TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE A: GENERAL PROVISIONS
CHAPTER II: ENVIRONMENTAL PROTECTION AGENCY
PART 187
REGULATORY INNOVATION PROJECTS
SUBPART A: PURPOSE; DEFINITIONS AND GENERAL PROVISIONS
187.100 Purpose
187.102 Definitions
187.104 Relation to Other Rules and Regulatory Innovation Programs
187.106 Public Access to Pilot Program Correspondence
187.108 Confidential Business and Trade Secret Information
SUBPART B: PARTICIPATION IN PILOT PROGRAM
187.200 Nature and Duration of Pilot Program
187.202 Eligibility for Participation
SUBPART C: STAKEHOLDER INVOLVEMENT
187.300 Stakeholder Involvement
187.302 Stakeholder Group, Members
187.304 Sponsor Obligations
SUBPART D: PROCEDURES
187.400 Letter of Intent; Agency Response
187.402 Development of an EMSA
187.404 Public Notice, Comment and Hearing
187.406 Criteria for Approval of an EMSA
187.408 Execution of an EMSA
187.410 Performance Assurance
187.412 Modification of an EMSA
187.414 Termination of an EMSA
187.416 Renewal of an EMSA
AUTHORITY: Implementing and authorized by Section 52.3 of the Environmental Protection
Act [415 ILCS 5/52.3].
SOURCE: Adopted at 22 Ill. Reg. 6217, effective March 20, 1998; amended at 26 Ill. Reg.
17734, effective November 27, 2002.
SUBPART A: PURPOSE; DEFINITIONS AND GENERAL PROVISIONS
Section 187.100 Purpose
The purpose of this Part is to implement a voluntary pilot program pursuant to Section 52.3 of
the Act by which the Agency may enter into Environmental Management System Agreements or
EMSAs with persons regulated under the Act to implement innovative environmental measures,
even if one or more of the terms of such agreements are inconsistent with otherwise applicable
statutes or regulations of the State.
Section 187.102 Definitions
For purposes of this Part, the words and terms used in this Part shall have the meanings given
below. Words and terms not defined in this Part, if defined in the Act, shall have the meanings
as ascribed in the Act.
"Act" means the Environmental Protection Act [415 ILCS 5].
"Agency"
means the
Environmental Protection Agency established by the Act.
(Section 3.08 of the Act).
"Director" means the Director of the Illinois Environmental Protection Agency.
"Environmental Management System" means the system by which an entity
achieves continuous environmental improvement by integrating environmental
management into on-going business planning and manages environmental
performance, including, but not limited to, environmental management systems
implementing International Organization for Standardization (ISO) 14001
standard.
"Environmental Management System Agreement (EMSA)" means the agreement
between the Agency and a sponsor that describes the innovative environmental
measures to be implemented, schedules for attaining 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 Program" means the program described in this Part that allows the use of
EMSAs to promote innovative environmental measures.
"Pilot Project" means an innovative environmental project covering one or more
designated facilities, designed and implemented in the form of an EMSA executed
by the Agency and a sponsor in accordance with this Part.
"Sponsor" means the proponent of a pilot project that enters into an EMSA with
the Agency.
Section 187.104 Relation to Other Rules and Regulatory Innovation Programs
a) The provisions of this Part shall apply to any pilot project developed pursuant to
Section 52.3 of the Act.
b) Nothing in this Part shall be construed to modify or alter any federal
environmental statute or regulation applicable to a pilot project or its sponsor,
owner or operator. An EMSA that seeks to modify or alter a federal
environmental statute or regulation applicable to a pilot project or its sponsor,
owner or operator must follow any procedures applicable under such law.
c) No EMSA entered into by the Agency may allow a participant in the pilot
program to cause air or water pollution or an unauthorized release in violation of
the Act.
d) Nothing in this Part shall be construed to affect any fees that a sponsor or an
owner or operator of a facility covered by an EMSA may be subject to under any
State or federal environmental statute or regulation.
e)
Nothing in this Section shall limit the authority or ability of a State's Attorney or
the Attorney General to proceed pursuant to Section 43(a) of
the
Act, or to
enforce Section 44 or 44.1 of
the
Act, except that for the purposes of enforcement
under Section 43(a), 44 or 44.1, an
EMSA
shall be deemed to be a permit issued
under
the
Act to engage in activities authorized under the
EMSA. (Section 52.3-
4(e) of Act)
Section 187.106 Public Access to Pilot Program Correspondence
The Agency shall record and maintain a list of all correspondence sent and received by the
Agency relating to participation in the pilot program, and such information, to the extent it does
not constitute confidential business or trade secret information, shall be made available for
review by the public.
Section 187.108 Confidential Business and Trade Secret Information
To the extent practicable, the Agency shall not designate EMSA related data as confidential
business or trade secret information. A sponsor must identify any information in a pilot project
document, including an EMSA, that it claims constitutes confidential business or trade secret
information, and must justify such claim in accordance with 35 Ill. Adm. Code 120 and 2 Ill.
Adm. Code 1827.
SUBPART B: PARTICIPATION IN PILOT PROGRAM
Section 187.200 Nature and Duration of Pilot Program
a) It is within the sole discretion of the Agency to enter into an EMSA under this
Part.
b) The Agency may reject a proposed pilot project at any time prior to execution of
an EMSA, and any decision by the Agency to reject a proposed pilot project is not
appealable. (See Section 52.3-1(c) of the Act.)
c) An initial EMSA under this Part shall be for a term not to exceed 5 years. An
EMSA may, in the Agency's discretion, be renewed for additional appropriate
time periods.
(Source: Amended at 26 Ill. Reg. 17734, effective November 27, 2002)
Section 187.202 Eligibility for Participation
a) Except as provided in subsection (b) of this Section, any person subject to a
requirement of the Act or a regulation promulgated thereunder may participate in
the pilot program.
b) The following persons shall not be eligible to participate in the pilot program:
1) Any person that is currently subject to an environmental enforcement
action under the Act or regulations promulgated thereunder;
2) Any person that has failed to renew any permit, or submit a complete
Clean Air Act Permit Program permit application, as may be required by
the Act or regulations promulgated thereunder; and
3) Any person that has failed to pay a required fee or penalty to the State of
Illinois.
c) In determining whether a person is eligible to participate in the pilot program, the
Agency may consider the person's past environmental performance, including, but
not limited to, pre-enforcement and enforcement actions and previously
adjudicated violations.
SUBPART C: STAKEHOLDER INVOLVEMENT
Section 187.300 Stakeholder Involvement
An EMSA shall provide for productive stakeholder involvement in a pilot project's development
and implementation. The nature and extent of stakeholder involvement will be determined on a
case by case basis, and will be fully described in an EMSA.
Section 187.302 Stakeholder Group, Members
a) A stakeholder group assembled by a sponsor shall represent a cross-section of
persons interested in a proposed pilot project, and may include, though need not
be limited to, representatives from:
1) Community groups, including citizen groups interested in environmental,
economic or sustainable development issues;
2) Economic and business groups, including trade associations and labor
organizations;
3) Academic institutions;
4) Religious organizations; and
5) Federal, State and local governmental entities.
b) Any person interested in a proposed pilot project who has not been selected by a
sponsor to participate in the stakeholder group assembled for the proposed pilot
project may so notify the Agency. The Agency shall consider this notification in
determining whether to enter into an EMSA with the sponsor.
Section 187.304 Sponsor Obligations
a) If a proposed pilot project is technically complex, the sponsor of the pilot project
may be required to provide technical or other assistance, at the sponsor's expense,
in order to promote informed participation by members of the stakeholder group.
Any such technical assistance shall be provided by persons that are acceptable to
both the sponsor and the stakeholder group.
b) A sponsor of a pilot project shall establish, in cooperation with the stakeholder
group, an on-going communication process in order to keep the stakeholder group
informed regarding the status of the pilot project. The process shall include, at a
minimum, annual meetings and periodic distribution of performance information
that clearly conveys the progress of the pilot project, problems that have been
encountered and any corrective action that has been taken in response thereto.
Information pertinent to the pilot project shall be communicated in a clear and
understandable manner. Scientific and other complex information should be
explained in a manner that provides for productive stakeholder involvement.
SUBPART D: PROCEDURES
Section 187.400 Letter of Intent; Agency Response
a) In order to initiate the process of entering into an EMSA, the sponsor of a
proposed pilot project shall submit a letter of intent to the Director that shall
include:
1) A general description of the proposed pilot project;
2) Identification of each environmental statute, regulation and permit that is
applicable to the proposed pilot project and any permit appeals, variances,
or adjusted standard petitions which are currently applicable to the
proposed pilot project or are pending before the Illinois Pollution Control
Board or any court;
3) A statement by the sponsor regarding the compliance status of the
proposed pilot project and its sponsor, owner and operator with all
applicable State and federal environmental statutes and regulations. Any
changes to the compliance status of the proposed pilot project and its
sponsor, owner and operator during development of an EMSA must be
promptly reported to the Agency; and
4) Identification of persons or groups whom the sponsor believes should
serve as members of the stakeholder group in the development and
implementation of the proposed pilot project.
b) The Agency shall respond in writing to a letter of intent within 60 days after
receipt of such letter. Such response shall include a determination of whether the
letter of intent contains the information required by subsection (a) of this Section,
as well as a determination whether development of an EMSA for the proposed
pilot project is warranted.
1) If the Agency determines that the letter of intent does not contain
information required by subsection (a) of this Section, it may identify such
information and provide the sponsor with an opportunity to revise and
resubmit the letter of intent.
2) If the Agency determines that the proposed pilot project, as described in
the letter of intent, does not warrant development of an EMSA, it shall
state the basis for its decision.
3) If the Agency determines that the proposed pilot project, as described in
the letter of intent, contains the information prescribed by subsection (a) of
this Section and warrants development of an EMSA, it shall notify the
sponsor that it may proceed with development of a draft EMSA.
Section 187.402 Development of an EMSA
a) The Agency and the sponsor shall decide upon an acceptable development
schedule for the EMSA and the proposed pilot project.
b) A sponsor shall submit to the Director a draft EMSA. At a minimum, the draft
EMSA shall include:
1) Identification of the sponsors;
2) Identification of all State and federal environmental statutes and
regulations applicable to the proposed pilot project and the owner or
operator of the proposed pilot project;
3) Identification of any State or federal environmental statutes and
regulations which are inconsistent with the terms of the draft EMSA and
would cease to be applicable should the EMSA be approved;
4) A description of the innovative environmental measures being proposed as
part of the pilot project;
5) An explanation of the manner in which the proposed pilot project will
achieve the stated purposes in subsection (b) of Section 52.3-1 of the Act;
6) Identification of those members of the general public, representatives of
local communities, and environmental groups who have an interest in the
proposed pilot project;
7) A description of the manner in which the EMSA will provide for
productive involvement by the stakeholder group in the design and
implementation of the proposed pilot project;
8) A description of the measures or techniques that will be used to
demonstrate ongoing compliance with the EMSA, including, at a
minimum, an annual evaluation of the pilot project;
9) Terms and conditions for voluntary termination of the pilot project; and
10) An explanation of the process by which statutory or regulatory
environmental requirements that become applicable to the pilot project or
its sponsor, owner or operator after the effective date of the EMSA shall
be addressed.
c) Upon submittal of the initial draft EMSA, a sponsor shall provide an executive
summary of the initial draft EMSA and proposed pilot project described and
submitted in accordance with subsection (b) of this Section to the following
persons and inform them that they may obtain the complete document from either
the Agency or the sponsor:
1) Members of the Illinois General Assembly representing the legislative
districts in which the pilot project is located;
2) The Illinois Attorney General; and
3) The State's Attorney of the county in which the pilot project is located.
d) A sponsor shall provide notice, by publication on a single date in a newspaper of
general circulation in the area in which the proposed pilot project is located, that it
has submitted an initial draft EMSA for consideration by the Agency. Such
notice shall include a statement that interested persons may contact the sponsor to
request that they be named to the stakeholder group in the development and
implementation of the proposed pilot project. The notice shall be provided within
7 calendar days from the date the initial draft EMSA has been submitted to the
Agency in accordance with subsection (b) of this Section.
e) The Agency shall give preference to and allow greater incentives in an EMSA for
pilot projects that include provisions for operating sustainably through continuous
improvements in products and processes. Desirable components of a pilot project
include, but are not limited to, the following:
1) Incorporating source reduction into core business practices;
2) Avoiding the production of waste and pollution in products and processes;
3) Accounting for total environmental impact throughout the life cycle of
products and services;
4) Improving efficiency in the use of raw materials, energy, water or other
resources;
5) Employing planning processes or techniques to identify source reduction
and product stewardship opportunities;
6) Training and encouraging employees to identify opportunities for
environmental improvement;
7) Protecting and enhancing natural resources; and
8) Ensuring that information and reporting systems track progress toward
goals and document improvements.
f) The Agency shall encourage the development and use of Environmental
Management Systems as part of a pilot project.
g) The Agency shall reject proposed pilot projects that generate adverse
environmental consequences, particularly those stimulating intermedia pollutant
transfers without providing a net environmental gain.
Section 187.404 Public Notice, Comment and Hearing
Prior to entering into an EMSA, the Agency shall provide notice to the public, including an
opportunity for public comment and hearing in accordance with the procedures set forth at 35 Ill.
Adm. Code 164. All costs associated with such notice, comment and hearing shall be paid by the
sponsor of the proposed pilot project. Public comments on a proposed pilot project and an
EMSA may be submitted to the Agency at any time prior to the public notice and comment and
hearing provided for by 35 Ill. Adm. Code 164.
Section 187.406 Criteria for Approval of an EMSA
a) In accordance with Section 52.3-1 of the Act, the Agency may approve an EMSA
only if the sponsor demonstrates that the proposed pilot project would:
1)
Achieve emissions reductions or reductions in discharges or 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
the Act in a manner that is
clearly superior to the existing regulatory means
.
b) An EMSA under this Part shall contain adequate provisions to ensure that its
terms and conditions are performed by the sponsor. Performance of the terms and
conditions of an EMSA must be measurable and verifiable, and shall be
monitored, documented and reported by a sponsor in a clear and complete
manner.
Section 187.408 Execution of an EMSA
a) An EMSA developed in accordance with this Part, and which has been approved
by the Director, shall become effective upon signature by the sponsor and the
Director.
b) An EMSA shall operate in lieu of all applicable environmental requirements
under Illinois statutes, regulations, and existing permits that are identified in the
EMSA. Any environmental statute, regulation or condition in an existing permit
that differs from a term or condition in an EMSA shall cease to apply from the
effective date of an initial or renewed EMSA until it is terminated or expires.
c) An EMSA executed in accordance with this Part shall be made publicly available
and shall be distributed to all members of the stakeholder group.
Section 187.410 Performance Assurance
a) The Agency is authorized to monitor compliance with the EMSA and may access
and enter the facilities, buildings or property that are the subject of the pilot
project for purposes of monitoring compliance, and to require such recordkeeping
and reporting as it deems appropriate, including a final report assessing the
environmental, regulatory and economic results of the pilot project.
b) The sponsor of an EMSA shall specify the manner in which performance of the
terms and conditions of an EMSA shall be assured. The Agency shall consider
the following in determining whether an EMSA contains adequate provisions to
assure performance:
1) The technical complexity of the proposed pilot project;
2) The environmental risk associated with the proposed pilot project; and
3) The uncertainty that the proposed innovative environmental measures
authorized by the EMSA will be successful.
c) A sponsor's performance of the terms and conditions of an EMSA shall be
assessed not less than annually, and such assessment may include an evaluation of
the sponsor's performance by a third party acceptable to the Agency and qualified
to make such an evaluation.
d) Notification of Nonperformance
1) A sponsor shall notify the Agency and all members of the stakeholder
group of any nonperformance of a term or condition of an EMSA. A
notification under this subsection (d) shall include a description of any
activity performed by the sponsor to cure or mitigate the effects of the
nonperformance.
2) The Agency shall investigate and monitor a sponsor to determine whether
the sponsor has responded adequately to any nonperformance, and shall
notify all members of the stakeholder group of the results of its
investigation.
e) Upon identification of nonperformance of the terms or conditions of an EMSA,
the Agency may, consistent with this Part, enforce the terms of such EMSA.
f) An EMSA may contain provisions for alternative dispute resolution.
Section 187.412 Modification of an EMSA
a) An EMSA executed under this Part may be amended by mutual agreement
between the Agency and a sponsor, provided all members of the stakeholder
group have received prior written notice and an opportunity to comment on a
proposed modification to the EMSA. An EMSA may be amended without public
notice as specified under Section 187.402(d) or 187.404 of this Part.
b) Either the Agency or a sponsor may request modification of an EMSA at any
time. If an agreement cannot be reached on a proposed modification within 60
calendar days, the party requesting the proposed modification may initiate
proceedings to terminate the EMSA.
Section 187.414 Termination of an EMSA
a) Termination by the Agency
1)
In the case of deficient performance of any term or condition in an EMSA
that prevents achievement of the stated purposes in subsection (b) of
Section 52.3-1 of the Act, the Agency may terminate the EMSA and the
owner or operator of a pilot project
may be subject to enforcement in
accordance with the provisions of Section 31 or 42 of
the Act.
(Section
52.3-4(b) of the Act)
2)
If the EMSA is terminated
pursuant to this subsection (a), the owner or
operator of a pilot project
shall have sufficient time to apply for and
receive any necessary permits to continue the operations in effect during
the course of the EMSA. Any such application shall also be deemed a
timely and complete application for renewal of an existing permit under
applicable law.
(Section 52.3-4(c) of the Act)
3)
The Agency shall follow procedures for involuntary termination
established by the Board.
b) Termination by the Sponsor
1) A sponsor may terminate an EMSA at any time upon written notice to the
Agency and members of the stakeholder group. Notice must be given at
least 90 days prior to termination; provided, however, that a sponsor may,
with the Agency's approval, immediately terminate an EMSA upon notice
to the Agency if continuing to operate under the EMSA would cause air or
water pollution or an unauthorized release in violation of the Act.
2) Upon termination of an EMSA pursuant to this subsection (b), a sponsor
shall be subject to, and shall comply with, all applicable State, federal and
local environmental statutes, regulations and ordinances.
Section 187.414 Termination of an EMSA
a) Termination by the Agency
1)
In the case of deficient performance of any term or condition in an EMSA
that prevents achievement of the stated purposes in subsection (b) of
Section 52.3-1 of the Act, the Agency may terminate the EMSA and the
owner or operator of a pilot project
may be subject to enforcement in
accordance with the provisions of Section 31 or 42 of
the Act.
(Section
52.3-4(b) of the Act)
2)
If the EMSA is terminated
pursuant to this subsection (a), the owner or
operator of a pilot project
shall have sufficient time to apply for and
receive any necessary permits to continue the operations in effect during
the course of the EMSA. Any such application shall also be deemed a
timely and complete application for renewal of an existing permit under
applicable law.
(Section 52.3-4(c) of the Act)
3)
The Agency shall follow procedures for involuntary termination
established by the Board.
b) Termination by the Sponsor
1) A sponsor may terminate an EMSA at any time upon written notice to the
Agency and members of the stakeholder group. Notice must be given at
least 90 days prior to termination; provided, however, that a sponsor may,
with the Agency's approval, immediately terminate an EMSA upon notice
to the Agency if continuing to operate under the EMSA would cause air or
water pollution or an unauthorized release in violation of the Act.
2) Upon termination of an EMSA pursuant to this subsection (b), a sponsor
shall be subject to, and shall comply with, all applicable State, federal and
local environmental statutes, regulations and ordinances.
Section 187.416 Renewal of an EMSA
a) An initial agreement may be renewed for additional appropriate periods if the
Agency finds the EMSA continues to meet applicable requirements and the
purposes of Section 52.3-1 of the Act.
b) In determining whether to renew an EMSA, the Agency shall consider all relevant
factors, including but not limited to:
1) The environmental, regulatory and economic results of the pilot project
during the initial term of the EMSA;
2) The likelihood that renewal of the EMSA will advance the purposes of
Section 52.3-1 of the Act; and
3) Stakeholder satisfaction
with the pilot project.
c) It shall be within the sole discretion of the Agency to renew an EMSA and its
decision shall not be appealable. A sponsor may request that the Agency hold a
public hearing on its decision to deny a renewal application, to be held at the
sponsor's sole cost and expense; however, it is within the sole discretion of the
Agency to hold a hearing on the denial of a renewal application.
d) Prior to renewing an EMSA under this Section, the Agency shall comply with the
public notice, comment and hearing provisions of Section 187.404 of this Part.
e) A sponsor requesting to renew an EMSA shall submit its renewal application to
the Agency no later than 6 months prior to the expiration of the initial EMSA. The
Agency shall have 60 days after receipt to accept or reject a renewal application.
The Agency's failure to notify an applicant that it has accepted a renewal
application shall be deemed a rejection of the renewal application. If the Agency
rejects the renewal application, the pilot project and its owner or operator shall be
in compliance with all environmental laws, regulations and ordinances applicable
to the pilot project and its owner or operator within 6 months after expiration of
the initial EMSA.
(Source: Amended at 26 Ill. Reg. 17734, effective November 27, 2002)