BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996
Part 106-134
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE A: GENERAL PROVISIONS
CHAPTER 1: POLLUTION CONTROL BOARD
PART 106
PETITION TO REVIEW POLLUTION CONTROL FACILITY SITING DECISIONS
SUBPART A: GENERAL PROVISIONS
Section
106.100
Applicability
106.102
Severability
106.104
Definitions
106.106
Description
SUBPART B: PETITION FOR REVIEW
Section
106.200
Who May File Petition
106.202
Parties
106.204
Time For Filing Petition
106.206
Filing and Service Requirements
106.208
Petition Content Requirements
SUBPART C: FILING OF LOCAL RECORD
Section
106.300
Record
106.302
Filing of the Record
106.304
Record Contents
106.306
Preparing of the Record
106.308
Certification of Record
SUBPART D: HEARING
Section
106.400
General
106.402
Authority and Duties of Hearing Officer
106.404
Public Participation
SUBPART E: BOARD REVIEW AND DECISION
Section
106.600
Preliminary Board Determination/Set for hearing
106.602
Dismissal of Petition
106.604
Decision Deadline
106.606
Burden of Proof/Standard of Review
AUTHORITY: Authorized by Sections 26 and 27 of the Environmental Protection Act (Act) [415 ILCS
5/26 and 27] and Implementing Sections 39.2, and 40.1 of the Act [415 ILCS 5/39.2 and 40.1].
SOURCE: Adopted in R97-8 at 18 Ill. Reg. _______________, effective __________________.
SUBPART A: GENERAL PROVISIONS
BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996
Part 106-135
Section 106.100 Applicability
a)
This Part applies to adjudicatory proceedings before the Illinois Pollution Control
Board (Board) concerning petitions to review a pollution control facility siting decision
made by local government pursuant to Sections 39.2 and 40.1 of the Environmental
Protection Act (Act). [415 ILCS 5/39.2 and 40.1].
b)
This Part shall be read in conjunction with 35 Ill. Adm. Code 101, which contains
procedures generally applicable to all adjudicatory Board proceedings. In the event of
a conflict between the requirements of 35 Ill. Adm. Code 101 and those of this Part,
the provisions of this Part apply.
Section 106.102 Severability
If any provision of this Part or its application to any person or under any circumstances is adjudged
invalid, such adjudication does not affect the validity of this Part as a whole or of any portion not
adjudged invalid.
Section 106.104 Definitions
For purposes of this Part, words and terms shall have the meaning as defined in 35 Ill. Adm. Code,
101.Subpart B, unless otherwise provided.
Section 106.106 Description
Pursuant to Section 39(c) of the Act, any new pollution control facility, prior to receiving a permit from
the Illinois Environmental Protection Agency (Agency) to construct and operate, must first receive
siting authority from the
county board of the county if in an unincorporated area, or the governing body
of the municipality when in an incorporated area, in which the facility is located
. [415 ILCS 5/39(c).]
Such siting authority can only be given pursuant to Section 39.2 of the Act and only after the local unit
of government conducts a public hearing which comports with general standards of fundamental
fairness. [415 ILCS 5/39.2.] Pursuant to Section 40.1 of the Act, a decision of local government to
site or deny siting of a new pollution control facility is reviewable by the Board. In reviewing the siting
decision the Board will apply the factors and standards set forth in Section 40.1 of the Act and in
Section 106.Subpart D of this Part. The decision of the Board is appealable to the Illinois appellate
court. [415 ILCS 5/41.]
SUBPART B: PETITION FOR REVIEW
Section 106.200 Who May File Petition
The following persons may file a petition for review of a decision concerning siting of a new pollution
control facility:
a)
Siting applicants. Any person who has properly applied to one or more units of local
government, pursuant to Section 39.2 of the Act, for siting authority of a new
pollution control facility and has been denied siting authority under Section 39.2 of the
Act, may file a petition for review of the decision to deny siting. The siting applicant
may also appeal conditions imposed in a decision granting siting. [415 ILCS 5/39.2.]
b)
Other persons. Any person who was physically present and has participated in the
public hearing conducted by the unit of local government and is adversely affected by
BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996
Part 106-136
a decision to approve siting may file a petition for review the decision to grant siting.
Associations who wish to file petitions to review must have been physically present at
the local government siting hearing as an association and be adversely affected by the
decision in order to appear before the Board as a petitioning association. Associations
who file a petition before the Board must be represented by an attorney in accordance
with 35 Ill. Adm. Code 101.400.
Section 106.202 Parties
a)
In a petition to review local government’s decision concerning a new pollution control
facility, the following are proper parties to the proceeding:
1)
The petitioner or petitioners are the persons described in Section 106.200 of
this Part. If there is more than one petitioner, they shall be referred to as co-
petitioners; and
2)
The unit(s) of local government whose decision is being reviewed shall be
named the respondent(s). In an appeal pursuant to Section 106.200(b) the
siting applicant must also be named as a respondent.
b)
Where the interests of the public would be served, the Board or hearing officer
may
allow intervention by the Attorney General or the State’s Attorney of the county in
which the facility will be located.
Section 106.204 Time For Filing Petition
A petition for review must be filed
within 35 days of the local siting authority’s action to approve or
disapprove siting
. [415 ILCS 5/40.1.] Action means the local government’s official written decision or
ordinance granting or denying local siting authority. [415 ILCS 5/39.2(e).] Pursuant to Section 39.2(e)
of the Act, action may also mean failure of the governing body to act within 180 of a request for siting
approval. . [415 ILCS 5/39.2(e).]
Section 106.206 Filing and Service Requirements
a)
Filing. The petition for review must be filed with the Clerk of the Board in accordance
with the filing requirements contained in the Board’s general procedural rules, found
at 35 Ill. Adm. Code 101.Subpart C and Section 106.208 of this Part.
b)
Service. The petition for review must be served upon all parties in accordance with the
Board’s service requirements contained in the Board’s general procedural rules, found
at 35 Ill. Adm. Code 101.Subpart C.
Section 106.208 Petition Content Requirements
a)
The petition for review must be accompanied by Board Form # - or reasonably similar
format which contains all information required on the relevant form. Board Form # --
is electronically available on the Board’s Home Page or may be obtained at the
Board’s Chicago or Springfield offices. Additionally, a copy of Board Form #___
appears in 35 Ill. Adm. Code 101.Appendix G, Illustration G.
.
b)
In addition to the requirements of 35 Ill. Adm. Code 101.Subpart C the petiton must
also include:
BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996
Part 106-137
1)
A copy of the local siting authority's written decision or ordinance;
2)
A statement, as to how the filing party is a proper petitioner under Section
106.200 of this Part. The statement may be included on Board Form # - or
reasonably similar format which contains all information required on the
relevant form. Board Form # -- is electronically available on the Board’s
Home Page or may be obtained at the Board’s Chicago or Springfield offices.
Additionally, a copy of Board Form #___ appears in 35 Ill. Adm. Code
101.Appendix G, Illustration G; and
3)
In accordance with Section 39.2 of the Act, a specification of the grounds for
the appeal, including any allegations for fundamental unfairness or any
manner in which the decision as to particular criteria is against the manifest
weight of the evidence. [415 ILCS 5/39.2(a).]
SUBPART C: FILING OF THE LOCAL RECORD
Section 106.300 Record
Pursuant to Section 39.2 of the Act, the siting authority is obligated to keep a complete record of its
proceedings. [415 ILCS 5/39.2(e).]
Section 106.302 Filing of the Record
The siting authority shall file the record of its proceedings with the Board as directed by Board or
hearing officer order. As the Board is under a tight decision deadline time frame in petitions to appeal
new pollution control facility siting decisions, failure to file the entire record on the date directed by the
Board or hearing officer may subject the respondent to a sanctions as may be ordered by the Board or
hearing officer in accordance with 35 Ill. Adm. Code 101.Subpart H.
Section 106.304 Record Contents
a)
The record should contain all information or evidence presented to the local siting
authority or relied upon by the local siting authority during its hearing process
including, but not limited to:
1)
The siting application;
2)
Any and all transcripts of local hearings;
3)
All briefs and other arguments and statements of parties and participants;
4)
All exhibits relied upon by the local siting authority in making its decision;
5)
All written public comments relevant to the local government proceeding;
6)
Minutes of all relevant open meetings of the siting authority;
7)
Notices of hearing and/or all relevant meetings of the siting authority;
8)
The written decision of the siting authority made pursuant to Section 39.2 of
the Act; and
BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996
Part 106-138
9)
Certificate of Record as described in Section 106.308 of this Part.
b)
The record shall contain the originals or legible copies of all documents, shall be
arranged in chronological sequence, and shall be sequentially numbered, placing the
letter "C" before the number of such page.
c)
Seven copies of the transcript and four copies of all other documents in the record
shall be filed with the Board.
Section 106.306 Preparing of the Record
Unless petitioner is a citizen or citizen’s group, the petitioner shall pay the costs of preparing and
certifying the record to the Board. If the petitioner is a citizen or citizen’s group,
such petitioner shall
be exempt from paying the costs of preparing and certifying the record
. [415 ILCS 39/2(n).]
Section 106.308 Certification of Record
The record filed with the Board shall be certified by the county clerk, if the siting authority is a county,
or the municipal clerk, if the siting authority is a municipality. The certification shall be entitled
"Certificate of Record on Appeal". The Certificate shall contain an index that lists the documents
comprising the record and shows the page number upon which they start and end. The Certificate of
Record shall be served on all parties.
SUBPART D: HEARING
Section 106.400 General
Hearings and discovery will be conducted in accordance with the provisions set forth in the Board’s
general procedural rules found at 35 Ill. Adm. Code 101.Subpart F.
Section 106.402 Authority and Duties of Hearing Officer
The authority and duties of the hearing officer are set forth in the Board's general procedural rules
found at 35 Ill. Adm. Code 101.Subpart F.
Section 106.404 Public Participation
Parties to the proceeding shall have all rights of examination and cross-examination relevant in any
judicial proceeding. Persons who are not parties as set forth in Section 106.202 of this Part are
considered non-party participants and will have such hearing participation rights as determined by the
hearing officer in accordance with 35 Ill. Adm. Code 101.628. As a general rule, non-party participants
may offer comment at a specifically determined time in the proceeding , but may not examine or cross-
examine witnesses for either party. In accordance with this Section and 35 Ill. Adm. Code 101.628,
public comment will not be considered testimony unless sworn and subject to cross examination.
SUBPART E: BOARD REVIEW AND DECISION
Section 106.500 Preliminary Board Determination/Set for hearing
Upon proper filing of the petition, the Board shall set the matter for hearing unless it determines that the
matter is frivolous or duplicitous as required by Section 40.1(b) of the Act. [415 ILCS 40.1(b).]
BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996
Part 106-139
Section 106.502 Dismissal of Petition
a)
The Board on its own motion or motion by any party, may dismiss any petition:
1)
Which is untimely filed pursuant to Section 106.204 of the Part;
2)
Which fails to name all parties as required by Section 39.2 of the Act [415
ILCS 39.2];
3)
Which fails to include the required fee and all information as required by
Section 106.206 of this Part; or
4)
Which fails to meet the requirements in 35 Ill. Adm. Code 101.Subpart C.
b)
Upon motion by any unit of local government which is required to prepare and certify
its record alleging that the applicant has failed to pay the costs of doing so, the Board
may enter a dismissal or other order as allowed by Section 39.2(n) of the Act. [415
ILCS 39.2(n).]
Section 106.504 Decision Deadline
In accordance with Section 40.1 of the Act only the applicant for siting may waive the decision
deadline. [415 ILCS 5/40.1.] Unless the applicant for siting waives the decision deadline in
accordance with 35 Ill. Adm. Code 101.308 of the Board’s general procedural rules, the Board shall
issue its decision within 120 days of the proper filing and service of a petition for review.
Section 106.506 Burden of Proof/Standard of Review
a)
The petitioner bears the burden of proof in accordance with Section 40.1(a) of the Act.
[415 ILCS 5/40.1(a) and (d) .]
b)
The Board may reverse the siting decision of the local siting authority only:
1)
If the decision is against the manifest weight of the evidence presented in the
local siting authority’s record;
2)
If the proceeding of the local siting authority did not comport with general
standards of fundamental fairness [415 ILCS 5/40.1]; or
3)
If the local siting authority did not have jurisdiction.
c)
Where the Board determines that the hearing of the local siting authority did not
comport with general standards of fundamental fairness it may, in its discretion,
remand the decision to the siting authority as an alternative to reversal. Any Board
order allowing for such remand will clearly set forth the reasons for the remand order
and set a time frame for the local siting authority to cure the defect upon remand.