78-234
78-236
78.238
~g.241
78-244
78-245
78-247
78-248
78-249
78-252
78.257
7R.9co
~g.262

ILLINOIS POLLUTION CONTROL BOARD

May 28, 1987

IN THE MATTER OF:

PROCEDURAL RULES

)

 R82—27

R62—36

 Consol.

R83—37

ORDER OF THE BOARD

(by

3.

 Theodore Meyer):

The Board hereby adopts the following amendments

 to Title

35:

 Environmental Protection; Subtitle A:

 General Provisions;

Chapter

I:

 Pollution Control Board; Part

 104.

 However,

the

Clerk

 is directed not to submit these rules

 for first notice

publication until such time as the remaining rules

 in this

subtitle are similarly adopted.

 The rules as hereby amended

follow:

TITLE

35:

 ENVIRONMENTAL PROTECTION

SUBTITLE A:

 GENERAL PROVISIONS

CHAPTER

I:

 POLLUTION CONTROL BOARD

PART 104

VARIANCES

SUBPART A:

 GENERAL PROVISIONS

Section

104.102

 Variance from New Regulation

104.103

 References (Repealed)

.104.104

 RCRA Variances

SUBPART B:

 PETITION FOR VARIANCE

Section

104.120

 Petition for Variance

104.121

 Contents of Variance Petition

104.122

 Consistency with Federal Law

104.123

 Extension of Prior Variance

104.124

 Hearing Request

 or Waiver; Affidavit

104.125

 Dismissal for Inadequacy

104.126

 RCRA Variances:

 Additional Material

SUBPART

C:

 NOTICE, ANB OBJECTIONS, JOINDER

AND INTERVENTION

Section

104.140

 Notice of Petition

78-233

—2—

104.141

104.142

104.143

104.144

104. 145

104. 146

104.147

Objections to Petition

RCRA Variances:

 Notice of Filing of Petition

Intervention

Filing

 of Motions and Responses

Motions to Dismiss

Disposition of Motions

Consolidation and Severance of Claims and Joining

Additional Parties

SUBPART D:

 AUTHORIZATION, SCHEDULING AND NOTICE

OF HEARINGS

Section

104.160

104.161

104.162

Board Action on Petitions for Variance and

Authorization of Hearing

Scheduling and Notice

 of Hearing

Continuances

SUBPART

E:

 RE?~MMENBAP~ONANB REGPGNS~

DISCOVERY, ADMISSIONS AND SUBPOENAS

Discovery

Admissions

Subpoenas

Agency Investigation and Recommendation

Reepen5e e~Amended Petition

RCRA Variances:

 Additional Information

in

Recommendation

RCRA Variances:

 Public Comment

SUBPART G:

 P~NA~A?P*~NCONDUCT OF HEARINGS

AND RULES OF EVIDENCE

Section

104.200

104.201

104.202

104.203

104.204

104.205

104.206

104.207

Preeeed~rtgeBurden of Proof

Preeeed~i’ige~Reeed~~ed3- Authority of the Hearing

Officer

~rt~er~p~5~Reeed~f~ed~ Authority of Board Members

and Board Assistants

Order

 of Variance Hearing

Conduct of Hearing

Admissible Evidence

Written Narrative Testimony

Official Notice

Prehearing Conferences

Section

104.170

104.171

104.172

104.173

Section

104.180

104.181

104.182

104.183

SUBPART

F:

 HBARTh6S RECOMMENDATION AND RESPONSE

78-234

—3—

104

208

104.209

104.

210

Viewing

 of Premises

Admission of Business Records in Evidence

Examination

 of Adverse Party or Agent and Hostile

Witnesses;

 Compelling Appearance Thereof at Hearing

SUBPART

H:

 POST HEARING PROCEDURE AND FINAL ACTION

Section

104.220

104.221

104

222

104

223

104.224

104.225

104.226

Bee~4ei’te*Reee&if4ed~Default

Transcripts

Record

Briefs and Oral Argument

Calculation

 of Decision Deadline

RCRA Variances:

 Board Decision

Contents

 of Board Opinion and Orders

SUBPART

I:

 RELIEF FROM FINAL ORDERS

Section

104.240

104.241

Motions

Subsequent

Entry

Final

Order

Relief

From

Section

104.226

Final

Orders

APPENDIX

A

AUTHORITY:

author ized

(Ill.

Rev.

1026)

Old Rule Numbers Referenced (Repealed)

Implementing Sections

5,

35,

36,

 37 and

 38 and

by Section

 26 of

 the Environmental Protection Act

Stat.

 1985,

ch.

 l1?~/2, pars.

 1005,

 1035,

 1037,

 1038 and

SOURCE:

 Originally adopted

 as Chapter

I:

 Procedural Bules, Part

IV:

 Variances,

 in R70—4,

at

 1 PCB

 43, October

8,

 1970;

 amended

in R77—16,

 29 PCB 503, at

 2 Ill. Reg.

16,

p.

 3, effective May 1,

1978, amended

 in R79—9,

 35 PCB 433, at

 3 Ill.

 Reg.

51,

p.

 128,

effective December

 7, 1979; amended

 in R80—l2,

 40 PCB 451,

at

5

Ill. Reg.

 2763, effective March 2,

 1981; codified at

6

 Iii. Reg.

8357; amended

 in R84—l0

at

9

 Ii..

 Reg.

 1409, effective January

16,

 1985;

 amended

 in R82—27, R82—36 and R83—37 at

_____

 Ill.

Reg.

________,

 effective

____________________

TITLE 35:

 ENVIRONMENTAL PROTECTION

SUBTITLE A:

 GENERAL PROVISIONS

CHAPTER I:

 POLLUTION CONTROL BOARD

PART

104

VARIANCES

SUBPART A:

 GENERAL PROVISIONS

Section 104.102

 Variance from New Regulation

78-235

—4—

If any person files a petition for variance from a regulation

within 20 days after

 the effective date of such regulation,

the

operation of such rule or

 regulation

 shall

 be stayed

as

 to such

person pending the disposition of the petition~,provided

however,

 that the operation of any rule or regulation which

implements,

 in whole or

 in part,

 a State

 RCRA, UIC

 or NPDES

program shall not be stayed.

 The Board may hold a hearing upon

 the petition five days from the notice of such hearing, and

in

all other

 respects the rules

 in this Part shall

 apply

 to the

extent they are consistent with the hearing date set by the

Board.

(Source:

 Amended

at

 Ill. Reg.

______,

 effective

____________)

Section 104.103

 References (Repealed)

Et~e~s

 the eentrery ~ e~e~~y

 ~dteeted7

~

 refererteee te

~pert&’

‘Beet4en&~ ~e

~Htne~

Ad~tret~ive

 ?ede7 P~t3e

3Si~ B~enmente~Preteet4em~ ~er exemp~e~~Pert 3991

35

f3&~~

 ?ede 3997 ~md ~Seet~ert389~6~4e 35

H~T

 Adrvt~?ede

399~9F;

(Source:

 Repealed

at

 Ill.

 Reg.

_____,

 effective

___________

Section 104.104

 RCRA Variances

a)

 As used

 in this Part,

 “petition for

 a RCRA variance”

shall mean any pleading which meets either,

 or both, of

the following criteria:

1)

 It requests

 a variance from 35

 Ill.

 Adm. Code 703,

720,

 721,

 722,

 723,

 724 or 725;

or,

2)

 It asks

 that the

 Board

 order

 the Agency to issue

or

modify any provision of a RCRA permit required

pursuant

 to Section 21(f)

 of the Act.

b)

 The federal RCRA rules contain procedures which are

referred

 to as “Variances”

 (40 CFR 260,

 261,

 262,

 263,

264,

 265 and

270

 (19846).

 The petitioner

 should consult

the comparable Board regulations to decide whether

the

variance procedures of this Part need

 to be

 followed.

As provided

 in Title

 IX of the Act and 6eet~ert35

 Ill.

Adm. Code 104.160(f),

 the Board may grant a temporary

variance.

 The Board may grant permanent relief

 from a

rule pursuant to 35 Ill. Adm. Code 102.

 Pursuant

 to 35

Ill. Adm. Code 105 a permit applicant may request Board

review of the Agency’s denial of a permit or issuance

with conditions.

(Source:

 Amended

at

 Ill. Reg.

_____,

 effective

)

78-236

—5—

SUBPART

PETITION

FOR

VARIANCE

Section

 104.120

 Petition for Variance

A ve~terteep~eeeed4ngehe~3~e eemmeneed ~y ~ny person Any person

may

initiate

 a variance proceeding by filing a petition for

variance

with

the

Agency

and

simultaneously

 filing

copies

with

the

Clerk

the

Board.

All

additional

information

amendments

the

petition

for

variance

 shall

 be filed with the

Agency

and

Board

the

same

manner

that

required

for

commencing

the

action.

(Source:

 Amended

at

 Ill. Reg.

_____,

 effective

___________)

Section 104.121

 Contents of Variance Petition

To enable

 the Board

 to rule on the petition for variance,

the

following information, where applicable,

 shall be included

 in the

petition:

a)

 A clear and complete statement of the precise extent of

the relief sought,

 including specific identification of

the particular

 provisions of the regulations or Board

Order from which the variance is sought;

b)

 A description of the business

 or activity of the

petitioner including the size of the business and number

of employees and

 a description of the location and area

 affected by petitioner’s operations,

 including the

county and county seat;

 The quantity and types of materials used

 in the process

or activity for which the variance

 is required and a

full description of the particular process or activity

in which the materials are used;

d)

 The quantity and types

 of materials discharged

 from the

process or activity requiring the variance;

 the location

of the points

 of discharge, and,

 as applicable,

the

identification of the receiving waterway or land,

 or the

location of the nearest

 air monitoring station

maintained by the Agency;

e)

 Data describing

 the nature and extent of the present

failure to meet the numerical standards or particular

provisions from which the variance

 is sought and a

factual statement why compliance with the Act and

regulations was not

 or cannot be achieved by the

required compliance date;

f)

 A detailed description of the existing and proposed

equipment or proposed method of control to be undertaken

achieve

 full compliance with the Act and regulations,

78.237

—6—

including

 a time schedule for the implementation of all

phases of the control program from initiation of design

 to program completion and the estimated costs

 involved

for each phase and the total cost to achieve compliance;

g)

 An assessment, with supporting factual information, of

the environmental impact that the variance will impose

on human, plant and animal life in the affected area,

including, where applicable, data describing the

existing air and water quality which

 the discharge may

affect;

h)

 Past efforts to achieve compliance including costs

incurred, results achieved, permit status,

 and, for

publicly-owned treatment works or connections thereto,

construction grant status;

i)

 A discussion of the availability of alternate methods of

compliance, the extent that such methods were studied,

and the comparative factors leading to the selection of

the control program proposed

 to achieve compliance;

j)

 A statement

 of the measures to be undertaken during the

period of the variance to minimize the impact of the

discharge of contaminants on human, plant

 and animal

life in the affected area,

 including the numerical

interim discharge limitations which can be achieved

during the period of the variance;

k)

 A concise factual statement

 of the reasons the

petitioner believes that compliance with the particular

provisions

 of the regulations or Board Order would

impose an arbitrary or unreasonable hardship; end

the

 requested variance involves

 an existing permit or

a pending permit application,

 a copy of the permit

or

permit

application

in)

 If the petition contains

 a claim of confidentiality,

a

justification

for

such

confidentiality

accordance

with

Ill.

Adm.

Code

101.107(c)

n)

 A specific request

 for hearing or

 a clear

 statement

waiving hearing and containing an affidavit in

accordance

with

 Ill. Adm. Code 104.124

 A statement whether the requested

 relief can be granted

consistent

with

federal

law

 accordance with

35

 Ill.

Adm.

Code

104.122;

and

Such

other

things

are

required

this

Subpart.

(Source:

Amended

Ill.

Reg.

_______,

effective

__________)

78.238

—7—

Section

104.122

Consistency

with

Federal

Law

All

petitions

for

variances

from

Title

the

Act

from 35

 Ill. Adm.

 Code, Subtitle B7:?h~ ~

(Air

Pollution),

 shall

 indicate whether the Board may grant.

the

requested

relief

consistent

with

the

 Clean Air Act

(42

U.S.C.

7401

seq.)

and

the

federal

regulations

adopted

pursuant

 thereto.

 If granting

 a variance would

constitute issuance of a delayed compliance order

as

that term is defined in

 40 CFR 65.01(e),

 the petition

shall indicate whether the requested relief is

consistent with Section 113(d) of the Clean Air Act and

40 CFR 65.01

—

 65.10 and 65.181.

 If granting

 a variance

would require revision of the State Implementation Plan,

the petition shall

 indicate whether the requirements of

Section 110(a)

of

 the Clean Air Act and

 40 CFR 51 will

be satisfied.

b)

 All petitions for variances from Title III

 of the Act;

from 35 Ill. Adm. Code,

 Subtitle C7: Water Pollution 9h~

~

 or from water pollution related requirements of any

other

title

 the Act or Chapter of the Board’s

Regulations

 shall indicate whether

 the Board may grant

the relief consistent with the Clean Water Act (33

U.S.C.

 1251),

 USEPA effluent guidelines and standards,

any other Federal regulations,

or

 any areawide waste

treatment management plan approved by the Administrator

of USEPA pursuant to Section 208 of the Clean Water Act.

c)

 All petitions for variances from Title

 IV of the Act or

from 35

 Ill.

 Adm. Code,

 Subtitle F7:?h-

 ~ (Public Water

Supplies),

 shall indicate whether the Board may grant

the relief consistent with the Safe Drinking Water Act

(42 U.S.C. 300(f) et seq.)

 and the USEPA National

Interim Primary Drinking Water Regulations

 (40 CFR 141).

d)

 The petition may include an analysis of applicable

federal law and legal arguments and facts which may be

necessary to show compliance with federal law.

If

it

does not and petitioner subsequently files

 a pleading

containing such,

 it will be deemed an amended petition,

thereby restarting

 the decision period.

 However,

petitioner may7 pursuent te 6eet~en

~94~8~~r

 file a

response

 to the Agency’s analysis of federal laws

without amending

 the petition.

e)

 All petitions for RCRA variances shall

 include a showing

that the Board

 can grant

 the requested relief consistent

with, and establish RCRA permit conditions no less

stringent than, that which would be required.by the

Solid Waste Disposal Act as amended by the Resource

Conservation and Recovery Act of 1976

 (P.L.

 94—580,

as

amended by P.L.

 95—609,

 42 U.S.C.

 6901 et seq.), and the

regulations

thereunder

promulgated

the

United

States

78-239

~0~

Environmental

Protection

Agency

(40

CFR

260,

261,

262,

263,

264,

265

and

270

(19846)).

Such

petitions

shall

indicate whether

 any federal provisions authorize the

relief requested, and shall include any facts necessary

 show that the petitioner would be entitled

 to the

requested

relief

pursuant

federal

law.

(Source:

Amended

Ill.

Reg.

_____,

 effective

____________)

Section 104.123

 Extension of Prior Variance

petition

extend

prior

variance

granted

the

Board shall be commenced by filing a petition for

variance with the Agency and the Board in accordance

with

the

requirements

Sections

104.120

and

104.121.

 Pe the extent thet the infermetien required by

Seetione

~94~3~29

end

~O4T~2~

hee

been

ine~ded

the

prier

petition

for

verienee

for

whieh

extencion

~eu~ht7 e reetthmiesien of thet infermetion she~ net be

re~t~4red

 provtded thet the petition ehe~req~eetthe

ineerporetion of the reeord7 opinion end order

 tn the

prier proceeding into the new petition~ A petition

to

extend

 a prior variance shall be a new petition for

variance before

 the Board and shall be assigned

 a new

docket number by the Clerk.

b)’

 A petition to extend e prior verienee 5he~ be e new

petition for verienee before the Beerd end ehe~ be

et~bjeetto eH

 of the reqt~irementeof thie Pert except

ac provided in e~beeetienfe~

(Source:

 Amended at

______

 Ill. Reg.

_____,

 effective

___________)

Section 104.124

 Hearing Request or Waiver; Affidavit

The petition shall contain

 a request for a hearing on the

petition

 if desired by petitioner;

or,

 in the alternative,

a

statement waiving

 a hearing,

 accompanied by euch affidavits or

other proof

 in support of the material facts alleged

 in the

petition ec the petitioner ~tey5ubn~it, sufficient to enable the

Board,

if

 it so decides,

 to rule upon the petition without a

hearing.

 In the event that e heering en the varienee petition

hoe been woived by the petitioner end no hearing is held, the

petition for variance, the Agency recommendation,

 and any

amendments or

 responses thereto shall constitute the entire

record

 in the proceeding end the decicion

of

 the Beerd eha~ibe

rendered after coneideretien of the record except

 that the Board

may take official notice of prior regulatory proceedings and

opinions and orders of the Board

 in adopting the regu~etioneor

ordere of the Beard from which the variance ic soughtT

(Source:

 Amended at

 Ill.

 Reg.

______,

 effective

)

78-240

—9—

Section

104.125

Dismissal

for

Inadequacy

The failure

 to satisfy the requirements of this Subpart or

to

respond

 to Board orders

 for more information

 to the extent that

the Board is not reeeeneb~yinformed of petitioner.L5

circumeteneee-~will

 render

 the petition for variance subject to

dismissal for inadequacy,

 unless the Board ehe~ rules otherwise.

(Source:

 Amended at

_____

 Ill.

 Reg.

______,

 effective

__________

Section 104.126

 RCRA Variances:

 Additional Material

a)

 The petitioner must clearly identify a petition for

a

RCRA variance as such.

b)

 Persons who have,

 or are required

 to have,

 a RCRA permit

and who seek

 a RCRA variance which could result in

modification

or

 issuance of the RCRA permit must have on

file with the Agency a RCRA permit application

reflecting

 the requested variance prior

 to filing

the

variance petition.

 Petitioner shall attach

 to the variance petition a copy

of the RCRA permit application,

 or such portion as may

be relevant to the variance request.

d)

 Petitioner shall attach to the variance petition proof

of service on USEPA as required by Section 35

 Ill.

 Adm.

Code 104.142.

(Source:

 Amended

at

_____

 Ill. Reg.

_____,

 effective

___________)

SUBPART

C:

 NOTICE,

PE~P~8NOBJECTION,

JOINDER AND INTERVENTION

Section 104.140

 Notice of Petition

a)

 The Board ehe~give will provide notice of all variance

petitions to e~ persons en its mai~irigHot through

publication of notice of the petition in the Board’s

Environmental Register

 in the first

 pubHcatior* of the

Environmenta~Register issue published after the Board

has considered the petition

 in accordance with Section

104.160(b).

b)

 Within

 10 days after

 a variance

petition

filed

~the

Agency

shall:

fl

 Give written notice of aH variance petitions to

any person

 in the county

 in which the installation

property

~ecated

for

which

the

variance

sought

 is located who has

 in writing

 to the Agency

requested

notice

variance

petitions,

the

State’s

~g.241

—10—

Attorney

such

county,

the

Chairman

the

County

Board of such county, and

 to each member of the

General Assembly from the legislative district

in

which the installation or property is located and

to other persons as required

 by law. Within ~9 days

after the petition is fi~ed7the Agency shaH

~J

 pPublish notice of such petition

 in a newspaper of

general circulation

 in the county in which the

installation or property is ~oeated for which

the

variance

 is sought is located.

(Source:

 Amended

at

_____

 Ill.

 Reg.

_____,

 effective

____________)

Section 104.141

 Objections to Petition

a)

 Any person may file with the Clerk, within

 21 days after

the filing of the petition,

 a written objection to the

grant of the variance.

 Such objection may or may not

be

accompanied by a petition to

 intervene in accordance

with Section

~93~~9

35

 Ill. Adm.

 Code 104.143.

 A copy

of such objection shall

 be mailed

 to the petitioner and

the Agency by the Clerk.

b)

 Paragraph

(a)

 does

 not apply to RCRA Variances.

Sections 35

 Ill. Adm. Code 104.183 and 104.200 provide

for public comment and a public hearing on all such

 petitions.

(Source:

 Amended

at

____

 Ill.

 Reg.

_______,

 effective

__________)

Section 104.142

 RCRA Variances:

 Notice of Filing of Petition

a)

 Any petition requesting

 a RCRA variance shall not be

deemed filed until proof of service has been filed with

the Board.

 Petitioner

 shall

 serve

 the United States

Environmental Protection Agency a copy of any petition

requesting

 a RCRA variance

 at the following

 address:

Director, Waste Management Division

USEPA, Region V

230 South Dearborn Street

Chicago,

 IL 60604

b)

 In addition to the requirements of Section 37 of the Act

and Section 35

 111.

 Adm. Code 104.140,

 the Agency at a

minimum shall give notice of the filing of a petition

for a RCRA variance

 to the following persons:

1)

 Federal agencies as designated by the United States

Environmental Protection Agency;

78-242

—11—

Illinois

Department

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;

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.

 In addition

 to the methods of notice by publication of

Section 35

 Ill. Adm. Code 104.140, the Agency shall give

notice by broadcast over at least one local radio

station

 in the area of the facility containing the

information required by paragraphs (d)(2)

 and (d)(4)

through (d)(7).

d)

 The notices required by paragraphs

 (b) and

(c)

 shall

be

accomplished within the time limit established by

Section 35 Ill. Adm.

 Code 104.140(b).

e)

 A notice of the filing of a petition for

 a RCRA variance

shall include the following information:

1)

 The address of the Board office;

2)

 Name and address of the petitioner and, if

different,

 of the facility for which the variance

is sought;

3)

 A brief description of the business conducted at

the facility and the activity described in the

petition;

4)

 Name, address and telephone number of the Clerk of

 the Board, from whom interested persons may obtain

further information, including copies of the

variance petition;

5)

 A statement that the Agency is preparing

a

recommendation, the date on which the

recommendation is to be filed, and the name,

address and telephone number of the Agency employee

responsible for the recommendation;

78-243

—12—

6)

 A statement that a hearing will

 be held after

the

filing of the recommendation and that the record

will remain open for written comments

for

 45 days

after filing of the recommendation.

 The notice

will include the address of the Board

 to which

comments shall be mailed;

7)

 A statement that the

 record

 in the variance

proceeding is available at the Board office for

inspection, except those portions which are claimed

to be trade secrets, and that procedures are

available whereby disclosure may be sought by the

public.

8)

 A statement that variances may be granted pursuant

to

 Ill. Rev.

 Stat.

 19835,

 ch. 1ll~ pars.

 1035 et

seq.

 and 35 Ill. Adm. Code 104,

 and a reference to

the Board regulations or order from which a

variance

 is sought.

9)

 Any additional information considered necessary or

 proper.

(Source:

Amended

Ill.

Reg.

_______,

 effective

Section

104.143

a)

Intervention

c)

 An intervenor shall have all the rights of an original

party,

except

that

the

intervenor

shall

bound

Upon

timely

application

and

subject

the

necessity

for

conducting

orderly

and

expeditious

hearing,

the

Hearing

Officer

shall

permit

any

person

intervene

variance

proceeding

when

either

the

following

conditions

met:

~J

The

applicant

 so situated that the applicant may

be adversely affected by a final order

 of the

Board;

or

2)

 An applicant’s claim and the variance proceeding

involve a common question of law or

 fact.

Ten (lO).copies of a petition for intervention shall

be

filed with the Board

 and the applicant shall also serve

copies on each party.

 The Hearing Officer may permit

intervention at any time when good cause

 is shown.

 Upon

allowance of intervention the Hearing Officer

 shall

notify the parties and the Clerk and may allow a

continuance

 of the hearing

 to enable adequate pre—

hearing procedures only to the extent feasible within

the statutory decision deadline and

 as justice may

require.

78-244

—13—

orders

previously

issued

and

shall

not

raise

issues

which

actually

were

raised

were

required

raised

 earlier stage of the proceeding.

d)

 Whenever

 a proceeding before

 the Board may affect the

right

 of the public individually or collectively to the

use of community sewer

 or water

 facilities provided by a

municipally owned

 or publicly regulated company,

all

persons claiming

 an interest shall have the right

to

intervene as parties pursuant

 to this section and

present evidence of social

 and economic impact.

(Source:

 Added at

 Ill.

 Reg.

______,

 effective

__________)

Section 104.144

 Filing of Motions and Responses

~j

 All motions preliminary to a hearing shall be presented

to the Board

or

 to the Hearing Officer

 at least

 14 days

prior

 to the date

 of the hearing unless otherwise

allowed

 by the Board

 or Hearing Officer.

 Unless made

orally on the record during

 a hearing or

 unless the

Hearing Officer

 directs otherwise,

 a motion shall

be

in

writing, shall

 clearly designate whether

 a ruling

is

requested from the Hearing Officer

or

 the Board, shall

state

 the reasons for

 arid

 grounds upon which the motion

is made, and

 shall

 be acconipanied by any affidavits or

other evidence relied on and, when appropriate,

 by a

proposed order.

 All motions must be served

 on all

parties,

 including the Hearing Officer, with proof of

service

 in accordance with 35 Ill.

 Adm. Code 103.123(b).

~

 Within

 7 days after service of a written motion,

 or such

other period

 as the Board or Hearing Officer may

prescribe,

 a party may file

 a response

 in support of or

opposition

the

motion,

accompanied

 affidavits

other

evidence.

response

filed,

the

parties

shall

deemed

have

waived

objection

the

granting

the

motion,

but

such

waiver

objection

does

not

bind

the

Board

its

determination.

The

moving

party

shall

not

have

the

right

reply,

except

permitted

the

Hearing

Officer

the

 Board.

Oral

argument

motion

may

permitted

before

the

Board,

its

 discretion.

 A written brief may be

 filed

with

motion

answer

motion,

stating

the

arguments and authorities relied on.

(Source:

 Added at

 Ill. Reg.

_______,

 effective

___________

Section

104.145

Motions

Dismiss

Motions

petitioner

voluntarily

dismiss

variance

petition

78-245

—14—

shall

directed

the

Board

and

may

made

any

time

prior

issuance

the

Board’s

decision.

(Source:

Added

Ill.

Reg.

________,

effective

—

)

Section 104.146

 Disposition of Motions

~j

 The Hearing Officer shall rule upon all motions, except

that the Hearing Officer shall

 have no authority to rule

upon any motion to dismiss,

or

 to decide

 a proceeding on

the merits.

 The Hearing Officer

 shall refer

 any such

motions to the Board.

 The Board,

 in its discretion, m~y

direct that hearing on

 the proceeding be conducted and

may take all motions directed

to

 it with the case.

 This

conditional

 ruling

 by the Board

 shall not foreclose

a

party from advancing the

 same contentions upon the

completion of the hearing.

b)

 No interlocutory appeal

of

 a motion may be

 taken to the

 Board from a ruling

 of the Hearing Officer, except by

allowance of the Board after motion filed by

 a party or

the Hearing Officer.

 When

 in the judgment of the

Hearing Officer

 immediate appeal of any order

is

necessary to prevent harm to the public interest or

to

avoid unusual delay or expense, the Hearing Officer may

refer

the

 ruling promptly to the Board

 and notify the

parties either by announcement on the record

 or by

written notice

 if the hearing

 is not

 in session.

 Rulings of the Hearing Officer may be

 reviewed by the

Board

 after conclusion

 of the hearing, but will

 be set

aside only to avoid material prejudice

 to the rights

of

a litigant.

 The Hearing Officer,

if

 a member

 of the

Board,

may

vote

upon

motions

review

his

her

rulings

Hearing

Officer.

~J

 Unless otherwise provided herein or ordered

 by the

Board,

neither

 the filing of

 a motion nor the

certification

question

the

Board

shall

stay

the

proceeding

extend

the

time

for

performance

any

act.

(Source:

 Added

at

 Ill.

 Reg.

_____,

 effective

___________)

Section 104.147

 Consolidation and Severance of Claims and

Joining

Additional

Parties

the

interest

convenient,

expeditious

and

complete

determination

claims,

the

Board

may

consolidate

sever

enforcement,

variance,permit

other

adjudicative

claims

involving

any

number

parties,

and

78-246

—.L~—

may order

 additional necessary parties to

 be brought

in

pursuant

 to the provisions

 of subsection(b).

b)

 If a complete determination of

 a controversy cannot be

had without the presence of other parties,

 the Board

or

Hearing Officer

 shall order

 them

 to be joined as a

party.

 If a person not

 a party has an

 interest which

the order may affect,

 the Board

 or Hearing Officer may

order

 that person joined as

 a party.

 The Board

 shall

provide the joined party with service of process and

copies of all pleadings filed prior

 to the joinder.

Service of process and pleadings shall

 be by personal

service or by First Class

U.

 S. Mail.

(Source:

 Added

at

 Ill. Reg.

_______,

 effective

____________

)

SUBPART D:

 AUTHORIZATION, SCHEDULING AND

NOTICE OF HEARINGS

Section 104.160

 Board Action on Petitions for Variance and

Authorization

Hearing

The

Clerk

shall

 assign a docket number to each petition

filed,

deposit

 the petition

 in the Board’s files,

and

distribute copies to each Board Member.

 Copies of

objections

 to the petition, amendments,

 the Agency’s

recommendations and responses to the recommendation

shall

filed

and

distributed

received.

b)

 All petitions for variance

 shall be placed on the Board

agenda

and

the

Board

 will authorize one or more of the

following actions,

 as they

 it shall determine:

1)

 The petition may be dismissed

 if the Board

determines that

 it is not adequate under Subpart B

or the Act;

or,

2)

 The Board may enter

 an order

 for additional

information

 in support of the petition; or,

3)

 The Board may accept the petition and defer

decision until an Agency recommendation has been

served upon the petitioner and filed with the

Board;

or,

 The Board may authorize

 a hearing on the petition.

c)

 The Board shall authorize

 a hearing on any petition for

variance, determined

 to be

 an adequate petition by the

Board,

 in any of the following circumstances:

1)

 When a hearing

 is requested by the petitioner on

filing the petition

 in accordance with Section

104.124;

or,

78-247

—16—

2)

 When an objection to

the

variance

has

been

filed

within 21 days after the filing of the petition

in

accordance with Section 104.141; or,

When

petition

for

RCRA

variance

has

been

filed;

or,

When

hearing

requested

amended

petition

within

days

after

receipt

the

Agency

recommendation

the

petitioner

accordance

with

Section

l04.18l~b1;

or,

~

When

the

requested

variance

relief,

 if granted,

would necessitate

 a revision to the State

Implementation Plan

for

 a criteria pollutant under

the federal

 Clean Air Act

(42

USC

7401

 et seq.).

d-)

When

hearing

has

been

euthorised

the

Beard

pursuant

to subsections ~bff4-3~

 or ~e+7 the Shairman shaH

designate

Hearing

efficer

accordance

with

Section

ed)

H

 no hearing ~as been eutherised pursuant to

subsections

~bf~4~

~e-~-~ tThe

Board

shall

act

within

days

the

fiHng

 of the petition end shaH prepare

opinion

stating

 reasons supporting the grant or

denie3~ of

the

petition~

within

120

days.

except

that

tThe Board

 shall

not

act

grant

deny

any

petition

until after

 21 days have elapsed from the date of

filing.

~he

decision

period

 RSRA7 ~3~? and

NPBBS

variances is as provided in Section 38~e-~

 of the Acti

fe)

No

variance

shall

granted,

with

without

hearing,

without

showing

affidavits

other

adequate

proof

 the petitioner

 that compliance with the regulations

Board

order

would

impose

arbitrary

unreasonable

hardship

upon

the

petitioner.

(Source:

 Amended at

 Ill. Reg.

_____,

 effective

___________)

Section 104.161

 Scheduling and Notice of Hearing

a)

 When

 a hearing

 is requested,

 required or authorized by

the

Board,

the

Clerk

shall

assign

Hearing

 Officer.

The

Hearin~g Officer

shall

set

date,

time

and

place

for

hearing

held

least

days

prior

decision

deadline.

 If the parties fail to provide an acceptable

hearing

date

after

reasonable

attempt

the

Hearing Officer

 is unable

 to consult with the parties,

the

Hearing

 Officer after appropriate eonsu~1tationwith

the parties shall unilaterally set a time and place for

hearing, to be

 he’3d within 68 days of the fiHng of the

petition7 The Hearing Officer must provide the Clerk

78-248

—17—

with

least

days

notice

 the date,

 time and

location

the

scheduled

hearing.

b)

 The Hearing Officer, upon scheduling hearing,

 shall

create

 a schedule for completion

 of the record.

The

schedule shall provide dates and deadlines

for

prehearing

 conferences, completion of discovery, hearing

 and submittal

 of briefs.

 The schedule must provide for

a completed

 record at least

 20 days before the decision

deadline.

The

schedule

shall

the

form

Hearing Officer Order

 and shall

 be served on all parties

and filed with the Clerk

 by personal service

 or First

Class

U.S.

mail.

cb)

 The Hearing Officer shall give notice of

 the hearing in

accordance with 35 ~

 Adm-

 eode ~63~~3+b~,

~y

personal service

 or by First Class

U.S.

 mail,

 at least

21 days before the hearing

 to the petitioner, the

Agency,

 and anyone who has filed

 an objection to the

petition.

de)

The

Clerk

shall

pubHsh

the

time

end

piece

the

hearing

the

Beard-~s Bnvironrrtente~ Register

the

first

pubHeetiort

the

Bnvironmenta~

after

the

Hearing

efficer

shaH

have

set

the

date

for

hear4ng~

give public notice of the date, time and location of the

hearing:

publication

the

Environmental

and

~iL

 least

 21 days before

 the hearing, by public

newspaper

general

circulation

the

county

which

the

subject

facility

located.

‘When

the

requested

variance

relief,

granted,

would

necessitate

revision

the

 State Implementation Plan

for

 a criteria pollutant under

 the federal Clean Air

Act(42 USC

7401

seq.)

copy

 of the variance petition

shall

sent

 public library in the air quality

control

region

which

the

 subject facility is located

for

public

inspection.

fd)

Notice

 of hearings on petitions for RCRA Variance shall

subject

the

following

provisions

instead

paragraphs

(a),

(b),

end

(c),

(d)

and

(e):

The

Hearing

Officer,

after

appropriate

consultation

with

the

parties,

shall

set

time

and

place

for

the

hearing

held

not

less

than

days

after

the

filing

the

recommendation.

The

Hearing

Officer

may

give

notice

any

hearing

prior

the

actual

filing

the

 recommendation.

 If the

recommendation

actually

filed

less

 than 30 days

78-249

—18—

before the scheduled date of the hearing,

the

Hearing Officer

 shall reschedule the hearing and

give public notice again.

2)

 The hearing shall be held

 in the county

 in which

the facility is located,

 in the population center

in such county closest to the facility.

3)

 The Hearing Officer

 shall give notice of the

hearing

the

persons

entitled

notice

Section 104.140 and 104.142, and

any

other

persons who have commented,

 requested to comment or

requested notice.

4)

 Notice shall

 be mailed not less than

 30 days before

the

hearing.

(Source:

Amended

Ill.

Reg.

_______,

 effective

_________)

Section 104.162

 Continuances

a)

 A motion for continuance of

 a date or deadline not

involving or affecting the hearing date

or

 the date

of

decision may be granted

 by the Hearing Officer when

justice

requires.

The

motion

must

state

the

factual

basis

justifying

continuance

and

must

supported

affidavit

the

person

persons

having

 knowledge of

the

facts

supporting

the

motion.

the

Hearing

Officer

grants

the

motion,

 a revised’schedule for completion of

record

must

 filed with the Clerk

and

served

all

parties

 in accordance with Section 104.161(b).

motion

for

 continuance of a hearing date

or

 a date or

deadline affecting the date of decision

in

 a variance

proceeding

may

granted

the

Hearing

 Officer when

justice

requires

 arid the requirements of paragraph

(c)

are met.

 Such a motion for continuance must state

the

factual basis justifying continuance and must be

supported

affidavit

the

 person or

 persons

having know1edge~ofthe facts supporting the motion.

The

Hearing

Officer

may

grant

continuance

under

subsection(b)

only

where

waiver

the

 statutory

decision

deadline

the

petitioner

has

been

submitted,

in writing,

the

Hearing

Officer

Clerk.

Continuance can only be for an equivalent or fewer

number of days

 that the decision deadline

 is waived.

Waivers

must

either

complete

waiver

the

statutory

decision

deadline

until

 date certain that

will

allow

time

reschedule

hearing

and

provide

adequate

notice

and

sufficient

time

for

Board

decision

making.

Any

waiver

shall

extend

the

time

deadline

Section

104.180

regarding

filing

the

Agency

78-250

—19—

recommendation

the

equivalent

number

days,

but

any

circumstance

the

recommendation

must

filed

least

 days before hearing.

 If the Hearing Officer

grants

the

motion,

revised

schedule

 for completion of

the

record

must

filed

with

the

Clerk

and

served

all

parties

accordance

with

Section

104.161(a).

(Source:

Added

_____

Ill.

Reg.

______,

 effective

_________)

SUBPART E:

 DISCOVERY, ADMISSIONS AND SUBPOENAS

Section

 104.170

 Pre—hearing Conferences

Upon

the

Hearing

Officer’s

own

motion

upon

motion

party,

the

Hearing

Officer

may,

upon

written

notice,

direct

the

parties

their

attorneys

appear

specified

time

and

place

for

conference,

prior

during

the

course

hearing

for

the

purposes

of:

Simplifying

the

issues

Amending

the

pleadings

for

clarification,

amplification,

limitation

3)

 Making admissions

 of facts or stipulating

to

the

admissibility

any

matters

expedite

the

hearing

fl

Limiting

the

number

 witnesses

Exchanging

prepared

testimony

and

exhibits;

and

~J

 Aiding

the

simplification

the

evidence

and

disposition

the

proceeding.

Action

taken

the

 prehearing conference shall

 be noted

in the hearing record

 by the Hearing Officer, unless the

parties enter

 upon written stipulation as to such

matters.

(Source:

Added

Ill.

Reg.

______,

 effective

__________)

Section 104.171

 Discovery

Information

obtainable

through

any

the

following

discovery

methods:

 depositions upon oral

 or written

questions, written interrogatories to parties, and

discovery

 inspection of documents or property.

Duplication

discovery

methods

obtain

the

same

information

should

avoided.

78-251

—20—

Regarding

any

matter

not

privileged,

the

 Hearing Officer

shall have the authority

 to order discovery upon

the

written

request

any

party

 when parties cannot agree

the

legitimate

scope

discovery.

The

Hearing

Officer shall set a schedule for

 the orderly submission

of discovery and shall file a copy of the schedule with

the Clerk.

 It is not

 a ground

 for objection that the

testimony will

 be inadmissible

 at hearing

 if the

information

sought

 appears reasonably calculated

 to lead

the

 discovery of admissible evidence or

 is relevant

to_the_subject

matter

 involved

 in the pending action.

The Hearing Officer

 shall order:

~j

 The production of the identity and location of

persons having knowledge of relevant facts.

fl

The

taking

the

 deposition of any witness

including expert witnesses expected

 to testify at

the hearing.

~J

 The taking

 of the interrogatory of any party.

fl

 The production of evidence under

 the control or

possession

 any party for the purposes of

inspection and where necessary for purposes of

copying

duplication.

This

 shall include the

right

 reasonable

 inspection of premises of any

party.

c)

 The Hearing Officer may at any time on his or her own

initiative,

motion

 of any party or witness, issue

a protective order

 as justice requires, denying,

limiting,

conditioning

regulating

discovery

prevent unreasonable delay, expense, harassment, or

oppression or

 to protect materials from disclosure by

the party obtaining such materials consistent with the

provisions of Sections

 7 and 7.1 of the Act and

35

 Ill.

Adm. Code 101.107 and 120.

All depositions and interrogatories

 taken pursuant

to

this section shall

 be for purposes of discovery only,

except as herein provided.

 Depositions and

interrogatories may be used

 for the following purposes:

jj~

 Impeachment of the testimony of the deposed

or

interrogated

person

~J_.

Admissions of the deposed or interrogated person

or

Upon

application

the

Hearing

Officer

either

before

after

the

taking

such

deposition

interrogatories

and

upon

showing

the

time

the

hearing

that

the

person

deposed

interrogated

78-252

—21—

will

not

 available to participate

 in the hearing

because

death,

age,

sickness,

infirmity,

absence

from the country or other exceptional

circumstances,

the

Hearing

Officer

may

order

that

the

deposition

interrogatories

used

evidence

 in the hearing.

Upon

transcription

the

deposition,

shall

made

available

the

deponent

 for examination, unless the

deponent and the parties who are represented

 at the

deposition

waive

the

deponent’s

signature.

Any

changes

form

substance

which

the

 deponent desires to make

shall

 be entered upon

the

deposition

the

Hearing

Officer with

 a statement of the reasons given by the

deponent making

 them.

 The deposition shall then be

signed by the deponent unless

 the deponent

 is ill

or

cannot be found

 or refuses to sign,

 in which event the

Hearing Officer’s certificate

 shall

 state

 the reason for

the omission of the signature.

f)

 In addition

 to the limitations

in

(d)

 above,

 a party at

hearing may exclude by objection those portions of any

deposition which contain evidence that would

 be excluded

if the witness were testifying

 in person.

All objections

 to rulings of the Hearing Officer

 shall

be made

the

record.

When,

the

judgment

the

Hearing Officer prompt decision by the Board is

necessary the Hearing Officer may request the Board to

rule on the objection.

 The Board may grant

 or deny the

objection or

 in its discretion rule that the Hearing

 Officer’s ruling

 be conditionally upheld and take the

objection with the case.

Section 104.146 shall apply regarding procedures

for

ruling on objections.

1)

 Failure

 to comply with any ruling shall subject the

persons to sanctions under

35

 Ill. Adm. Code 109.

(Source:

 Added at

 Ill. Reg.

________,

 effective

)

Section 104.172

 Admissions

Request

 for Admission of Fact.

 A party may serve on any

other party a written request

 for the admission of the

truth of any specified relevant fact set forth

 in the

request.

Request

 for Admission of Genuineness

 of Document.

A

party may serve on any other

 party

 a written request

for

admission of the genuineness

 of any relevant documents

described

in

the

 request.

 Copies of the document shall

78-253

—22—

be served with

 the request unless copies have already

been furnished.

Admission in the Absence of Denial.

 Each of the matters

fact

and

the

genuineness

each

document

which

admission

 is requested

 is admitted unless, within 28

 days after service thereof,

 the party

 to whom the

~equest

 is directed serves upon the party requesting the

admission either

 a sworn statement denying specifically

the matters of which admission

is

 requested or setting

forth

 in detail the reasons why he or

 she 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

otherwise

 improper

 in whole or

in

part.

 If written objections to a part of the request

are

made,

the

remainder

the

request

shall

 be answered

within the period designated in the request.

 A denial

shall fairly meet

 the substance

 of the requested

admission.

 If good faith

 requires that

 a party deny

only a part,

 or requires qualification, of

 a matter of

which

 an admission

 is requested,

he

 shall specify so

much of

it

true

and

deny

only

the

remainder.

Any

objection

 is a request

or

to

 an answer shall

 be heard

by

the Hearing Officer

 upon prompt notice and motion of the

party making the request.

d)

 Effect of Admission.

 Any admission made by a party

pursuant to request 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.

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

 thereof,

and

 if the

party

requesting

the

admissions thereafter proves the genuineness of the

document

or

the

 truth of the matter of fact, he may

apply to

 the Board

for

 an order

 under

35

 Ill.

 Adm. Code

109.

(Source:

Added

Ill.

Reg.

_______,

 effective

__________)

Section 104.173

 Subpoenas

a)

 The Hearing Officer

 or the Board may issue

 a subpoena

for attendance

at

 a deposition or

 a hearing upon written

motion by any party.

 The subpoena may include

 a command

to_produce evidence reasonably necessary to resolution

of the matter

 under consideration, subject

to

the

limitations on discovery prescribed by this Part.

A

78-254

—23—

copy

the

subpoena

shall

 be served upon the Clerk for

Board

files,

 if the witness

is

 a non—resident of the

state,

the

order

may

provide

such

terms

and

conditions

connection

 with his appearance at the hearing

 as are

just,

 including payment of his reasonable expenses.

b)

 Every subpoena shall state

 the title of the action and

shall command each person to whom it is directed

to

attend

and

 give testimony at the time and place therein

specified.

The

Hearing

 Officer

 or the Board,

 upon motion made

promptly

and

any

 event at or before the time

specified

 in the subpoena for compliance therewith, may

quash or modify the subpoena if

it

 is unreasonable and

oppressive.

d)

 Failure of any witness

 to comply with a Board subpoena

shall subject the witness to

 sanctions under

35

 Ill.

Mm.

 Code 109.

(Source:

 Added

at

 Ill. Reg.

_______,

 effective

)

SUBPART

EF:

 RECOMMENDATION AND RESPONSE

Section 104.180

 Agency Investigation and Recommendation

a)

 After

 investigating the variance petition and

considering the views of persons who might be adversely

affected by the grant of the variance, the Agency shall

within

days

the

fiHng

the

petition

any

amendment thereto make a recommendation to the Board on

the disposition of the petition

 in accordance with

subsection

 (b).

 The recommendation shall

 include:

1)

 A description of the efforts made by the Agency to

investigate

the

 facts as alleged and

 to ascertain

the views of persons who might be affected and

a

summary of the views so ascertained;

2)

 A statement of the degree to which,

 if at all, the

Agency disagrees with the facts

 as alleged

 in the

petition,

 including facts refuting any allegations

the

petition

for

variance;

3)

 Allegations of any other facts the Agency believes

relevant

the

disposition

the

petition;

The

Agency’s

estimate

 the costs that compliance

would

impose

the

 petitioner and on others and

of

the injury that the grant of the variance would

impose

the

public

including

the

effect

that

continued discharge of contaminants will have upon

the environment;

78-255

The

 Agency’s analysis of applicable federal laws

and regulations and an opinion concerning

the

consistency of the petition with such federal laws

and regulations; and

The

Agertcy~Lsconc~aeion

what

disposition

shouid

made

the

petition-

The

status

any

permits

or pending permit applications that are associated

with

 or affected by the requested variance

7)

 An affidavit verifying

 the facts contained

 in the

recommendation;

and

~J

 The Agency’s conclusion of what disposition should

be made

 of the petition.

b)

The

 Agency shaH serve a copy of its recommendation on

the petitioner

 in accordance with Section ~63~3~b-~

FeHure of the Agency to time’y fHe its recommendation

shaH

 be grottnde for the Hearing Officer to adjourn the

hearing to a date which wiH aHow reasonab’e time to

prepare7 The Agency shall

 file its recommendation within

30 days of the filing of the petition

 or amended

petition, or

 at least

 15 days before hearing, whichever

is earlier.

 The Agency shall

 serve

 a copy of

its

recommendation on the petitioner

and

 the Board

 by First

Class

 U.S. mail.

(Source:

 Amended at

 Ill. Reg.

_______,

 effective

_________)

Section 104.181

 Response or Amended Petition

Within ~ days after receipt of the Agency Recemmendetion7 the

petitioner may~

FHe with the Beard a response to any Agency

recommendation and a copy shaH be served upon the

Agencyt or7

b~

Piie

 an amended petition for variance in accordance with

Section i64~2~7requesting that the matter be set for

heering~ The Board shaH authorise the matter for

hearing

and

render

fina’

decision

within

 90 days after

the

fHing

the

amended

petition~

Within

 7 days after the receipt of the Agency’s recommendation,

the

petitioner

may

file

response

 an amended petition,

request

hearing

not

 previously requested,

 or both.

 Upon

filing

amended

petition

request

for

hearing,

the

statutory decision period

 in Section 38 of the Act will begin

anew.

(Source:

 Amended at

 Ill.

 Reg.

_______,

 effective

_________)

78-256

—25—

Section 104.182

 RCRA Variances:

 Additional Information

in Recommendation

a)

This

section

shall

apply

Agency

recommendations

petitions for RCRA Variances in addition to the

provisions of Section 104.180

b)

 The Agency shall file its recommendation with the Board

within

 30 days after

 the petition

 is filed.

c)

 The recommendation shall

 include a fact sheet or

statement of basis as provided

in

 35 Ill.

 Adm. Code

705.141 through

 705.143, insofar as relevant to the

variance requested.

d)

 If the Agency recommends that the variance be granted,

a

partial draft permit reflecting the variance and

recommended

conditions

shall

 be included with the

recommendation.

e)

 If the Agency recommends that the variance be denied,

a

notice of intent

 to deny shall be included with the

recommendation.

f)

 The Agency shall serve

 its recommendation on the United

States Environmental Protection Agency and all persons

who have notified the Agency that they intend

 to comment

or have otherwise asked to be served a copy of the

recommendation.

Section 104.183

 RCRA Variances:

 Public Comment

a)

 Any person,

 including the United States Environmental

Protection Agency, may comment in writing within 45 days

after

 the Agency files

 its recommendation.

b)

 Comment may be on both the petition for

 a RCRA variance

and on the recommendation.

 The Board will mail copies of any written comment to the

petitioner,

 the Agency and the United States

Environmental Protection Agency,

 unless

 the person

 filing

 the comment files a proof of service on the

persons entitled

 to copies.

SUBPART FG:

 CONDUCT OF HEARINGS AND

RULES OF EVIDENCE

Section 104.200

 Proceedings Burden

 of Proof

a-)

 Proceedings upon a petition for variance shaH be in

accordance with Part ~63y except as otherwise provided

in this Pert~

78.257

b-)

 In a hearing

on

 a petition for variance the burden of

proof shall

 be on the petitioner and it shall be the

duty of the petitioner,

 at hearing,

 to prove each

meteria~fact aHeged in the petition for verianceT that

denial of the variance would cause

 an arbitrary or

unreasonable hardship.

(Source:

 Amended

at

 Ill. Reg.

______,

 effective

_________)

Section 104.201

 Proceedings -~Reeodified-)Authority of the

Hearing Officer

The Hearing Officer shall have 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 timely

record.

 The Hearing Officer must order

 a schedule for completion

of the record that will result

in

 a completed record at least 20

days before the statutory decision deadline.

 In addition

 to the

powers enumerated

 in 35

 Ill. Adm. Code 104.170 and 104.171,

the

Hearing Officer shall

 have all powers necessary to these ends

including (but not limited

 to) the authority to:

Set

hearing

dates

unilaterally

b)

 Order

 schedules for completion of the record

 Administer

 oaths and affirmations

d)

 Rule upon offers of proof and receive evidence and rule

upon objections to the introduction of evidence

e)

 Regulate the course

 of the hearings and the conduct of

the parties and their counsel

f)

 Examine witnesses for

 the sole purpose of clarifying

the

record established

 by the parties at 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 as a result of his examination unless all

parties so agree; and

~j

 Except as otherwise provided

in

35

 Ill.

 Adm. Code

104.106, consider

 and rule upon motions.

(Source:

 Added at

 Ill. Reg.

______,

 effective

___________

Section 104.202

 Preneeripts ~Recodified) Authority of Board

Members and Assistants

78-258

—27—

Any Board Member or assistant

 to the Board who

 is an attorney

licensed to practice

 in Illinois present at the hearing may

advise

 the Hearing Officer and may interrogate witnesses but

shall not have the authority to rule on objections or motions or

to overrule the Hearing Officer during the hearing.

(Source:

 Added at

 Ill.

 Reg.

_______,

 effective

__________

)

Section 104.203

 Order of Variance Hearings

The following shall

 be the order

 of all variance hearings,

subject

 to modification by the Hearing Officer for good cause:

a)

 Presentation, argument, and dis~positionof motions

preliminary to

 a hearing

~l.

Presentation of opening statements

C)

 Petitioner’s case

 in chief

d)

 Respondent’s case

 in chief

e)

 Petitioner’s case

 in rebuttal

f)

 Statements from interested citizens,

 as provided by

35

Ill. Adm. Code 104.204;

which may include legal

 Petitioner’s closing argument,

argument;

h)

 Respondent’s closing argument, which may include

 argument

 Presentation and argument of all motions prior

to

submission of the transcript

 to the Board; and

jj

 A schedule for submission of briefs

 to the Board.

(Source:

 Added

at

_____

 Ill.

 Reg.

______,

 effective

__________)

Section 104.204

 Conduct of Hearing

a)

 All hearings under

 this Part shall

 be public.

The

Hearing Officer shall permit any person not a party and

not otherwise

 a witness

for

 a party to submit written

statements or

 reasonable oral testimony or

 to ask

questions relevant

 to the subject matter of the

hearing.

 Any person submitting such statement or

testimony shall

 be subject to cross—examination by any

party.

 If such person is not available

 for cross—

examination upon timely request, the written statement

or testimony may be stricken from the record.

legal

7R.9co

—28—

b)

 All witnesses shall

 be sworn.

~j

 Whenever

 a proceeding before

 the Board may affect the

right of the public individually or collectively to

the

use of community sewer

 or water facilities provided by a

 municipally owned or publicly regulated company,

evidence of any social

 and economic impact which would

result from restriction

 or denial of the right

 to use

such facilities shall

 be admissible

 in such

proceeding.

 The Hearing Officer

 shall allow all persons

claiming

an

 interest to intervene as parties pursuant

to

35 Ill.

 Adm. Code 104.143 and

 to present evidence of

such social and economic impact.

d)

 Upon the conclusion of the hearing, the Hearing Officer

shall make

 a statement as to the credibility of

witnesses.

 This statement shall

 be based upon the

Hearing Officer’s legal judgment and experience and

shall

 indicate whether the Hearing Officer finds

credibility to

be

 at issue in the case and

 if so, the

reasons why.

 This statement shall

 become a part

 of the

official record

 and shall

 be transmitted

 by the Hearing

Officer

 to each of the parties

 in the case.

 No other

statement shall

 be made or

 be appropriate unless

otherwise ordered

 by the Board.

(Source:

 Added at

 Ill. Reg.

_______,

 effective

___________

Section 104.205

 Admissible Evidence

a)

 The Hearing Officer

 shall

 receive evidence which is

admissible under

 the rules

 of evidence as applied

 in the

Courts of Illinois pertaining

 to civil actions except as

these rules otherwise provide.

 The Hearing Officer may

receive evidence which

 is material, relevant and would

be relied upon by reasonably prudent persons in the

conduct of

 serious affairs provided that the rules

relating

 to privileged communications and privileged

topics

 shall

 be observed.

~

 When the admissibility of evidence depends upon an

arguable interpretation of substantive law, the Hearing

Officer shall

 admit such evidence.

~j

 The Hearing Officer may order

 the record

 of any relevant

prior proceeding

 before

 the Board

 or part thereof

incorporated into the record

 of the present proceeding

provided that

 the party requesting such incorporation

has provided the Hearing Officer or

 Clerk with copies of

the record

 or partial record

 to be

 incorporated.

~j

 Relevant scientific

 or technical articles, treatises

or

materials may

 be introduced

 into evidence subject

to

78-260

—29—

refutation or disputation through any introduction of

 comparable documentary evidence or expert testimony.

(Source:

 Added

at

 Ill. Reg.

______,

 effective

_________)

Section 104.206

 Written Narrative Testimony

Written narrative testimony may be introduced

 by a party

in

a

hearing only if provided

 to all

 other parties of record at least

10 days prior

 to the date of the hearing and only

 if actually

read

 into the record by the party so testifying and who shall

be

subject

 to cross examination.

 The opposing parties may object

to

all or portions of the written testimony and obtain a ruling on

said objections

 prior

 to its introduction at hearing.

(Source:

 Added

at

 Ill. Reg.

______,

 effective

__________)

Section 104.207

 Official Notice

Official notice may be taken of all facts of which judicial

notice may be taken and of other

 facts within the specialized

knowledge and experience of the Board

(Source:

 Added

at

 Ill.

 Reg.

 effective

Section 104.208

 Viewing

 of Premises

Upon motion of any party or upon

 the Hearing Officer’s own

motion, the Hearing Officer and any Board Members may view the

premises

 in question to establish

 a more comprehensive record but

no such viewing

 by less than the whole Board shall be made if any

party objects.

 No stenographic record need be taken of what

transpires

 at the viewing.

(Source:

 Added

at

____

 Ill. Reg.

_______,

 effective

___________)

Section 104.209

 Admission of Business Records in Evidence

Any writing or

 record, whether

 in the form of any entry

in

 a book

or otherwise made

 as a memorandum or

 record of any at,

transaction, occurrence, or

 event, shall

 be admissible

as

evidence of the act, transaction, occurrence,

 or event.

 To be

admissible the writing

or

 record

 shall have been made in the

regular course of any business, provided it was the regular

course of

 the business

 to make such

 a memorandum or record

 at the

time of such an act, transaction, occurrence, or event or within

a reasonable time thereafter.

All

 other circumstances of the

making of the writing or

 record,

 including lack of personal

knowledge

 by the entrant or maker, may be shown

 to affect its

weight, but shall not affect its admissibility.

 The term

78-261

—30—

“business,”

used

this

rule,

includes

business,

 profession,

occupation,

and

calling

every

kind.

(Source:

Added

____

Ill.

Reg.

________,

 effective

__________)

Section 104.210

 Examination of Adverse Party or Agency

and Hostile dtnesses;

 Compelling Appearance

Thereof

Hearing

Upon

the

hearing

 any action, any party thereto, or

any person for whose

 immediate benefit the action

is

prosecuted

 defended, or the officers, directors,

managing

agents

foreman

any

party

the

action,

may

called

and

examined

under

cross—examination

the

instance

any

adverse

party.

The

party

calling

for

 the examination may rebut the testimony given by

counter

testimony

and

may

impeach

the

 witness by proof

prior

inconsistent

statements.

 If the Hearing Officer determines that

 a witness is

hostile or

 unwilling,

 the witness may be examined

 by the

party calling him

as

 if under

 cross—examination.

The

party

calling

 occurrence witness, upon a showing

that

called

the

witness

good

faith

and

surprised

his

testimony,

may

impeach

the

witness

proof

prior

inconsistent

statements.

The

appearance

the

hearing

party

 a person who

the

time

the

hearing

 officer, director or

employee of a party may be

 required by serving the party

with

 a notice designating the person who

 is required

to

appear.

the

party

person

non—resident

the

State,

the

Hearing

Officer

shall

provide

order

such

terms

and

conditions

;in

connection

with

his

 appearance

the

hearing

are

just,

including

payment

his

reasonable_expenses.

The

notice

also

may

require

production at the hearing of documents or

 tangible

things.

(Source:

Added

_____

Ill.

Req.

_____,

 effective

__________)

SUBPART S H:

 POST—HEARING PROCEDURE AND

FINAL ACTION

Section

104.220

Becision

~Recodified~

Default

Failure

party

appear

the

date

set

for

hearing

failure

proceed

ordered

the

Board

shall

 constitute a

default.

The

Board

 shall thereafter enter such

 final order or

make such final determination as

 it shall deem appropriate under

the circumstances.

(Source:

 Added at

 Ill.

 Reg.

_____,

 effective

___________)

~g.262

—31—

Section 104.221

 Transcripts

a)

 The Board will provide

for

 a court reporter who shall

transcribe the entire hearing.

b)

 Any party or witness may move for correction of the

transcript.

 When

 the transcript

 is filed with the

Clerk,

 the Hearing Officer

 shall receive and rule on

corrections.

 Failure of any witness or party

 to correct

the transcript within 14 days

 after

 its receipt

 in Board

offices shall constitute waiver of the

 right to correct,

unless undue prejudice results.

(Source:

 Amended at

_____

 Ill.

 Reg.

_______,

 effective

___________

)

Section 104.222

 Record

The petition, objections,

 recommendation, transcript of the

hearing approved

 by the Hearing Officer, written statements by

the public

 in conformance with

 35 Ill.

 Adm. Code 104.204 and all

exhibits shall

 constitute

 the record.

(Source:

 Added

at

____

 Ill.

 Reg.

_______,

 effective

_________

Section 104.223

 Briefs and Oral Argument

The parties may file briefs with the Board

 in accordance with the

Hearing Officer’s schedule for completion of the record

or

 such

other reasonable time as the Hearing Officer shall determine

consistent with the statutory decision deadline and

 the needs of

the parties.

 However,

 in no event may briefs

 be scheduled for

submittal to the Board

 later than 20 days before

 the statutory

decision deadline.

 Any modification to the schedule for

completion of

 record must

 be by Hearing Officer Order

 filed with

the Board and served

 on the parties.

(Source:

 Added at

 Ill.

 Reg.

________

 effective

___________)

Section 104.224

 Calculation of Decision Deadline

a)

 The Board

 shall

 render

 a final decision upon the

petition within 90 days after the fiHng of the petition

120 days,

 except that any party petitioner may agree to

waive his the right

to

 a decision within 99 days the

prescribed period. ~ime inc’uded in a eentii’tuance

provided at the request of the petitioner shaH not be

counted towards the running of the 98 days~

b)

 Where the petition for variance

 is amended or

supplemental information

 is provided

 or hearing

requested subsequent

to

the

 initial

 filing, the 99 day

the 120 day decision period shaH will commence from the

date of filing with the Board and Agency of the

78.263

—32—

amendment,

 supplemental information or

 request for

hearing.

(Source:

 Amended at

 Ill.

 Req.

_______,

 effective

__________)

Section 104.225

 RCRA Variances:

 Board Decision

a)

 Decision periods for RCRA Variances are as provided

in

Section 38(c) of the Act.

b)

 The Board will not grant

 a variance from

 35 Ill. Adm.

code 703,

 720,

 721,

 722,

 723,

 724 or 725, or order

issuance or modification of a RCRA permit,

 unless the

procedures of this Part applicable

 to petitions for RCRA

Variances have been followed.

 The Board may grant a RCRA variance only to the extent

consistent with,

 and with conditions no less stringent

than, those which would

 be required by the Solid Waste

Disposal Act as amended

 by the Resource Conservation and

Recovery Act, and 40 CFR 260,

 261,

 262,

 263,

 264,

265

and 270.

 Variances shall

 require compliance with the

regulations

 in the shortest possible time.

d)

 The Board’s final Order may direct the Agency to

 issue

or modify a RCRA permit with conditions which may be set

forth specifically in the Order,

 or which may consist of

general guidelines to be followed by the Agency,

together with applicable regulations,

 in issuing

a

permit.

e)

 The Board shall

 send copies of its final Opinion and

Order

 to the Agency by messenger, to the United States

Environmental Protection Agency, the petitioner and any

other party by certified mail, and

 to all other persons

who have requested such information by first class mail.

Section 104.226

 Contents of Board Opinions and Orders

The Board

 shall prepare

 a written Opinion and Order

 for all

 final

determinations which

 shall

 include:

a)

 Findings of fact and conclusions

 of law on all material

issues.

The

final

order

determination

the

Board.

The

Board Order may include any or

all

 of the following:

fl

 The grant, denial

 or revocation of a variance

~J

 Such conditions as the policies of the Act or Board

regulations may require

78-264

—33—

A time schedule

 for ultimate compliance with the

Act and regulations

4)

 The posting

 of sufficient performance bond or other

security as provided

 by the Act

 to assure

compliance within the time prescribed; and

~j

 Such other order

 that may be appropriate.

~j

 The Clerk shall publish the order

 and opinion with the

vote

 of each Board Member

 recorded and shall notify the

parties_required

to

 be notified

 of the hearing from

which the order

 arose of such order and opinion.

(Source:

 Added

at

 Ill.

 Reg.

______,

 effective

__________)

SUBPART

I:

 RELIEF FROM FINAL ORDERS

Section 104.240

 Motions Subsequent

 to Entry of Final Order

Within

 35 days after

 the adoption of a final order, any party may

file

 a motion

 for reconsideration or modification

 of the order

or

to vacate

 the order

or

 for other

 relief.

 Response

 to said motion

shall

 be filed within 14 days from

 the filin~qthereof.

 A motion

filed within

 35 days stays enforcement

 of the

 final order

 until

final disposition of such motion.

 The time for appeal from such

order

 runs anew after

 the Board

 rules upon the motion.

 Failure

of

 a party to appeal

 a final order

or

 to file for appellate court

review within

35

 days of adoption of the final

 order waives all

right

 to review except

 as set out

 in Section 104.241.

(Source:

 Added at

 Ill. Reg.

________,

 effective

___________)

Section 104.241

 Relief from Final Orders

~j

 Clerical mistakes

 in orders or other parts of the record

and errors therein arising from oversight or omission

may be corrected

 by the Board at any time on its own

initiative or

 on the motion of any party and after such

notice,

 if any, as the Board orders.

 During the

pendency of

 an appeal,

 such mistakes may be

 so corrected

before

 the appeal

 is docketed

 in the appellate court,

and

 thereafter while

 the appeal

 is pending may be so

corrected with leave of the appellate

 court.

~j

 On motion and

 upon such terms

 as are just,

 the Board may

relieve

 a party or the party’s legal

 representative from

a final order,

 for the following:

1)

 Newly discovered evidence which existed at the time

of hearing and which

 by due diligence could not

have been timely discovered;

or

78-265

—34—

~j

 Fraud

 (whether 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 order was entered but

 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

 to the motion shall

 be notified

as provided by

35

 Ill. Adm. Code 104.140 and 104.142.

ci)

 A motion under

 subsection(b) shall

 be filed with the

Board within one year after

 entry of

 the order

 except

that

 a motion pursuant to subsection (b)(3)

 shall

be

filed within

 a reasonable time after

 entry of the order.

(Source:

 Added

at

 Ill. Reg.

_______,

 effective

____________)

APPENDIX A

OLD RULE NUMBERS REFERE1~CED(Repealed)

The

 feHowing taHe is provided to aid in referencing o~dBoard

ru’e numbers to section numbers pursuant to codification~

Shapter ~

 ProcedttrH Ru’es

35

H~T

AdmT

 Sede

Parts ~O3—~O9

Part fYt

 Variances

 Part 104i

 Variances

Ru’e 46~a-)

 Section ~94~~O

Ru~e48~-~a)~ ~c-)

 Section ~

Ru~e48~-(b-3-

 Section

~O4~~4

Ru~e48~-fd-)—-~g)

 Section ~

Ru~e

48~-th-)

 Section i84~~5

Ruie

46~

 Section ~84~~3

Ru’e 483

 Section

~94T~4O

Ru~e484

 Section

~O4~4~I

Ru’e 485

 Section ~O4~88

Ru~e

49?

 Section ~94~48i

Ru~e489

 Section ~O446O

Ruie

408

Section

 ~84~88

Ru’e 409

 Section i04-28~

Ru’e

4~0

 Section i04-~26

Ru~e

Section

~84-~82

Ru~e

Section

i84-~-99~

(Source:

 Repealed at

______

 Ill. Reg.

_______,

 effective

__________

IT

 IS SO ORDERED.

78-266

I,

 Dorothy

M.

 Gunn, Clerk of the Illinois Pollution Control

Board,

 hereby certify that the above Order was adopted on

the ~

 day of

 7?’7a.4.-/

 1987, by

 a vote of

_________

Dorothy M.

 unn, Clerk

Illinois Pollution Control Board

78.267