a statement about
the credibility of witnesses. This statement will be based upon the hearing
officer’s legal judgment and experience and will indicate whether he or she
finds credibility to be at issue in the case and if so, the reasons why. This
statement will become a part of the official record and will be transmitted by
the hearing officer to each of the parties. No other statement will be made or
be appropriate unless the Board orders otherwise.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.976 Evidentiary Matters
The provisions of 35 Ill. Adm. Code 103.204 through 103.210 regarding admissible evidence,
written narrative testimony, official notice, viewing premises, admitting business records,
examining adverse parties or agents and hostile witnesses and compelling them to appear at
hearing, and amendment and variance of pleadings and proof will apply to proceedings under
this Subpart.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.978 Post-Hearing Procedures
The provisions of 35 Ill. Adm. Code 103.220 through 103.223 regarding default, transcripts,
the record, briefs and oral arguments will apply to proceedings under this Subpart.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.980 Motion After Entry of Final Order
Within 35 days after the Board adopts a final order, any party may file a motion to rehear,
modify or vacate the order or for other relief. Response to the motion must be filed within 14
days after the motion is filed. A motion filed within 35 days stays enforcement of the final
27
order.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
Section 106.982 Relief from Section 106.956 Final Orders
a)
The Board may at any time correct errors in orders or other parts of the record
that arise from oversight or omission or clerical mistakes. The Board may do so
on its own initiative or on the motion of any party and after notice, if any, as
the Board orders. During the pendency of an appeal, the Board may correct the
mistakes before the appeal is docketed in the appellate court. While the appeal
is pending, the Board may correct the mistakes with leave of the appellate court.
b)
On motion and upon terms that are just, the Board may relieve a party or a
party’s legal representative from a final order, for the following:
1)
Newly discovered evidence that by due diligence could not have been
discovered in time under Section 106.956 of this Subpart; or
2)
Fraud (whether previously denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; or
3)
Void order.
c)
A motion under this Section does not affect the finality of a Board order or
suspend the operation of a Board order. The motion must be filed in the same
proceeding in which the Board entered the order but the motion is not a
continuation of the proceeding. The motion must be supported by affidavit or
other appropriate showing as to matters not of record. All parties must be
notified under Section 106.950(b) of this Subpart.
d)
This motion must be filed with the Board within 60 days after entry of the
order.
(Source: Added at 23 Ill. Reg. ____________, effective ________________________)
IT IS SO ORDERED.
28
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for
the appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this
order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 172 Ill. 2d
R. 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the 4th day of February 1999 by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
