TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE C: WATER POLLUTION

CHAPTER II: ENVIRONMENTAL PROTECTION AGENCY

PART 351

PROCEDURES AND REQUIREMENTS FOR CONFLICT RESOLUTION

IN REVISING WATER QUALITY MANAGEMENT PLANS

SUBPART A: INTRODUCTION

Section

351.101 Preamble

351.102 Purpose

351.103 Applicability

351.104 Definitions

SUBPART B: PROCEDURES FOR PROPOSING REVISIONS TO

WATER QUALITY MANAGEMENT PLANS

Section

351.201 Initiation of a Revision

351.202 Requirements of a Petition

351.203 Service and Parties

351.204 Public Comments

SUBPART C: PUBLIC HEARINGS

Section

351.301 Request for Hearing

351.302 Scheduling of Public Hearing

351.303 Notice of Public Hearing

351.304 Hearing Officer

351.305 Hearing Procedures

351.306 Transcript

SUBPART D: DECISION OF THE AGENCY

Section

351.401 Record

351.402 Decision of the Agency

351.403 Review of Decision of the Agency

SUBPART E: APPLICABILITY OF THESE RULES TO SPECIAL CASES

Section

351.501 Permit Issuance

351.502 Exceptions to Boundaries for Facility Planning Areas

AUTHORITY: Authorized by Sections 4(m), 4(n) and 39 of the Environmental

Protection Act (Ill. Rev. Stat. 1979, ch. 111 1/2, pars. 1004(m), 1004(n)

and 1039) and implementing Section 303(e) of the Clean Water Act (33 U.S.C.

1313 (3)).

SOURCE: Adopted and Codified at 6 Ill. Reg. 2597, effective March 1, 1982.

SUBPART A: INTRODUCTION

Section 4(m) of the Illinois Environmental Protection Act (Ill. Rev. Stat.

1979, Ch. 111 1/2, Par. 1001 et seq.) (Act) designates the Illinois

Environmental Protection Agency (Agency) as pollution control agency for

the State of Illinois for all purposes of the federal Clean Water Act (33

U.SC. 1251 et seq.). In addition, the Act specifically authorizes the

Agency, for purposes of Section 303(e) of the Clean Water Act, <Ito engage in

planning processes and activities, to develop plans in cooperation with

units of local government, other state agencies and persons, and to

promulgate procedural regulations for the holding of public hearings on the

planning process.>> (Ill. Rev. Stat. 1979, Ch. 111 1/2, Par. 1004(n)).

Section 303(e) requires Illinois to have a continuing planning process,

approved by the United States Environmental Protection Agency (USEPA),

resulting in Water Quality Management (WQM) Plans for all navigable waters

in the state. These Plans must incorporate the elements of any areawide

water quality management plan adopted under Section 208 of the Clean Water

Act and must provide procedures for revision of the WQM Plans. Revisions

to WQM Plans pursuant to these rules and to the Agency's continuing

planning process are incorporated into the annual program plan submitted to

USEPA and approved pursuant to Section 106 of the Clean Water Act.

These rules prescribe procedures and requirements for resolving conflicts

concerning point source discharges in the context of revising Illinois

Water Quality Management Plans.

a) These rules shall apply to the following revisions of WQM Plans:

1) Amendments to population projections for the twenty-year

planning period set forth in approved facilities plans that

are greater than 10% for communities under 10,00 population

or 5% for communities over 10,000 population;

2) Amendments identifying new designated management agencies;

3) Amendments terminating the status of designated management

agencies for failure to implement the requirements of a WQM

Plan;

4) Amendments to Facility Planning Area boundaries;

5) Amendments to include sewage treatment works not identified

in a WQM Plan where a facility planning agency, designated

management agency, or an areawide planning agency objects to

the inclusion of the sewage treatment works within its

boundaries. If there is no objection the WQM Plan shall be

amended by issuance of the National Pollutant Discharge

Elimination System (NPDES) permit for the treatment works;

6) Other amendments where a significant degree of public

interest exists to warrant the use of the conflict resolution

procedures set forth in these rules. The provisions of

Section 351.302 shall be considered in determining whether a

significant degree of public interest exists.

b) Unless the Director of the Agency determines otherwise, these

rules shall not apply to the following revisions of WQM Plans:

1) Amendments to the state Continuing Planning Process (CPP)

document;

2) Revisions contained in the annual program plan developed

pursuant to Section 106 of the Clean Water Act or to the

State/USEPA agreement;

3) Revisions which update information or which bring WQM Plans

into conformity with applicable laws and regulations.

a) Unless specified otherwise, all terms shall have the meanings set

forth in the Environmental Protection Act and the Clean Water Act

and regulations adopted under those Acts.

b) For purpose of these rules, the following definitions apply:

1) "Areawide planning agency" means an areawide planning agency

identified in accordance with Section 208 of the Clean Water

Act.

2) "Designated management agency" means a designated management

agency identified in accordance with Section 208 of the Clean

Water Act.

3) "Facility planning agency" means a facility planning agency

identified in accordance with Section 201 of the Clean Water

Act.

SUBPART B: PROCEDURES FOR PROPOSING REVISIONS TO

WATER QUALITY MANAGEMENT PLANS

a) A proposal to revise a WQM Plan shall be initiated by the filing

of a petition by the Agency or by a facility planning agency,

designated management agency, or areawide planning agency for the

area that is the subject of the proceeding. The petition shall be

filed with the Agency.

b) Since an areawide planning agency may have procedures to be

followed prior to its making any recommendation on a proposed

revision, Petitioners are encouraged to follow such procedures

prior to or concurrently with the procedures contained in these

rules.

a) A petition filed under these rules shall include, as applicable:

1) A clear, complete and concise statement of the revision(s)

sought;

2) If the petition is for a planning boundary change, it shall

include:

A) A map of the existing and proposed boundaries;

B) A description of the existing uses and proposed future

uses of:

i) The geographic area which is the subject of the

proposed revision, and

ii) The areas adjacent to the geographic area in (i).

3) An assessment, with supporting factual information, of the

environmental impacts which may result from the proposed

revision, including existing and proposed wasteloads and

facilities to collect, transport and treat such wasteloads;

4) An assessment of the present worth analysis of alternatives

to the proposed revision, including on-site and off-site

treatment where applicable;

5) If available, written evidence of concurrence or objection by

other agencies or by other persons who may be affected by the

proposed revision;

6) Other information requested by the Agency.

b) The Agency will consider a petition complete when all relevant

information set forth in this section has been provided.

a) The Petitioner shall serve a copy of its petition, either

personally or by registered or certified mail, upon each

governmental agency or other person who may be adversely affected

by the revision to the WQM Plan. At a minimum, service shall be

made on:

1) Any facility planning agency which may be affected by the

revision;

2) Any designated management agency responsible for point source

discharge control which may be affected by the revision;

3) Any areawide planning agency which may be affected by the

revision; and

4) Additional persons whom the Agency identifies within 10 days

of receipt of the petition.

b) Any person who may be adversely affected by the proposed revision

may file with the Agency a written request to be made a party.

Such request shall be made within 30 days of receipt of the

petition by the Agency. The Agency may extend this period when

necessary for a complete presentation of the facts and anticipated

effects of the proposed change.

c) The Agency shall notify the Petitioner of persons who have been

named parties. All such parties shall be deemed respondents.

d) All pleadings and submittals subsequent to the Petition shall be

served on all parties personally or by first class mail. One copy

shall be filed with the Agency with proof of service.

e) Service by first class mail shall be presumed complete four days

after mailing.

Any person may submit written comments on a petition filed under these

rules. In making the decision on the proposed revision(s), the Agency will

consider all comments received within 30 days after the filing of the

petition.

SUBPART C: PUBLIC HEARINGS

a) Any person may request a public hearing on the proposed revision

within 30 days of the filing of the petition. The Agency may

extend this period when necessary for a complete presentation of

the facts and anticipated effects of the proposed change.

b) The request shall include a statement of the person's interest in

the proceedings and of the purposes to be served by the hearing.

c) If the Petitioner does not request a hearing in the petition, it

shall be deemed a request to rule upon the petition without a

hearing.

a) The Agency shall schedule a public hearing when it determines that

there exists a significant degree of public interest in the

proposed revision.

b) In making this determination, the Agency shall consider:

1) The public interest as indicated by written comments and

requests for hearings on the proposed revision;

2) The nature of the proposed revision and its significance to

the WQM plan;

3) The likelihood that a public hearing will elicit relevant

information which is not otherwise part of the record before

the Agency.

c) The Agency may jointly sponsor a public hearing with another

agency.

a) The Agency shall serve notice of the public hearing, personally or

by certified or registered mail, on all parties at least 45 days

prior to the date of the hearing.

b) The notice shall include:

1) Information regarding the time, location and purpose of the

hearing;

2) A statement of the legal authority and jurisdiction under

which the hearing is held;

3) A concise statement of the issues to be discussed at the

hearing;

4) A statement that the hearing will be conducted in accordance

with these rules.

c) The Agency may provide additional notices of the hearing when the

circumstances and nature of the proposed revision warrant such

notice.

a) The Agency shall appoint a Hearing Officer who shall be named in

any notices of the hearing.

b) 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 and complete record.

a) All witnesses shall be sworn.

b) A party may cross-examine any witness to promote a full and fair

disclosure of the facts, subject to the evidentiary requirements

of these rules. The Hearing Officer may also question witnesses

within the same limits.

c) The admission of evidence shall be guided by the following

provisions:

1) <IThe rules of evidence and privilege, as applied in civil

cases in the circuit courts of Illinois, shall be followed.

However, evidence not admissible under such rules may be

admitted, except where precluded by statute, if the evidence

is of the type commonly relied upon by reasonable persons in

the conduct of their affairs.>>

2) Irrelevant, immaterial and unduly repetitious evidence shall

be excluded.

3) Any part of the evidence may be received in written form when

the hearing will be expedited and the interests of the

parties will not be prejudiced.

4) Objections to evidentiary offers may be made and shall be

noted in the record.

d) <IOfficial notice may be taken of:>>

1) <IMatters of which the circuit courts of Illinois may take

judicial notice:>>

2) <IGenerally recognized technical or scientific facts within the

Agency's specialized knowledge.>>

a) Within 15 days following completion of the public hearing, the

Petitioner shall furnish a transcript of the hearing to the

Agency.

b) The transcript shall be available for examination and copying by

any person, subject to the Agency's rules for public access to

agency information.

SUBPART D: DECISION OF THE AGENCY

The record shall include:

a) All pleadings, (including all notices and responses thereto),

motions and rulings;

b) Evidence received;

c) Matters of which official notice was taken;

d) The hearing transcript including offers of proof, objections and

rulings thereon;

e) Any report, opinion or decision by the Hearing Officer;

f) Memoranda or data submitted by Agency staff in their consideration

of the proposed revision;

g) Written comments received under Section 351.204 of these rules;

h) Recommendation of the designated areawide WQM planning agency and

the record supporting its recommendation.

a) After due consideration of the record, the Agency shall make a

final decision on the proposed revision to the WQM Plan.

1) In making its decision, the Agency shall consider all facts

and circumstances bearing upon the reasonableness of the

request including, but not limited to, the environmental

effects and the cost-effectiveness of achieving water quality

goals.

2) <IThe Agency's experience, technical competence and specialized

knowledge may be utilized in the evaluation of the evidence.>>

b) The decision may grant or deny the proposed revision, in whole or

in part, and may condition the revision upon the performance or

completion of activities specified in the decision.

c) The final decision shall be in writing. Copies of the decision

shall be served on all parties personally or by registered or

certified mail.

Any party may request that the Regional Administrator, United States

Environmental Protection Agency, Region V, review the decision of the

Agency pursuant to 40 CFR 35.1517(c).

SUBPART F: APPLICABILITY OF THESE RULES TO SPECIAL CASES

a) When the Agency determines that issuance of a permit may be

inconsistent with an approved WQM Plan, the Agency may request

that the areawide WQM Planning Agency, if any, review the

application and identify any provisions of the WQM Plan with which

the facility may be inconsistent.

b) If, after receipt of the areawide agency's evaluation, the Agency

determines that an inconsistency exists, the Agency shall deny the

permit and shall notify the applicant of its decision.

For purposes of issuing permits, other than NPDES permits, the Agency may

recognize exceptions to boundaries of facility planning areas without

revising the approved WQM Plan in the following circumstances.

a) When the General Assembly, by legislation, authorizes the

extension of sewer service to an area outside the facility

planning area established by the Agency pursuant to federal

regulations; or

b) When all of the following conditions are present:

1) The exception will not significantly impact wastewater

planning in any facility planning area;

2) A revision would otherwise be necessary because a proposed

sewer would cross a facility planning boundary; and

3) The designated facility planning agency, within whose

facility planning area the area to be serviced by the sewer

lies, has authorized such sewer extension by permit,

agreement or other written document.